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Bell v. Commissioner of Correction

Court of Appeals of Connecticut

August 7, 2018

LEON BELL
v.
COMMISSIONER OF CORRECTION

          Argued October 24, 2017

         Procedural History

         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the Superior Court in the judicial district of Tolland and tried to the court, Oliver, J.; thereafter, the petition was withdrawn in part; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Reversed; judgment directed; further proceedings.

          David B. Rozwaski, assigned counsel, for the appellant (petitioner).

          Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Tamara A. Grosso, assistant state’s attorney, for the appellee (respondent).

          DiPentima, C. J., and Lavine and Sheldon, Js.

          OPINION

          DiPENTIMA, C. J.

         The petitioner, Leon Bell, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.[1] The habeas court denied the petition after concluding that, although the petitioner was entitled to a jury instruction in accordance with the seminal case of State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), that failure was harmless beyond a reasonable doubt. The dispositive issue in this appeal is whether the habeas court correctly concluded that the absence of a Salamon instruction in the petitioner’s criminal trial was harmless beyond a reasonable doubt. In a separate opinion, which we also release today; see Banks v. Commissioner of Correction, 184 Conn.App. 101, A.3d (2018); we considered the same legal claim under similar facts. In Banks, we concluded that, under the facts of that case, the respondent, the Commissioner of Correction, failed to meet his burden to prove that the absence of the Salamon instruction was harmless beyond a reasonable doubt and therefore the habeas court in that case improperly denied the habeas petition. Id., 132. Our analysis and conclusion in Banks controls the resolution of the present case. Accordingly, we reverse the judgment of the habeas court and remand the case with direction to grant the petition for a writ of habeas corpus and to proceed with a new trial on the kidnapping charges.

         The following facts and procedural history are relevant. After a jury trial, the petitioner was convicted of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), two counts of burglary in the third degree in violation of General Statutes § 53a-103 (a), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), and two counts of larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). See State v. Bell, 93 Conn.App. 650, 652, 981 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101 (2006). Following the petitioner’s convictions, the court, Mullarkey, J., sentenced the petitioner to a total effective sentence of thirty-six years incarceration.

         The criminal charges stemmed from two separate incidents occurring at Friendly’s restaurants, one in Manchester on April 12, 2001, and the other in Glastonbury on April 14, 2001, during which the petitioner instructed the respective victims, employees of Friendly’s, to enter walk-in refrigerators after ordering them to open the restaurants’ safes. See id., 652–53. The state charged the petitioner in two separate long form informations, which the court consolidated for trial; see id., 654; each information alleged one count each of robbery in the first degree, burglary in the third degree, kidnapping in the first degree, and larceny in the third degree. Both kidnapping charges alleged in relevant part that the petitioner had violated § 53a-92 (a) (2) (B) when he ‘‘abducted another person and restrained the person abducted with the intent to accomplish and advance the commission of a felony (to wit: a robbery).’’

         After this court affirmed the petitioner’s convictions on direct appeal and prior to the final determination of his first habeas petition,[2] the law fundamentally changed with regard to kidnapping offenses when our Supreme Court decided State v. Salamon, supra, 287 Conn. 509, and Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011). See, e.g., Hinds v. Commissioner of Correction, 321 Conn. 56, 66–69, 136 A.3d 596 (2016) (describing shift in interpretation of kidnapping statutes). ‘‘Pursuant to the holdings of these decisions, a [petitioner] 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 [petitioner’s] confinement or movement of the victim was not merely incidental to the [petitioner’s] commission of some other crime or crimes.’’ Wilcox v. Commissioner of Correction, 162 Conn.App. 730, 736, 129 A.3d 796 (2016); see also Hinds v. Commissioner of Correction, supra, 69 (as matter of state common law, policy considerations weighed in favor of retroactive application of Salamon to collateral attacks on judgments rendered final prior to release of Salamon decision).

         The petitioner, self-represented at the time, commenced a second habeas action on June 8, 2012, which he later amended after being appointed counsel (operative petition). Among other allegations, he claimed that his two kidnapping convictions were invalid because the trial court had not instructed the jury in accordance with Salamon and Luurtsema.[3] The respondent filed a return on January 23, 2015, denying the material allegations of the operative petition. A one day habeas trial took place on January 28, 2015. At that proceeding, the habeas court admitted into evidence the transcripts from the petitioner’s criminal trial.

         The habeas court, Oliver, J., issued its memorandum of decision on August 12, 2015. Although the operative petition contained three counts; see footnote 1 of this opinion; the court noted that ‘‘[t]he gravamen of the petitioner’s claims is that his criminal jury was not properly instructed on the kidnapping charge[s] and that he, pursuant to . . . State v. Salamon, [supra, 287 Conn. 509], is entitled to have a properly instructed jury decide the kidnapping charge[s].’’ After determining that the petitioner’s due process claim-count three- rested ‘‘[a]t the heart of all counts,’’ the court noted that, as alleged, the petitioner’s failure to prove count three would dispose of his additional claims. The court therefore first addressed count three.

         The court concluded that the petitioner failed to prove that he was denied due process.[4] Although it determined that the jury should have been instructed in accordance with Salamon, the court concluded that the lack of such an instruction was harmless. With respect to assessing harm, the court considered whether, ‘‘in examining the entire record, this court [was] satisfied beyond a reasonable doubt that the omitted nonincidental restraint element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same if the jury had been so instructed.’’ The court stated that the record ‘‘clearly demonstrate[d] the overwhelming and uncontested evidence of nonincidental restraint of the two victims.’’ More specifically, it concluded that ordering both victims of the Manchester and Glastonbury robberies to enter walk-in refrigerators was ‘‘not necessary to commit the [robberies]. Any [such] restraint was not inherent in the [robberies] . . . and helped prevent the victim[s] from summoning assistance, thereby reducing the risk of the petitioner being detected.’’ Accordingly, the court concluded, ‘‘beyond a reasonable doubt,’’ that the jury would have found the petitioner guilty of two counts of kidnapping even if the jurors had been instructed properly pursuant to Salamon.

         Due to the petitioner’s failure to prove his due process claim, the court denied the petition for a writ of habeas corpus. Following that denial, the habeas court granted his petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

         We begin with our standard of review. ‘‘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.) Hinds v. Commissioner of Correction, supra, 321 Conn. 65. ‘‘The applicability of Salamon and whether the trial court’s failure to give a Salamon instruction was harmless error are issues of law over which our review is plenary.’’ Farmer v. Commissioner of Correction, 165 Conn.App. 455, 459, 139 A.3d 767, cert. denied, 323 Conn. 905, 150 A.3d 685 (2016); see also Hinds v. Commissioner of Correction, supra, 60, 65; Nogueira v. Commissioner of Correction, 168 Conn.App. 803, 814, 149 A.3d 983, cert. denied, 323 Conn. 949, 169 A.3d 792 (2016).

         The petitioner claims that the habeas court improperly concluded that he was not deprived of due process when the jury found him guilty of kidnapping in the first degree without being instructed pursuant to Salamon. According to the petitioner, placing both victims in walk-in refrigerators was ‘‘clearly incidental’’ to, and was part of the ‘‘continuous activity’’ of, robbing the Friendly’s restaurants. Therefore, the petitioner argues that the habeas court improperly concluded that the lack of Salamon instructions was harmless beyond a reasonable doubt.[5]

         In response, the respondent argues that the failure to give a Salamon instruction was ‘‘harmless under any applicable standard.’’[6] According to the respondent, the robberies occurred before the petitioner forced both victims into the walk-in refrigerators.[7] Because of this, the respondent maintains that confining the victims in the walk-in refrigerators was not necessary to commit the robberies, nor was it the type of incidental restraint contemplated by Salamon. Simply put, the respondent contends that confining the victims in the walk-in refrigerators had independent legal significance, and ‘‘establish[ed] [the petitioner’s] intent to prevent the victims’ liberation for a longer period of time and to a greater degree than was necessary for the commission of the robberies.’’

         The issue presented herein is not whether there was sufficient evidence to convict the petitioner of both kidnapping and robbery. Banks v. Commissioner of Correction, supra, 184 Conn.App. 103; see also Hinds v. Commissioner of Correction, supra, 321 Conn. 91. Similarly, it is not whether a reasonable probability exists that a jury, properly instructed in accordance with Salamon, would reach a different result. Banks v. Commissioner of Correction, supra, 103. Instead, the respondent bears the ‘‘arduous burden of demonstrating that the omission of an instruction on incidental restraint did not contribute to the verdict.’’ Id. We conclude that this burden has not been met, and, therefore, we reverse the judgment of the habeas court.[8]

         We recite, in some detail, the underlying facts surrounding the Manchester and Glastonbury robberies, which the jury reasonably could have found, as part of our analysis. See Nogueira v. Commissioner of Correction, supra, 168 Conn.App. 814–15; see also State v. Bell, supra, 93 Conn.App. 652–54. At approximately 1 a.m. on April 12, 2001, Cheryl Royer was the last employee to leave the Friendly’s restaurant in Manchester. As she was exiting the restaurant, the petitioner approached her, stated that he had a gun, and ordered her to ‘‘get back inside’’ and to ‘‘give him the money.’’ Once Royer informed the petitioner that she did not have any money, the petitioner told her ‘‘to get the money from the safe.’’ The petitioner and Royer entered the restaurant together and walked to the manager’s office, the location of the safe. Royer then opened the safe at the petitioner’s direction and ‘‘was told to sit in the chair in the corner and turn away.’’ After approximately ‘‘[a] minute’’ or ‘‘[a] matter of minutes’’ sitting in the chair, the petitioner told Royer ‘‘to go into the walk-in refrigerator.’’ The walk-in refrigerator was approximately fifteen feet down the hall from the manager’s office, and, after the petitioner finished looting the safe, he ordered Royer to proceed into the refrigerator. Once she entered the refrigerator, and after the refrigerator door shut behind her, the petitioner told her ‘‘to stay in there for fifteen minutes.’’[9] Royer smoked part of a cigarette, and, after a few minutes, she left the refrigerator and ran into the office to call the police. The petitioner was not in the restaurant when Royer exited the refrigerator.

         Two days later, on April 14, 2001, at approximately 6 a.m., Tricia Smith was the first employee to arrive for the opening shift at the Friendly’s restaurant in Glastonbury. As she entered the restaurant, the petitioner approached her from behind and ‘‘told [her] to turn off the alarm.’’ Smith testified: ‘‘He told me-he asked me where the safe was, I told him it was in the back dish room, [and] he told me to go back and open it.’’ Smith did not see a gun, but the petitioner had something underneath his jacket that looked like one. Smith led the petitioner to the safe and, after opening it, ‘‘[the petitioner] told [her] to go into the walk-in cooler. So [she] unlocked it and got in.’’ The walk-in refrigerator was ten feet away from the safe, and the petitioner ordered Smith into the refrigerator ‘‘[j]ust two [or] three minutes’’ after she first saw him. Once she was inside the refrigerator, the petitioner told her that ‘‘he would let [her] know when he was finished’’ and when it was safe to come out. Approximately two minutes after entering the refrigerator, Smith heard the petitioner say something that she could not make out. ‘‘[She] then waited a few more minutes after that’’ before she peeked out of the refrigerator to see if the petitioner had left the restaurant. Seeing that the petitioner had left, she exited the refrigerator and ran to the nearby gas station for help.

         Finally, although the petitioner did not testify at trial, his statement to the police was read into the record and became a full exhibit. In that statement, he confessed to both robberies. With respect to the Manchester robbery involving Royer, his statement provided inrelevant part: ‘‘Once we were in the back room, [Royer] opened the safe. After she opened the safe, I asked her which one- which one is the walk-in refrigerator. She pointed to one, and I asked her to step in there for a minute and I’ll come back and get you when I’m through. I then took the money out of the safe. . . . After I got the money, I left. The manager was still in the refrigerator when I left.’’ With respect to the Glastonbury robbery involving Smith, the petitioner’s statement provided in relevant part: ‘‘The only other robbery I did was the one in Glastonbury this morning, [April 14, 2001]. . . . I told [Smith] to open the safe. . . . After she opened the safe I told her to get in the refrigerator. After I got the money from the safe, I left.’’

         We now turn to the legal principles governing whether an omitted jury instruction constitutes harmless error. It is undisputed that the trial court did not provide an incidental restraint instruction in accordance with Salamon. ‘‘[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.’’ (Citation omitted; internal quotation marks omitted.) Hinds v. Commissioner of Correction, supra, 321 Conn. 77–78; see also Luurtsema v. Commissioner of Correction, supra, 299 Conn. 770; White v. Commissioner of Correction, 170 Conn.App. 415, 427–28, 154 A.3d 1054 (2017); Nogueira v. Commissioner of Correction, supra, 168 Conn.App. 812–13; see generally State v. Fields, 302 Conn. 236, 245–46, 24 A.3d 1243 (2011) (on direct appeal, jury instruction that omits essential element from charge constitutes harmless error only if reviewing court concluded, beyond reasonable doubt, that omitted element was uncontested and supported by overwhelming evidence such that jury verdict would have been same absent error); State v. Flores, 301 Conn. 77, 83, 17 A.3d 1025 (2011) (on direct appeal, test for determining whether there is constitutional error in jury instruction is whether it appears beyond reasonable doubt that error complained of did not contribute to verdict).

         ‘‘[W]e underscore that a determination of sufficient evidence to support a kidnapping conviction is not the appropriate yardstick by which to assess the likelihood of a different result [and that the burden of proving harmlessness rests with the respondent].’’ (Emphasis added.) Hinds v. Commissioner of Correction, supra, 321 Conn. 91; see id., 78. Similarly, the appropriate test is not whether a properly instructed jury likely would have found the petitioner guilty of kidnapping. Id., 85; see also State v. Flores, supra, 301 Conn. 87.

         ‘‘To answer the question of whether the absence of the Salamon standard constituted harmless error requires us to examine the factors and principles enunciated in that case. . . . [A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. . . . We iterate that 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. . . .

         ‘‘The Salamon court set forth a list of factors [f]or purposes of making [the] determination [of whether a criminal defendant’s movement or confinement of a victim was necessary or incidental to the commission of another crime; specifically] the jury should be instructed to consider the various relevant factors, including [1] the nature and duration of the victim’s movement or confinement by the defendant, [2] whether that movement or confinement occurred during the commission of the separate offense, [3] whether the restraint was inherent in the nature of the separate offense, [4] whether the restraint prevented the victim from summoning assistance, [5] whether the restraint reduced the defendant’s risk of detection and [6] whether the restraint created a significant danger or increased the victim’s risk of harm independent of that posed by the separate offense.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Banks v. Commissioner of Correction, supra, 184 Conn.App. 114–15; see also State v. Flores, supra, 301 Conn. 84–85.

         At this point, a discussion of Banks v. Commissioner of Correction, supra, 184 Conn.App. 101, facilitates our analysis. In that case, the petitioner, Mark Banks, was convicted in 1997 of four counts of kidnapping in the first degree, four counts of robbery in the first degree and two counts of criminal possession of a pistol or revolver. Id., 104. His convictions stemmed from the events at two Bedding Barn stores in Newington and Southington. Id., 105–106. On August 30, 1995, Banks, posing as a customer, entered the Newington store shortly before closing time. Id., 105. After briefly speaking to one employee, Banks pulled a silver handgun from his bag and directed the employee to open the cash register. Id. After taking money, Banks moved the employee and his coworker to a nearby bathroom. Id. Banks propped a mop handle against the door to keep the employees in the bathroom. Id. After a brief time, the employees exited the bathroom and called the police. Id.

         On the evening of September 13, 1995, Banks, along with an unknown woman, went to the Southington store where he again posed as a customer and held up a store employee and her friend at gunpoint. Id., 105–106. After taking money from the cash register and a bank bag, the petitioner ordered the two women to lock themselves in the bathroom, which ...


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