Wilcox v. Commissioner of Correction ( 2016 )

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HOWARD WILCOX v. COMMISSIONER
OF CORRECTION
(AC 37276)
Sheldon, Keller and Harper, Js.
Argued September 16, 2015—officially released February 2, 2016
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Peter A. McShane, state’s attorney,
and Jo Anne Sulik, supervisory assistant state’s attor-
ney, for the appellant (respondent).
Jennifer B. Smith, assigned counsel, for the appel-
lee (petitioner).
Opinion
KELLER, J. The respondent, the Commissioner of
Correction, appeals from the judgment of the habeas
court granting the amended petition for a writ of habeas
corpus filed by the petitioner, Howard Wilcox. On
appeal, the respondent claims that the habeas court
improperly determined that the petitioner (1) estab-
lished good cause for failing to raise an instructional
error claim at trial or on direct appeal, and (2) estab-
lished that he suffered actual prejudice from the trial
court’s jury instructions. We reverse the judgment of
the habeas court and remand the case to that court
with direction to dismiss the petition.
The following facts and procedural history are rele-
vant to this appeal. In 1997, the petitioner was convicted
following a jury trial of one count of kidnapping in the
first degree in violation of General Statutes § 53a-92 (a)
(2) (A), one count of sexual assault in the first degree
in violation of General Statutes § 53a-70 (a) (1), one
count of attempt to commit sexual assault in the first
degree in violation of General Statutes §§ 53a-49 (a) (2)
and 53a-70 (a) (1), one count of assault in the third
degree in violation of General Statutes § 53a-61 (a) (1),
and one count of falsely reporting a motor vehicle theft
in violation of General Statutes § 14-198. The trial court
sentenced the petitioner to a total effective sentence
of forty years incarceration, execution suspended after
thirty-four years, followed by ten years of probation.
The defendant appealed his conviction to this court
and our Supreme Court transferred the appeal to itself
pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
In 2000, our Supreme Court affirmed the judgment
of conviction, at which time it set forth the following
facts underlying the crimes: ‘‘During the evening of Sep-
tember 16, 1996, the victim1 walked the short distance
from her home in East Haddam to J.R.’s Cafe [J.R.’s]
in Moodus. The [petitioner], with whom the victim was
not acquainted, already was at the bar when she arrived.
The victim remained at J.R.’s for approximately one
and one-half to two hours during which time she had
several drinks, danced, and conversed with acquain-
tances. The victim also asked the [petitioner] to dance,
tugging his arm to encourage him to join her on the
dance floor. After dancing with the victim, the [peti-
tioner] bought the victim a drink and they conversed
for a few minutes thereafter.
‘‘At approximately 12:30 a.m. on September 17, 1996,
the victim left the bar and started walking home. The
[petitioner] exited the bar immediately after the victim.
As the victim walked down one of the driveways leading
away from J.R.’s, the [petitioner] drove up next to her
and offered to drive her home. The victim accepted his
offer and voluntarily entered the [petitioner’s] vehicle.
The victim gave the [petitioner] directions to her home,
but he failed to turn onto her road as instructed. The
victim attempted to exit the moving car by opening the
door, but the [petitioner] grabbed her by the arm and
pulled her back into the vehicle.
‘‘The [petitioner] then drove the victim to a remote
area of Cockaponset State Forest, where he pulled her
out of the car onto the wet ground and pulled her
shorts and underpants down around her ankles. The
[petitioner] squeezed his hands around the victim’s
neck, choking her, and then performed oral sex on
her. The [petitioner] also touched the victim’s breasts,
vagina and buttocks with his hands, mouth and penis.
During this period the [petitioner] told the victim that
she ‘deserved it.’ While the [petitioner] again attempted
to perform oral sex on her, the victim managed to kick
him away and flee through the woods, pulling up her
shorts and underpants as she ran. As the victim ran
away, she lost one of her shoes, a sock and her driver’s
license, which she had kept in her sock. The victim hid
for a period of time beneath a tree.
‘‘Eventually, the victim walked to a house adjacent
to the woods where she knocked on the door and asked
for help. The victim, who had mud on her clothes and
body, and marks around her neck, appeared to have
been involved in a struggle. Georgia Marica, one of
the occupants of the house, testified that the victim
appeared to be terrified. Inside the house, the victim
telephoned her father and told him that she had just
been raped. Marica notified the police, who arrived
shortly thereafter.
‘‘In response to the victim’s report of a sexual assault,
the police conducted a search of the area for any sus-
pects or vehicles. During the early morning of Septem-
ber 17, 1996, the police located the [petitioner’s] vehicle
approximately 100 feet off a road leading into Cocka-
ponset State Forest. The vehicle’s windows were rolled
down and the interior was wet due to the rain. A canine
search of the vicinity around the vehicle uncovered
the victim’s shoe, sock and driver’s license and the
[petitioner’s] set of keys.
‘‘At approximately 6 a.m. on September 17, 1996, the
[petitioner’s] girlfriend, Toni Bartlotta, reported the
[petitioner’s] vehicle as stolen to the state police. Offi-
cers went to the [petitioner’s] apartment in Deep River
in response to the stolen vehicle report and, upon arriv-
ing at the apartment, observed Bartlotta cleaning bro-
ken glass panes from the front door. The [petitioner]
provided the officers with oral and written statements
alleging, inter alia, that he had parked his vehicle out-
side the Old Lyme Tavern in East Lyme the previous
evening and later went home with a friend. The [peti-
tioner] further claimed that, when he returned to the Old
Lyme Tavern the next morning to retrieve his vehicle, it
was missing.
‘‘Later the same day, a detective for the state police
went to the [petitioner’s] home and requested that the
[petitioner] go down to the state police barracks in
order to identify his vehicle and further discuss the
previous night’s events. At the barracks, the [petitioner]
told police that in his previous statement he had lied
about his vehicle being stolen because he had been out
with another woman the previous evening and did not
want his girlfriend to find out.
‘‘The [petitioner] then provided the police with a sec-
ond version of the previous evening’s events, claiming
that he had met the victim at J.R.’s, engaged in conversa-
tion with her and offered her a ride home when he saw
her walking outside the bar. The [petitioner] further
stated that they drove to Cockaponset State Forest,
parked the vehicle and began kissing and caressing.
The [petitioner] then removed the victim’s shirt and
shorts and performed consensual oral sex on her in the
front seat of the vehicle. The [petitioner] claimed that
they then decided to have sexual intercourse and the
victim laid down on the wet ground next to the car.
The [petitioner] further told police that when he was
unable to maintain an erection, the victim became angry
and got dressed. The [petitioner] claimed that he had
then realized that the victim had taken his car keys and,
as the victim started to walk away from the car, he
reached out, attempting to recover his keys from her.
The [petitioner] alleged that as he reached out, he
tripped over a rock and accidentally grabbed the vic-
tim’s neck. The victim then ran away, and the [peti-
tioner], unable to find his keys, walked home, breaking
the glass in his front door in order to gain entry.
‘‘The following day, the [petitioner] contacted the
state police and again revised portions of his earlier
statement. The [petitioner] provided a third version of
the events, claiming that when he left J.R.’s he found
the victim passed out in the front seat of his car. The
[petitioner] woke up the victim and she agreed to go
on a ride with him. The [petitioner] did not alter his
previous statements concerning the rest of the evening’s
events. The [petitioner] was arrested later that day.’’
(Footnotes altered.) State v. Wilcox, 254 Conn. 441,
444–48, 758 A.2d 824 (2000).
Following the petitioner’s criminal trial and his direct
appeal, our Supreme Court issued two watershed deci-
sions pertaining to kidnapping crimes, State v. Sala-
mon, 287 Conn. 509, 949 A.2d 1092 (2008), and
Luurtsema v. Commissioner of Correction, 299 Conn.
740, 12 A.3d 817 (2011). Pursuant 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. See State v. Salamon,
supra, 546–50; see also Luurtsema v. Commissioner
of Correction, supra, 773 (‘‘We turn . . . to the . . .
question, whether this court’s interpretation of [the kid-
napping in the first degree statute] in Salamon should
apply retroactively in the present case. Because the
rationales underlying the general presumption in favor
of full retroactivity apply here, we conclude that it
should.’’).
On July 11, 2011, the petitioner filed a petition for a
writ of habeas corpus, which he amended on February
4, 2014. In his amended petition, the petitioner chal-
lenged his kidnapping conviction on the ground that
the instructions given to the jury during his criminal
trial were not in accordance with State v. Salamon,
supra, 287 Conn. 550.2 On February 24, 2014, the respon-
dent filed a return to the amended petition, alleging the
special defense of procedural default. The petitioner
filed a reply on February 26, 2014, in which he claimed
that he could establish both good cause for his default
and actual prejudice from the lack of a Salamon instruc-
tion at his criminal trial, which excused the default.
With respect to cause for the procedural default, the
petitioner specifically claimed that he had established
cause because it would have been futile to raise a Sala-
mon claim at trial or on direct appeal, given that at the
times of those proceedings, our Supreme Court had
yet to release its decision in Salamon. Further, the
petitioner claimed that he suffered actual prejudice
from the lack of a Salamon instruction at his criminal
trial because he would not have been convicted of kid-
napping had the jury received such an instruction. The
petitioner’s habeas trial was held by the court, Oliver,
J., on June 2, 2014.
On September 17, 2014, the habeas court issued its
memorandum of decision, wherein it granted the peti-
tioner’s habeas petition. In the memorandum of deci-
sion, the habeas court concluded that the petitioner had
demonstrated cause for his procedural default because
‘‘there was no reasonable basis for [the petitioner’s]
trial counsel to request a Salamon instruction at trial
in light of the then prevailing interpretation of the kid-
napping statute when the petitioner was convicted in
1997.’’ The habeas court also concluded that the peti-
tioner had demonstrated actual prejudice resulting from
the absence of a Salamon instruction during his crimi-
nal trial. Relying on Hinds v. Commissioner of Correc-
tion, 151 Conn. App. 837, 859, 97 A.3d 986, cert. granted,
314 Conn. 928, 101 A.3d 273 (2014), the habeas court
stated that the record revealed that ‘‘the state did not
present evidence that the petitioner’s restraint and
abduction of the victim was sufficiently disconnected
from his sexual assault of [her] so as to render the
absence of a Salamon instruction harmless.’’ (Internal
quotation marks omitted.) The habeas court vacated
the petitioner’s kidnapping conviction and sentence,
and ordered the case to be returned to the trial court
for a new trial that would include a Salamon instruction
to the jury. After the habeas court issued its decision,
the respondent filed a petition for certification to appeal
to this court, which the habeas court granted on Sep-
tember 29, 2014. This appeal followed.
On appeal, the respondent raises two central claims
in support of his argument for reversal of the habeas
court’s judgment granting the petitioner’s habeas peti-
tion. In his first claim, the respondent argues that the
habeas court committed reversible error by concluding
that the petitioner had established sufficient cause for
his failure to raise a Salamon claim at trial or on direct
appeal.3 In his second claim, the respondent argues
that the habeas court committed reversible error by
concluding that the petitioner had established actual
prejudice on the basis of the trial court’s failure to
provide the jury with a Salamon instruction at his crimi-
nal trial. Specifically, the respondent claims that the
habeas court erred in its actual prejudice determination
because (1) its conclusion was based on clearly errone-
ous factual findings, (2) its analysis was the product of
an incorrect harmless error standard, and (3) under
any applicable standard, the petitioner could not prove
actual prejudice. In opposition to the respondent’s
claims, the petitioner argues that (1) the habeas court
did not err in its determination that the petitioner had
established good cause for his failure to raise a Salamon
claim at trial or on direct appeal,4 and (2) the habeas
court did not err in its determination that the petitioner
had established actual prejudice from the absence of
a Salamon instruction at trial.5 We agree with the
respondent that the habeas court erred in its determina-
tion that the petitioner suffered actual prejudice due
to the absence of a Salamon instruction at his criminal
trial, and we therefore reverse the habeas court’s judg-
ment solely on that ground.6
We begin our analysis by setting forth the appropriate
standard of review on appeal. ‘‘Our review of a determi-
nation of the application of procedural default involves
a question of law over which our review is plenary.’’
Epps v. Commissioner of Correction, 153 Conn. App.
729, 736, 104 A.3d 760 (2014).
In determining whether a habeas petitioner’s claims
of constitutional error are excused from procedural
default, Connecticut courts apply the ‘‘cause and preju-
dice’’ standard of reviewability articulated by the United
States Supreme Court in Wainwright v. Sykes, 433 U.S.
72, 87, 97 S. Ct. 2497, 53 L. Ed. 594 (1977). See, e.g.,
Crawford v. Commissioner of Correction, 294 Conn.
165, 179–89, 982 A.2d 620 (2009); Council v. Commis-
sioner of Correction, 286 Conn. 477, 489, 944 A.2d 340
(2008); Johnson v. Commissioner of Correction, 285
Conn. 556, 567–68, 941 A.2d 248 (2008); Correia v. Row-
land, 263 Conn. 453, 462, 820 A.2d 1009 (2003); Jackson
v. Commissioner of Correction, 227 Conn. 124, 135–36,
629 A.2d 413 (1993); Johnson v. Commissioner of Cor-
rection, 218 Conn. 403, 408–409, 589 A.2d 1214 (1991).
‘‘The cause and prejudice standard is designed to pre-
vent full review of issues in habeas corpus proceedings
that counsel did not raise at trial or on appeal for rea-
sons of tactics, [inadvertence] or ignorance . . . .’’
(Internal quotation marks omitted.) Crawford v. Com-
missioner of Correction, supra, 191. In order to satisfy
this standard, ‘‘the [habeas] petitioner must demon-
strate both good cause for failing to raise a claim at
trial or on direct appeal and actual prejudice from the
underlying impropriety.’’ (Emphasis added.) Id., 181;
see also Coleman v. Thompson, 501 U.S. 722, 750, 111
S. Ct. 2546, 115 L. Ed. 2d 640 (1991). ‘‘[T]he existence
of cause for a procedural default must ordinarily turn on
whether the [petitioner] can show that some objective
factor external to the defense impeded counsel’s efforts
to comply with the [s]tate’s procedural rule.’’ (Internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, supra, 568.
With respect to the actual prejudice prong, ‘‘[t]he
habeas petitioner must show not merely that the errors
at . . . trial created the possibility of prejudice, but
that they worked to his actual and substantial disadvan-
tage, infecting his entire trial with error of constitutional
dimensions. . . . Such a showing of pervasive actual
prejudice can hardly be thought to constitute anything
other than a showing that the prisoner was denied fun-
damental fairness at trial.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) Murray
v. Carrier, 477 U.S. 478, 494, 106 S. Ct. 2639, 91 L. Ed.
2d 397 (1986). In Valeriano v. Bronson, 209 Conn. 75,
83–84, 546 A.2d 1380 (1988), our Supreme Court noted
that a habeas petitioner’s showing of ineffective assis-
tance of counsel demonstrates such actual prejudice.
The actual prejudice burden is more difficult for a
habeas petitioner to meet, however, where his claims
do not allege ineffective assistance of counsel. See M.
Marcus, ‘‘Federal Habeas Corpus After State Court
Default: A Definition of Cause and Prejudice,’’ 53 Ford-
ham L. Rev. 663, 731 n.418 (1985); cf. Dennis v. Com-
missioner of Correction, 134 Conn. App. 520, 536, 39
A.3d 799 (actual prejudice presumed when petitioner’s
right to counsel violated); Bowers v. Commissioner of
Correction, 33 Conn. App. 449, 453 n.3, 636 A.2d 388
(petitioner proving ineffective assistance of counsel
necessarily proves both cause and prejudice), cert.
denied, 228 Conn. 929, 640 A.2d 115 (1994). ‘‘To mount a
successful collateral attack on his conviction, a prisoner
must demonstrate a miscarriage of justice or other prej-
udice and not merely an error which might entitle him
to relief on appeal. . . . In order to demonstrate such
a fundamental unfairness or miscarriage of justice, the
petitioner should be required to show that he is bur-
dened by an unreliable conviction.’’ (Citations omitted;
internal quotation marks omitted.) Summerville v. War-
den, 229 Conn. 397, 419, 641 A.2d 1356 (1994).
The alleged constitutional deprivation in the petition-
er’s habeas petition is based on the lack of a Salamon
instruction. In Salamon, our Supreme Court held 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.’’ (Emphasis added.) State v. Salamon, supra,
287 Conn. 542. This intent requirement has become a
touchstone for all kidnapping instructions. The court
further stated that ‘‘[f]or purposes of making [the] deter-
mination [of whether a criminal defendant’s movement
or confinement of a victim was necessary or incidental
to the commission of another crime], 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 dur-
ing 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.’’ (Emphasis added.) Id.,
548. Viewing the claim before us in light of these princi-
ples, we now proceed to our analysis of whether the
habeas court properly construed the petitioner’s Sala-
mon claim to be excused from procedural default.
In prior habeas appeals in which petitioners have
challenged their kidnapping convictions7 on Salamon
grounds, the resolution of Connecticut’s appellate
courts regarding actual prejudice have been highly
dependent on the facts and circumstances underlying
each case, yet, consistent with the principles underlying
our Supreme Court’s analysis in Salamon, the decisions
reveal that the absence of a Salamon instruction gener-
ally has been construed as more prejudicial in cases
where a defendant’s kidnapping related actions were
closely aligned in time, place, and manner to his other
criminal acts. Analyses of Salamon claims have focused
on a variety of factors in determining whether a kidnap-
ping conviction can stand, but the timing, location, and
manner in which the defendant commits criminal acts
against a victim are particularly crucial factors. Thus,
in Hinds v. Commissioner of Correction, supra, 151
Conn. App. 854–58, this court concluded that a peti-
tioner, having been convicted of kidnapping and sexual
assault, had demonstrated good cause and actual preju-
dice excusing procedural default with respect to his
Salamon claim. This court deemed as particularly sig-
nificant the facts that the abduction and sexual assault
had occurred within several steps of the petitioner’s
truck and within a matter of several minutes. Id., 858–59.
Similarly, in Epps v. Commissioner of Correction,
supra, 153 Conn. App. 732–33, 741, this court once again
took note of facts in the record showing that the peti-
tioner—who was challenging a procedural default
defense with respect to his Salamon claim—had
punched the victim in his car, dragged her to the car’s
backseat, and began choking and suppressing her all
within a matter of several minutes and within the car
itself. Accordingly, with these facts in mind, some of
which were disputed, this court concluded that the peti-
tioner had established actual prejudice because ‘‘[i]n
the absence of a Salamon instruction, we have no rea-
sonable assurance that the kidnapping conviction was
not based on restraint of the victim that was incidental
to the assault . . . .’’ Id., 742. This court reached the
opposite result in Eric M. v. Commissioner of Correc-
tion, 153 Conn. App. 837, 847, 108 A.3d 1128 (2014),
cert. denied, 315 Conn. 915, 106 A.3d 308 (2015), where
we affirmed the trial court’s summary judgment in favor
of the respondent and held that the lack of a Salamon
instruction was harmless error beyond a reasonable
doubt. Although this court did not conduct a procedural
default analysis in that case, our analysis of the facts
underlying the kidnapping is instructive in our analysis
of actual prejudice because we noted that the petitioner
had restrained the victim for over five hours and sexu-
ally assaulted her for only a few minutes during that
period of time. Id., 846–47. Such overwhelming evi-
dence, this court reasoned, would not persuade any
reasonable jury to find that the petitioner’s restraint of
the victim was merely incidental to his commission of
sexual assault. Id., 847.
Connecticut’s appellate courts have also provided
instructive analyses in direct appeals in which defen-
dants have challenged their kidnapping convictions on
Salamon grounds. These cases illustrate the multifac-
eted approach that Connecticut courts have taken in
evaluating whether a criminal defendant’s actions in
restraining the victim were merely incidental to the
commission of another crime or were so separate and
distinct as to constitute a separate kidnapping offense.
These cases further establish the importance of examin-
ing the timing, location, and manner of the defendant’s
actions against the victim. For example, in State v.
Hampton, 293 Conn. 435, 455–64, 988 A.2d 167 (2009),
our Supreme Court concluded that the lack of a Sala-
mon instruction at trial was harmless error because
evidence in the record showed that the defendant and
a criminal associate had driven the victim in a car for
over three hours across the Hartford area before they
sexually and physically assaulted her in the car. Simi-
larly, in State v. Nelson, 118 Conn. App. 831, 834–36,
856, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d
1074 (2010), this court held that the absence of a Sala-
mon instruction was harmless error where the defen-
dant and a criminal associate had forcibly entered the
victim’s home, assaulted and bound him, stolen valu-
ables from his home, put him in the backseat of his
own car, and then drove around the Hartford area to
various locations before leaving him bound in his car
nearly five hours later. These cases illustrate how Con-
necticut courts ultimately assess the importance of a
Salamon instruction by scrutinizing how a reasonable
jury would perceive the defendant’s restraint of the
victim, particularly with respect to when, where, and
how the defendant confined or moved the victim. See
State v. Fields, 302 Conn. 236, 250–53, 24 A.3d 1243
(2011) (holding that failure of trial court to provide
Salamon instruction on one of two kidnapping counts
against defendant was not harmless error where facts
showed defendant had assaulted one of several victims
as he entered his house, dragged him to bathroom in
house and continued to assault him, and dragged him
outside and placed him in parked car in driveway of
house before victim was able to escape, all of which
occurred within matter of minutes); State v. Flores, 301
Conn. 77, 86–89, 17 A.3d 1025 (2011) (same holding
where defendant and several criminal associates had
entered victim’s home, held her at gunpoint, and threat-
ened her while carrying out robbery of victim’s home,
all of which lasted several minutes); see also State v.
Ward, 306 Conn. 718, 736–38, 51 A.3d 970 (2012)
(reversing trial court’s postguilty verdict judgment of
acquittal on kidnapping charge and concluding that
jury, which had received Salamon instruction, could
have found that defendant’s confinement and move-
ment of victim was not merely incidental to his sexual
assault of her where he held her at knifepoint in kitchen
of victim’s home, forced her to walk into bedroom, and
sexually assaulted her there).
We conclude that the petitioner in the present case
has failed to meet his heavy burden of demonstrating
actual prejudice from the trial court’s failure to provide
a Salamon instruction at his criminal trial. The petition-
er’s kidnapping conviction constitutes neither a funda-
mental unfairness nor a miscarriage of justice. See
Murray v. Carrier, supra, 477 U.S. 494; Summerville
v. Warden, supra, 229 Conn. 419. Where the state has
presented overwhelming evidence that a defendant con-
victed of kidnapping had restrained the victim for a
substantial period of time; see Eric M. v. Commissioner
of Correction, supra, 153 Conn. App. 846–47; had moved
the victim a substantial distance against her will, and
had harmed the victim in separate and distinct ways,
this court and our Supreme Court have concluded that
any absence of a Salamon instruction at the defendant’s
trial was a harmless impropriety. See State v. Hampton,
supra, 293 Conn. 463–64; State v. Nelson, supra, 118
Conn. App. 860–62. On the basis of our review of the
record and our cognizance of the dictates of Salamon,
we conclude that when presented with the facts of
the underlying crime, as set forth by this court in the
petitioner’s direct appeal, a reasonable jury would not
have found the petitioner’s restraint of the victim to
have been merely incidental to his sexual assault of
her. Furthermore, we disagree with the habeas court’s
conclusion that the evidence in the record fails to show
that the petitioner’s restraint and abduction of the vic-
tim were sufficiently disconnected from his sexual
assault of her to constitute a kidnapping. To the con-
trary, we conclude that a reasonable jury, when pre-
sented with the evidence in the record, would have
been able to find beyond a reasonable doubt that the
petitioner’s restraint and abduction of the victim were
sufficiently disconnected from his sexual assault of her
to constitute a kidnapping. Contra Hinds v. Commis-
sioner of Correction, supra, 151 Conn. App. 858–59
(concluding that petitioner had established actual preju-
dice because record revealed that state did not present
evidence that petitioner’s restraint and abduction of
victim was ‘‘sufficiently disconnected from his sexual
assault of . . . victim so as to render . . . absence of
. . . Salamon instruction harmless’’).
Our review of the trial record reveals that the follow-
ing facts were before the jury when it reached its ver-
dict. On direct examination, the victim testified that
J.R.’s was located in the Moodus village of East Haddam
on September 17, 1996. The victim testified that she
had been walking for ‘‘[m]aybe two minutes’’ after she
left J.R.’s before she was offered a ride home by the
petitioner in his car. The victim testified that her home
on September 17, 1996, was located in Moodus and that
it was a five minute walk from where the petitioner
picked her up in his car. The victim testified that the
petitioner drove past her home against her will, grab-
bing her as she tried to exit his car. Furthermore, the
petitioner admitted in his habeas pleadings that he
restrained the victim against her will while he drove
her in his car. Specifically, in the factual claims section
of his amended petition, he stated that ‘‘the victim
attempted to leave the car, but the petitioner refused
to permit [her] to exit the car.’’ (Emphasis added.)
During defense counsel’s cross-examination of the vic-
tim, the victim testified that she had been in the petition-
er’s vehicle ‘‘for a significant period of time.’’ The
petitioner, in a sworn statement to the police that was
admitted as a full exhibit at trial, stated that he drove
the victim to Cockaponset State Forest near some lakes,
which was ‘‘about a twenty minute ride’’ from J.R.’s.
On direct examination, one of the Connecticut state
troopers who arrived at the scene shortly after the
assault had been reported testified that he located the
petitioner’s car about seven tenths of a mile down a
gravel road leading from a paved road into Cockaponset
State Forest. Finally, there is substantial evidence in
the record indicating that the petitioner’s sexual and
physical assault of the victim occurred in Cockaponset
State Forest in close proximity to the petitioner’s car.
See State v. Wilcox, supra, 254 Conn. 445. Only after
secreting the victim during the night in an area well
into the state forest—where her chances of detection
and escape were diminished, and the summoning of
assistance would have been difficult for her—did the
petitioner pull the victim out of his car, drag her approx-
imately twenty feet into the woods off the access road,
and physically and sexually assault her. The petitioner
also attempted a second sexual assault of her, but the
victim fled further into the woods.
We conclude that the evidence in the record estab-
lishes that the petitioner’s restraint and abduction of
the victim in his car were not merely incidental to his
ultimate sexual assault of her in Cockaponset State
Forest.8 See State v. Salamon, supra, 287 Conn. 550. One
can draw a reasonable inference that the petitioner’s
restraint of the victim, which commenced when he
abducted her by refusing to turn onto her street in
Moodus and continued until he drove her to Cocka-
ponset State Forest in an adjacent town, was to avoid
detection, and not necessary only to complete the act
of sexual assault. One can also reasonably infer that
the petitioner drove the victim from her street to Cocka-
ponset State Forest with the intent to hinder her ability
to call for assistance, given the remoteness of the loca-
tion where he ultimately stopped his car. One also can
reasonably infer, given that the petitioner attempted a
second sexual assault of the victim, that he intended
to confine her for a lengthy period of time in order to
perpetrate more than a single sexual assault of her.
There is overwhelming evidence in the record to sup-
port such inferences, all of which strongly suggest that
the petitioner had in fact committed the separate and
distinct kidnapping offense in addition to sexual and
physical assault. Therefore, we deem the habeas court’s
actual prejudice determination to be reversible error
on the basis of our conclusion that the absence of a
Salamon instruction in the petitioner’s criminal trial
did not significantly impact its outcome. Because the
petitioner failed to prove actual prejudice from the
absence of a Salamon instruction at his criminal trial,
he is not excused from his procedural default and his
habeas petition must be dismissed.
The judgment is reversed and the case is remanded
with direction to dismiss the petitioner’s amended peti-
tion for a writ of habeas corpus.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e
2
For the remainder of this opinion, we shall refer to this claim as the
petitioner’s Salamon claim.
3
Specifically, the respondent argues that the habeas court erred because
(1) the petitioner presented no evidence that futility was the cause for his
failure to raise the Salamon claim, and (2) it improperly concluded that the
petitioner had demonstrated good cause for not raising his Salamon claim
at trial or on appeal because he had ‘‘no reasonable basis’’ to do so.
4
The petitioner divides his argument concerning cause into three subparts,
in which he argues the following: (1) this court should decline to review
the respondent’s claim that the petitioner failed to present evidence about
the futility of raising a Salamon claim because it was never presented to
the habeas court; (2) if this court decides to review the respondent’s claim,
the habeas court correctly concluded that the petitioner had good cause
for failing to raise a Salamon claim because the petitioner adequately estab-
lished such a claim’s futility; and (3) the habeas court properly used the
term ‘‘futility’’ to describe the determination that the petitioner’s counsel
had no reasonable basis for raising a Salamon claim.
5
The petitioner divides this argument concerning actual prejudice into
four subparts, in which he argues the following: (1) the habeas court cor-
rectly determined that he was entitled to a Salamon instruction; (2) the
habeas court’s conclusion regarding his satisfying his burden to establish
prejudice was not based on clearly erroneous factual findings; (3) the habeas
court properly applied a harmless error standard in determining prejudice;
and (4) a jury reasonably could find that his restraint of the victim was
incidental to the sexual assault, which means that the absence of a Salamon
instruction in his criminal trial was not harmless error.
6
It is unnecessary for us to address the issue of whether the petitioner
established good cause for his failure to raise a Salamon claim at trial or
on direct appeal because our resolution of the actual prejudice inquiry is
dispositive of this appeal. See Starns v. Cowan, 210 F. Supp. 2d 1033, 1041
(C.D. Ill. 2002) (‘‘[t]his court does not need to examine whether Petitioner
had adequate cause for not raising the claim because he cannot meet the
second requirement of actual prejudice’’); Giannotti v. Warden, 26 Conn.
App. 125, 129, 599 A.2d 26 (1991) (‘‘The Wainwright [v. Sykes, 433 U.S. 72,
87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)] standard requires that the petitioner
show good cause for the failure to preserve a claim at trial and actual
prejudice resulting from the alleged constitutional violation. . . . The peti-
tioner must establish both elements to obtain relief. . . . Here, the record
is clear that the petitioner failed to satisfy at least the second requirement
of the Wainwright cause and prejudice standard. Thus, he is not entitled
to review of his constitutional claim on the merits.’’ [Citations omitted.]),
cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).
7
General Statutes § 53a-92 (a) provides in relevant part: ‘‘A person is
guilty of kidnapping in the first degree when he abducts another person
and . . . (2) he restrains the person abducted with intent to (A) inflict
physical injury upon him or violate or abuse him sexually; or (B) accomplish
or advance the commission of a felony; or (C) terrorize him or a third
person; or (D) interfere with the performance of a government function.’’
8
The respondent claims that the habeas court erroneously found that ‘‘the
state did not present evidence that the petitioner’s restraint and abduction of
the victim was sufficiently disconnected from his sexual assault of the victim
so as to render the absence of a Salamon instruction harmless.’’ Specifically,
the respondent asserts that the court’s conclusion in this regard cannot
stand because it relies on the habeas court’s clearly erroneous factual find-
ings, namely, that ‘‘there is no evidence in the record as to the distance
between the location where the victim attempted to exit the vehicle and
the location where she was sexually assaulted, how long the victim was in
the petitioner’s car after she attempted to exit the vehicle, or the totality
of the time the petitioner held the victim against her will.’’ The petitioner
argues that the habeas court’s conclusion was proper because the victim
is ‘‘the only witness who could legitimately attest to the times and distances
of the restraint’’ and her testimony does not provide any reliable evidence
as to these facts. After reviewing the testimony and exhibits adduced at the
petitioner’s criminal trial, we agree with the respondent that the habeas
court’s conclusion cannot stand. Our review of the evidence before the
habeas court establishes that there is evidence in the record pertaining to
the distance between the location where the victim attempted to exit the
vehicle and the location where she was sexually assaulted. We also conclude,
contrary to the habeas court’s conclusion, that there is evidence in the
record concerning the length of time that the victim was in the petitioner’s
car after she attempted to exit it. Finally, we conclude that there is evidence
in the record pertaining to the totality of the time that the petitioner held
the victim against her will.