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Banks v. Commissioner of Correction

Court of Appeals of Connecticut

August 7, 2018

MARK BANKS
v.
COMMISSIONER OF CORRECTION

          Argued October 23, 2017

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Sferrazza, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Reversed; judgment directed; further proceedings.

          Pamela S. Nagy, assistant public defender, for the appellant (petitioner).

          Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Keller and Prescott, Js.

          OPINION

          DIPENTIMA, C. J.

         The dispositive issue in this appeal is whether the absence of a jury instruction required by our Supreme Court's seminal decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and subject to a retroactive application in a subsequent collateral proceeding; see Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011); constituted harmless error. See Hinds v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016). This court recently articulated the issue as follows: ‘‘[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.'' Wilcox v. Commissioner of Correction, 162 Conn.App. 730, 736, 129 A.3d 796 (2016). Further, a reviewing court must conclude, beyond a reasonable doubt, that the absence of the Salamon instruction did not contribute to the kidnapping conviction. White v. Commissioner of Correction, 170 Conn.App. 415, 428, 154 A.3d 1054 (2017).

         In this case, the respondent, the Commissioner of Correction, bears the arduous burden of demonstrating that the omission of an instruction on incidental restraint did not contribute to the verdict. See, e.g., id., 428-29. Accordingly, our task is not to determine whether sufficient evidence existed in the record to support a conviction of kidnapping or ‘‘whether a jury likely would return a guilty verdict if properly instructed; rather, the test is whether there is a reasonable possibility that a properly instructed jury would reach a different result.'' (Emphasis added.) State v. Flores, 301 Conn. 77, 87, 17 A.3d 1025 (2011). We conclude that, under the facts and circumstances of this case, as well as the analysis established in our appellate precedent, the absence of the Salamon instruction was not harmless beyond a reasonable doubt. Accordingly, we reverse the judgment of the habeas court denying the petitioner's petition for a writ of habeas corpus, and remand the case with direction to vacate his kidnapping convictions and to order a new trial with respect to those charges.

         The petitioner, Mark Banks, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, he claims that the decision of the habeas court violated his due process right to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution. Specifically, he contends that the court improperly determined that the lack of a jury instruction in his underlying criminal case concerning the intent and conduct necessary to find the petitioner guilty of kidnapping in accordance with State v. Salamon, supra, 287 Conn. 509, was harmless beyond a reasonable doubt. We agree with the petitioner.

         The following facts and procedural history are relevant to this appeal. In 1997, following a jury trial, the petitioner was convicted of four counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), [1] four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and two counts of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c.[2] The trial court sentenced the petitioner to a total effective sentence of twenty-five years incarceration[3] consecutive to any sentence the petitioner was presently serving.[4]

         In 2000, following a direct appeal, this court affirmed the judgments of conviction, setting forth the following facts that a reasonable jury could have found concerning the petitioner's crimes: ‘‘Michael Kozlowski and Howard Silk were working [on the evening of August 30, 1995] at the Bedding Barn store in Newington. The [petitioner], posing as a customer, entered the store shortly before closing at 9 p.m.; there were no other customers in the store. Kozlowski approached the [petitioner] and began to show him some king-size beds. The [petitioner] pulled a large silver gun from a bag he was holding. The gun had a round cylinder. The [petitioner], while pointing the gun at Silk, ordered Kozlowski to open the cash register. After taking money from the register, the [petitioner] requested the store's bank bag or safe. The [petitioner] then asked Silk and Kozlowski for the money from their wallets. He then took money from Silk, but not from Kozlowski. Silk and Kozlowski were then locked in the bathroom with something propped against the door and told not to leave or they would be shot. A short time later, when Silk and Kozlowski heard the doorbell in the store ring, they assumed the robber had left, pushed open the bathroom door and called the police.'' State v. Banks, 59 Conn.App. 112, 116, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000).

         ‘‘Kelly Wright was working [on the evening of September 13, 1995] at the Bedding Barn store in Southington. Shortly before 9 p.m., while Wright's roommate, Idelle Feltman, was waiting to take her home, the [petitioner] and an unknown woman, posing as customers, entered the store. The [petitioner] pulled a gun from a bag he was carrying, held it to Feltman's temple, and asked her to open the cash register and to give him money. The [petitioner] then requested the bank bag, which Feltman gave him. The [petitioner] then told Wright and Feltman to get into the bathroom and lock themselves in. Shortly thereafter, Feltman and Wright heard the door buzzer and surmised that the [petitioner] had left the store. They exited the bathroom and called the police.'' Id., 116-17.

         On January 13, 2014, the petitioner filed the petition for a writ of habeas corpus underlying the present appeal, which he amended on August 12, 2016, alleging a violation of his due process right to a fair trial. In his amended petition, the petitioner challenged his two kidnapping convictions on the ground that the instructions given to the jury were not in accordance with State v. Salamon, supra, 287 Conn. 509. On October 14, 2016, the respondent filed his return to the amended petition. On October 17, 2016, both sides stipulated to a trial on the papers.[5]

         On October 20, 2016, the court issued a memorandum of decision denying the petition. In its memorandum of decision, the court set forth a detailed version of events based on the transcript from the petitioner's criminal trial.[6] The habeas court concluded that the respondent demonstrated that the absence of a Sala-mon instruction at the petitioner's criminal trial constituted harmless error because the ‘‘movements and confinements [of the employees] were perpetrated after the crimes of robbery were committed and cannot conceivably be regarded as coincidental with or necessary to complete the substantive crimes of robbery. Depriving someone of their freedom of movement by imprisoning them in a bathroom subsequent to acquiring their money, although convenient for the robber, is not inherent in the crime of robbery. It is crystal clear that the petitioner's intent and purpose for locking up his robbery victims was to postpone their summoning of assistance and reporting of the crime to police, thus facilitating the petitioner's escape from the scene and delaying detection of his crime, identity, and/or whereabouts. Also, the petitioner extended the period of infliction of duress and distress for the victims by restraining them beyond the time of fulfillment of his quest, i.e., seizure of cash.'' (Emphasis in original.) The habeas court subsequently granted the petitioner's certification to appeal on October 27, 2016. This appeal followed.

         The petitioner claims that the habeas court improperly determined that the lack of a jury instruction in his underlying criminal case concerning the intent and conduct necessary to find the petitioner guilty of kidnapping in accordance with State v. Salamon, supra, 287 Conn. 509, was harmless beyond a reasonable doubt. We agree.

         The determination of whether the trial court's failure to provide a Salamon instruction constitutes harmless error is a question of law subject to plenary review. 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, 321 Conn. 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).

         A review of the evolution of our kidnapping jurisprudence will facilitate the analysis in this case. Following the petitioner's criminal trial and direct appeal, our Supreme Court issued several significant decisions with respect to the crime of kidnapping. See State v. Salamon, supra, 287 Conn. 542-550; see also State v. DeJesus, 288 Conn. 418, 430-34, 438, 953 A.2d 45 (2008); State v. Sanseverino, 287 Conn. 608, 620-26, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, supra, 437, and superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009).

         ‘‘In Salamon, we reconsidered our long-standing interpretation of our kidnapping statutes, General Statutes §§ 53a-91 through 53a-94a. . . . The defendant had assaulted the victim at a train station late at night, and ultimately was charged with kidnapping in the second degree in violation of § 53a-94, unlawful restraint in the first degree, and risk of injury to a child. . . . At trial, the defendant requested a jury instruction that, if the jury found that the restraint had been incidental to the assault, then the jury must acquit the defendant of the charge of kidnapping. . . . The trial court declined to give that instruction. . . .

         ‘‘[W]e [thus] reexamined our long-standing interpretation of the kidnapping statutes to encompass even restraints that merely were incidental to and necessary for the commission of another substantive offense, such as robbery or sexual assault. . . . We ultimately concluded that [o]ur legislature . . . 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. . . .

         ‘‘We explained in Salamon that 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 had independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim's movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant's risk of detection and 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 added; internal quotation marks omitted.) State v. Hampton, 293 Conn. 435, 459-60, 988 A.2d 167 (2009); see also White v. Commissioner of Correction, supra, 170 Conn.App. 423-24; Wilcox v. Commissioner of Correction, supra, 162 Conn.App. 742.

         Next, in Luurtsema v. Commissioner of Correction, supra, 299 Conn. 742, our Supreme Court considered whether its decisions in State v. Salamon, supra, 287 Conn. 509, State v. Sanseverino, supra, 287 Conn. 608, and State v. DeJesus, supra, 288 Conn. 418, applied retroactively to collateral attacks on final judgments. It ultimately concluded that ‘‘when an appellate court provides a new interpretation of a substantive criminal statute, an inmate convicted under a prior, more expansive reading of the statute presumptively will be entitled to the benefit of the new interpretation on collateral attack. We decline, however, the petitioner's invitation to adopt a per se rule in favor of full retroactivity.'' Id., 760; see also Farmer v. Commissioner of Correction, supra, 165 Conn.App. 459-460; Eric M. v. Commissioner of Correction, 153 Conn.App. 837, 844-45, 108 A.3d 1128 (2014), cert. denied, 315 Conn. 915, 106 A.3d 308 (2015); Epps v. Commissioner of Correction, 153 Conn.App. 729, 735, 104 A.3d 760 (2014) (‘‘[o]ur Supreme Court later ruled that its holding in Salamon is retroactive''), appeal dismissed, 327 Conn. 482, 175 A.3d 558 (2018) (certification improvidently granted).

         Finally, in Hinds v. Commissioner of Correction, supra, 321 Conn. 61, our Supreme Court held that the procedural default rule does not apply to claims that the trial court failed to instruct the jury in accordance with State v. Salamon, supra, 287 Conn. 509, in cases rendered final before that decision was issued. The court also addressed the proper standard for determining when the failure to provide the jury with a Salamon instruction requires a new trial. Id., 76. It reasoned that the failure to instruct the jury in accordance with Salamon is considered to be an omission of an essential element of kidnapping, and thus, rises to the level of constitutional error. Id., 78.

         ‘‘[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 . . . .'' (Internal quotation marks omitted.) Id., 77-78; see also Luurtsema v. Commissioner of Correction, supra, 299 Conn. 770; White v. Commissioner of Correction, supra, 170 Conn.App. 427-28; 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, supra, 301 Conn. 83 (on direct appeal, test for determining whether constitutional error in jury instruction is harmless is whether it appears beyond reasonable doubt that error complained of did not contribute to verdict).[7] We emphasize that to prevail on his habeas claim that the absence of a Salamon instruction did not constitute harmless error, the petitioner is not required to establish that there was insufficient evidence to convict him or that a properly instructed jury likely would find him guilty. Hinds v. Commissioner of Correction, supra, 321 Conn. 85; State v. Flores, supra, 301 Conn. 87.

         We now turn to the petitioner's claim, and the dispositive issue, [8] that is, whether the respondent failed to establish that the absence of a Salamon instruction constituted harmless error. Specifically, the petitioner argues that, on the basis of the evidence presented at his criminal trial, ‘‘it would have been reasonable for jurors to conclude that the brief restraint that occurred during the commission of the robbery was incidental to the robbery, and therefore, was not a kidnapping. Because the petitioner was deprived of the opportunity of having the jurors consider this issue, which was susceptible to more than one interpretation, the respondent did not prove the error was harmless beyond a reasonable doubt.''

         The respondent counters that the habeas court properly concluded that the absence of the Salamon instruction constituted harmless error because ‘‘[t]he petitioner had completed the robberies without need for, and prior to, moving and restraining the [employees], and he moved and restrained them simply to facilitate his escape without detection.'' We agree with the petitioner.

         ‘‘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.'' Nogueira v. Commissioner of Correction, supra, 168 Conn.App. 840. ‘‘[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.'' (Emphasis added.) State v. Salamon, supra, 287 Conn. 547-48. 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.'' Id., 542.

         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.'' Id., 548.

         With respect to the first Salamon factor, the nature and duration of the victim's movement or confinement, the petitioner argues: ‘‘The movement to the bathroom in both cases was brief in distance and the duration of the movement and confinement lasted only a few minutes. In addition, the restraint occurred extremely close in time to the robbery and it is conceivable that jurors would view the fact that [the] petitioner moved the employees into the bathroom so that he could escape as being part and parcel of the robbery.'' The respondent counters that ‘‘[o]n the facts of this case, the nature and duration of the movements and confinements reinforce their independent significance.'' We agree with the petitioner that this factor weighs in his favor.

         Analysis of this factor is guided by our decision in White v. Commissioner of Correction, supra, 170 Conn.App. 430-432, where we observed: ‘‘[I]n Hinds v. Commissioner of Correction, supra, 321 Conn. 92-93, our Supreme Court attempted to categorize various Salamon incidental restraint cases with differing degrees of confinement or movement: Although no minimum period of restraint or degree of movement is necessary for the crime of kidnapping, an important facet of cases where the trial court has failed to give a Salamon instruction and that impropriety on appellate review has been deemed harmless error is that longer periods of restraint or greater degrees of movement demarcate separate offenses. See State v. Hampton, supra, 293 Conn. 463-64 (defendant confined victim in a car and drove her around for approximately three hours before committing sexual assault and attempted murder); State v. Jordan, [129 Conn.App. 215, 222-23, 19 A.3d 241] (evidence showed the defendant restrained the victims to a greater degree than necessary to commit the assaults even though assaultive behavior spanned entire forty-five minute duration of victims' confinement) [cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011)]; State v. Strong, [122 Conn.App. 131, 143, 999 A.2d 765] (defendant's prolonged restraint of victim while driving for more than one hour from one town to another not merely incidental to threats made prior to the restraint) [cert. denied, 298 Conn. 907, 3 A.3d 73 (2010)]; and State v. Nelson, [118 Conn.App. 831');">118 Conn.App. 831, 860-62, 986 A.2d 311] (harmless error when defendant completed assault and then for several hours drove victim to several locations) [cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010)]. Thus, as these cases demonstrate, multiple offenses are more readily distinguishable-and, consequently, more likely to render the absence of a Salamon instruction harmless-when the offenses are separated by greater time spans, or by more movement or restriction of movement.

         ‘‘Conversely, multiple offenses occurring in a much shorter or more compressed time span make the same determination more difficult and, therefore, more likely to necessitate submission to a jury for it to make its factual determinations regarding whether the restraint is merely incidental to another, separate crime. In those scenarios, [in which] kidnapping and multiple offenses occur closer in time to one another, it becomes more difficult to distinguish the confinement or restraint associated with the kidnapping from another substantive crime. The failure to give a proper Salamon instruction in those scenarios is more likely to result in harmful error precisely because of the difficulty in determining whether each crime has independent criminal significance. See State v. Thompson, [118 Conn.App. 140');">118 Conn.App. 140, 162, 983 A.2d 20 (2009)] (within fifteen minutes defendant entered victim's car, pushed her behind a building and sexually assaulted her) [cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010)]; State v. Flores, [supra, 301 Conn. 89] (defendant's robbery of victim in her bedroom lasted between five and twenty minutes); State v. Gary, [120 Conn.App. 592');">120 Conn.App. 592, 611, 992 A.2d 1178] (defendant convicted of multiple sexual assaults and an attempted sexual assault that were in close temporal proximity to the defendant's restraint of the victim; thus court determined evidence reasonably supports a finding that the restraint merely was incidental to the commission of other crimes, namely, sexual assaults and attempted sexual assault; lack of Salamon instruction harmful error) [cert. denied, 297 Conn. 910, 995 A.2d 637 (2010)].'' (Emphasis added; internal quotation marks omitted.); see generally Wilcox v. Commissioner of Correction, supra, 162 Conn.App. 743 (review of appellate decisions reveals that absence of Salamon instruction is generally more prejudicial where kidnapping related actions were closely aligned in time, place and manner to other criminal acts and these factors are particularly crucial).

         In the present case, at the criminal trial, the state presented testimony that the length of the entire store in Newington was ‘‘maybe thirty yards.'' In response to a question regarding the distance from the counter to the bathroom, Kozlowski stated: ‘‘[The bathroom is] actually right behind [the counter] but there is a wall. I mean, you'd have to walk maybe twelve, twenty, about twenty-four feet, basically a square.'' Silk testified that the two employees and the petitioner remained by the counter for approximately four to five minutes.

         After moving the two employees to the bathroom, the petitioner then placed a mop handle behind the door. A few minutes later, the employees heard a bell that sounded when someone entered or exited the store. The employees then pushed open the door to the bathroom and called the police. Silk specifically indicated that the two employees remained in the bathroom for a period of time ‘‘[u]nder two minutes. Maybe even under a minute.''

         With respect to the criminal activity at the Southington store, Wright testified that the entire proceedings, from the time the petitioner entered the store until he left, lasted five to ten minutes. Feltman indicated that her encounter with the petitioner in front of the cash register lasted four to five minutes. Feltman also noted that a narrow hallway, with three doors, connected the main showroom to the bathroom area. Wright and Feltman testified that they remained in the bathroom for a few minutes before exiting and calling the police.

         In each instance, the petitioner's criminal conduct occurred at a single location. See White v. Commissioner of Correction, supra, 170 Conn.App. 432. Furthermore, the robberies and purported kidnappings were not separated by a significant time period or distance. Id., 432-33. Under these facts, it is difficult to determine whether each crime had independent criminal significance. Id., 431. Given the ‘‘close temporal proximity to the alleged kidnapping and [the fact that] any confinement/movement was limited in nature and distance, '' this factor supports the petitioner's contention that the lack of a Salamon instruction was not harmless error. Id., 432-33; see also Hinds v. Commissioner of Correction, supra, 321 Conn. 79-80 (petitioner's actions were continuous, uninterrupted course of conduct and lasted a few minutes where he pursued, grabbed, threatened and sexually assaulted victim); State v. Flores, supra, 301 Conn. 87 (Supreme Court noted that where victim neither was bound nor moved physically, but was restrained on bed for no more than five minutes, failure to provide jury with Salamon instruction was not harmless); Epps v. Commissioner of Correction, supra, 153 Conn.App. 741 (evidence neither overwhelming nor undisputed regarding restriction of victim's movements during assault); cf. State v. Hampton, supra, 293 Conn. 464 (passage of substantial amount of time clearly showed defendant's intent to prevent victim's liberation for longer period of time or to greater degree than necessary to commit subsequent crimes); Nogueira v. Commissioner of Correction, supra, 168 Conn.App. 841 (absence of Salamon instruction harmless where, inter alia, criminal conduct lasted for nearly two hours and was interrupted by actions of third party and victim's escape efforts); Eric M. v. Commissioner of Correction, supra, 153 Conn.App. 846-47 (failure to give Salamon instruction harmless where victim had been sexually assaulted for few minutes and restrained for five hours); State v. Nelson, supra, 118 Conn.App. 860-61 (court noted significance of substantial length of restraint and that five hour period of restraint constituted overwhelming evidence of intent to prevent liberation for longer period of time than necessary to commit assault).

         Next, we consider the second Salamon factor, that is, whether the confinement or movement of the three store employees and Feltman occurred during the commission of the robberies. See, e.g., White v. Commissioner of Correction, supra, 170 Conn.App. 433. The habeas court determined that ‘‘[t]hese movements and confinements were perpetrated after the crimes of robbery were committed and cannot conceivably be regarded as coincidental with or necessary to complete the substantive crimes of robbery. Depriving someone of their freedom of movement by imprisoning them in a bathroom subsequent to acquiring their money, although convenient for the robber, is not inherent in the crime of robbery.'' (Emphasis in original.) The respondent agrees with the habeas court's statement that the crime of robbery had been completed prior to the movement and confinement of the three store employees and Feltman, which supports the contention that the absence of the Salamon instruction was harmless. The ...


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