Banks v. Comm'r of Corr.

184 Conn.App. 101

194 A.3d 780

Mark BANKS

v.COMMISSIONER OF CORRECTION

AC 39830

Appellate Court of Connecticut.

Argued October 23, 2017

Officially released August 7, 2018

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.

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., at 428–29, 154 A.3d 1054. 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. at 509, 949 A.2d 1092, 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 incarceration³ 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., at 116–17, 755 A.2d 951.

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. at 509, 949 A.2d 1092. 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 Salamon 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. at 509, 949 A.2d 1092, 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. at 65, 136 A.3d 596 ; 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. at 542–550, 949 A.2d 1092 ; 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, at 437, 953 A.2d 45, 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...