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John B. v. Commissioner of Correction

Court of Appeals of Connecticut

December 17, 2019

JOHN B.
v.
COMMISSIONER OF CORRECTION[*]

          Argued September 17, 2019

         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, Kwak, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          James E. Mortimer, assigned counsel, for the appellant (petitioner).

          Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Brian W. Preleski, state's attorney, and Tamara Grosso, assistant state's attorney, for the appellee (respondent).

          Lavine, Prescott and Harper, Js.

          OPINION

          LAVINE, J.

         The petitioner, John B., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court erred when it concluded that (1) the trial court's failure to charge the jury pursuant to Salamon[1] was harmless beyond a reasonable doubt and (2) trial counsel did not render ineffective assistance of counsel. We affirm the judgment of the habeas court.

         The following procedural history is relevant to the petitioner's claims. The petitioner is in the custody of the respondent, the Commissioner of Correction, serving consecutive sentences totaling fifty-five years that were imposed by the trial court following two jury trials. On January 28, 2005, the petitioner was sentenced to fifteen years in prison after a jury found him guilty of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and assault of a peace officer in violation of General Statutes § 53a-167c (a) (1) (assault case). The petitioner's conviction was upheld on direct appeal.

         On December 5, 2005, the petitioner was sentenced to forty years in prison after a jury found him guilty of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), attempt to commit kidnapping in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-92 (a) (2) (A), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and interfering with an officer in violation of General Statutes § 53a-167a (a). State v. John B., 102 Conn.App. 453, 455, 925 A.2d 1235, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007) (attempted kidnapping case).[2] The petitioner's conviction was upheld on direct appeal. Id.[3]

         Following the petitioner's convictions, our Supreme Court rendered a decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), which changed Connecticut law regarding kidnapping in conjunction with another crime. Thereafter, in Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011), our Supreme Court held that Salamon applied retroactively to collateral attacks on judgments rendered final before Salamon was issued. Those two cases are at the heart of the petitioner's Salamon or due process claims in this appeal.

         On September 11, 2014, the self-represented petitioner initiated the present habeas corpus action. Appointed counsel filed a second amended petition on August 21, 2017, alleging that (1) the petitioner's due process rights under the fifth, sixth, eighth and fourteenth amendments to the federal constitution and article first, § 8, of the constitution of Connecticut were violated by the trial court when it failed to charge the jury pursuant to State v. Salamon, supra, 287 Conn. 509, and (2) his trial counsel rendered ineffective assistance. The respondent denied the material allegations of the amended petition, and the matter was tried on October 11, 2017. The habeas court denied the petition for a writ of habeas corpus on March 23, 2018, and, thereafter, granted the petitioner certification to appeal.

         In its memorandum of decision, the habeas court quoted the facts reasonably found by the jury as stated in this court's opinion in the petitioner's direct appeal in the attempted kidnapping case. See State v. John B., supra, 102 Conn.App. 455-48. ‘‘[T]he [petitioner] and the female victim were neighbors in an apartment building. The [petitioner] and the victim were acquaintances; they had never spoken to each other on the telephone, but the [petitioner] had once been to the victim's apartment, visiting with her and her granddaughter. At approximately 9:30 p.m. on May 8, 2001, the [petitioner] called the victim on the telephone and invited her to his apartment to watch a movie with him. The victim declined the invitation, but the [petitioner], in a stern voice, insisted that she come to his apartment. After this initial conversation ended, the [petitioner] called the victim again, but the victim did not answer her telephone.

         ‘‘A short time later, the [petitioner] appeared at the victim's apartment, knocking on the door and windows. The [petitioner] identified himself and asked the victim to let him into her apartment. The victim became frightened. As she approached the door to her apartment, the [petitioner] burst through the door, wrapped his hands around her throat and began to choke her. A physical struggle between the [petitioner] and the victim ensued. While the victim tried to break free and to protect herself, the [petitioner] dragged her out of her apartment and into a nearby hallway. The [petitioner] told the victim to ‘go with it' and to ‘let go.' In a hushed voice, the [petitioner] also told the victim that he loved her. At one point during the struggle, the victim pretended to faint, causing the [petitioner] to loosen his grip on her neck. The victim began to flee, but the [petitioner] grabbed her by one of her legs and pulled her back to him. Eventually, the struggle moved outdoors where the victim, experiencing difficulty as a result of the [petitioner's] assault, began screaming for help. The [petitioner] caught up with her and pinned her against a wall.

         ‘‘A bystander, Myron St. Pierre, heard the victim's cries for help and observed the [petitioner] attempting to pull the victim against her will back inside the apartment building. St. Pierre approached the [petitioner] and the victim, instructing them to break up the melee. The [petitioner] told St. Pierre: ‘[S]he just got out of a mental institute. She's crazy. We can handle it . . . it's all right.' The victim told St. Pierre that the [petitioner] was lying and was trying to kill her. The victim also asked him to call the police. After the [petitioner] briefly chased the victim and St. Pierre, St. Pierre physically restrained the [petitioner] on the ground and instructed the victim to run to a nearby police station. The victim took refuge in her apartment and reported the incident to the police. St. Pierre restrained the [petitioner] until the police arrived on the scene.

         ‘‘When David Posadas, an officer with the local police department arrived at the scene, St. Pierre informed him that the [petitioner] had attacked the victim. Posadas asked the [petitioner] what had occurred, and the [petitioner] replied that he had not attacked the victim. The [petitioner] stated that the victim was suicidal and that he had tried to prevent her from harming herself. Posadas also spoke with the victim, who appeared to be upset and disheveled. The victim related the [petitioner's] actions to Posadas; her account was corroborated in part by the caller identification function on her telephone, which reflected that the [petitioner] had called the victim earlier that evening.

         ‘‘The [petitioner] was placed under arrest. A search of his person incident to his arrest yielded, among other items, a pair of handcuffs and a ‘bondage device.' The [petitioner] consented to a police search of his apartment. Although the [petitioner] was calm and cooperative with the police until and immediately following his arrest, he began mumbling to himself and rocking back and forth during the search of his apartment. During the booking process at the police department, the [petitioner] became combative with the police officers involved; he would not comply with the orders being given to him by the officers and refused to be fingerprinted. . . .

         ‘‘At approximately 3 a.m. on the morning following his arrest, the [petitioner] indicated that he wanted to discuss the events that culminated in his arrest. After waiving his right to remain silent, the [petitioner] spoke with Sandra Mattucci, an officer with the local police department. The [petitioner] stated that, on the prior evening, he had intended to help the victim by bringing her ‘into a deeper level of consciousness and . . . into a true reality.' He stated that he intended to accomplish this by using the handcuffs and [the] bondage device found on his person and by raping and torturing the victim. The [petitioner] admitted that he entered the victim's apartment and choked the victim to ‘make her unconscious so that he could bring her back upstairs to his apartment . . . [and] bring her into this true reality.' He also stated that he previously had used the handcuffs and [the] bondage device on himself and others.'' Additional facts will be included as necessary.

         Before addressing the petitioner's claims, we set forth the standard of review. ‘‘Historical facts constitute a recital of external events and the credibility of their narrators. . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of credibility of witnesses and the weight to be given to their testimony. . . . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.'' (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).

         I

         The petitioner's first claim on appeal is that the habeas court improperly denied his petition because the trial court's failure to give a jury instruction pursuant to Salamon was not harmless beyond a reasonable doubt. We disagree.

         We begin with the standard of review applicable to the petitioner's claim. In reviewing the petitioner's Salamon claim, we are mindful that mixed questions of law and fact are subject to plenary review. See Hinds v. Commissioner of Correction, 321 Conn. 56, 65, 135 A.3d 596 (2016). ‘‘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).

         The habeas court determined that the petitioner had alleged that (1) the trial court did not properly instruct the jury with respect to the charge of attempted kidnapping, (2) he was convicted for conduct that the legislature did not intend to criminalize with regard to attempted kidnapping, (3) plea negotiations were unreasonably curtailed in light of the change in the interpretation of the kidnapping statute, (4) he is being unreasonably and cruelly punished for conduct that is, in light of Salamon, no longer a crime in Connecticut, and (5) the due process violations prejudiced his case and limited his ability to obtain a lesser sentence or a conviction of a lesser offense.

         The habeas court's memorandum of decision discloses that it was cognizant of the controlling law. ‘‘[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. 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.'' (Footnote omitted.) State v. Salamon, supra, 287 Conn. 547. ‘‘[W]hen 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.'' (Emphasis in original.) Id., 547-48. ‘‘Connecticut courts ultimately assess the importance of a Salamon instruction by scrutinizing how a reasonable jury would perceive the [petitioner's] restraint of the victim, particularly with respect to when, where, and how the [petitioner] confined or moved the victim.'' Wilcox v. Commissioner of Correction, 162 Conn.App. 730, 745, 129 A.3d 796 (2016).

         Our Supreme Court summarized the circumstances preceding and following its decision in Salamon in Hinds v. Commissioner of Correction, supra, 321 Conn. 66. ‘‘Under our Penal Code, the hallmark of a kidnapping is an abduction, a term that is defined by incorporating and building upon the definition of restraint. . . . In 1977, this court squarely rejected a claim that, when the abduction and restraint of a victim are merely incidental to some other offense, such as sexual assault, that conduct cannot form the basis of a guilty verdict on a charge of kidnapping. . . . 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.'' (Citations omitted; footnote omitted.) Id., 66-67. The court left ‘‘open the possibility that there could be a factual situation in which the asportation or restraint was so miniscule that a conviction of kidnapping would constitute an absurd and unconscionable result that would render the statute unconstitutionally vague as applied.'' Id., 67-68.

         In Salamon, the court reexamined the broad, literal interpretation of the statute. Id., 68. ‘‘In concluding that it must overrule its long-standing interpretation, the court went beyond the language of the kidnapping statute to consider sources that it previously had overlooked.'' Id. The court explained that ‘‘[o]ur legislature, in replacing a single, broadly worded kidnapping provision with a graduated 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 kidnapping in conjunction with another crime, a [petitioner] 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., 69.

         Thereafter, Peter Luurtsema filed a petition for a writ of habeas corpus seeking to have the Salamon holding applied retroactively to his case.[4] See Luurtsema v.Commissioner of Correction, supra, 299 Conn. 764. In Luurtsema's habeas appeal, our Supreme Court ‘‘concluded as a matter of state common law that policy considerations weighed in favor of retroactive application of Salamon to collateral attacks on judgments ...


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