Eric M. v. Commissioner of Correction ( 2014 )

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ERIC M.* v. COMMISSIONER OF CORRECTION
(AC 35661)
DiPentima, C. J., and Alvord and Harper, Js.
Argued September 23—officially released December 2, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Robert J. McKay, assigned counsel, for the appel-
lant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom were Brian Preleski, state’s attorney, and, on
the brief, Jo Anne Sulik, supervisory assistant state’s
attorney, for the appellee (respondent).
Opinion
HARPER, J. The petitioner, Eric M., appeals following
the summary judgment rendered in favor of the respon-
dent, the Commissioner of Correction. On appeal, the
petitioner claims that the habeas court improperly
granted this motion. We disagree and affirm the judg-
ment of the habeas court.
The record reveals the following facts and procedural
history, which are relevant to our resolution of this
appeal. ‘‘At all times relevant to this proceeding, the
victim, S, and the [petitioner] were married. They sepa-
rated in February, 2000, and divorce proceedings com-
menced. While the divorce was pending, the [petitioner]
and the victim had agreed that the victim would reside
in the marital home [in Southington] and the [petitioner]
would stay at his parents’ house.
‘‘On May 9, 2001, the [petitioner] told the victim that
he would come to the marital home the following day
to mow the lawn. When the victim arrived home on
May 10, 2001, she did not see the [petitioner’s] car in
the driveway. She entered the house and noticed that
the entertainment center in the living room had been
moved slightly and that the power was out in the room.
When she went to the basement to check the fuse box,
the [petitioner] pounced on her and placed her in a
choke hold. He then pinned her down and forced her
to put on handcuffs, threatening to choke her if she did
not comply. The [petitioner] removed the victim’s shirt
and dressed her in jean shorts. He then tied her to a
folding chair, using duct tape, rope and wire, and gagged
her mouth with bandanas and rope.
‘‘The [petitioner] left the victim tied to the chair
despite her cries and pleas until, at some point, he
allowed her to use a bathroom. While the victim
remained handcuffed and gagged, the [petitioner] led
her upstairs to the bathroom where he watched her use
the toilet and then performed cunnilingus on her.
‘‘The [petitioner] attempted to tie the victim to the
toilet, but she was able to run into the living room
where the [petitioner] tackled her on the couch. When
she ran to the porch and attempted to open a storm
door, the [petitioner] caught her, and choked her until
she lost consciousness and fell through the glass
storm door.
‘‘Next, the [petitioner] brought the victim to the bed-
room and tied her to the bed. When he left the room
to clean up the broken glass from the shattered storm
door, the victim was able to maneuver enough to dial
911 and to seek help from the telephone operator. Sub-
sequently, the [petitioner] returned and pulled the tele-
phone from the wall.
‘‘Benjamin Doerfler, a police officer with the South-
ington police department, arrived at the victim’s resi-
dence at 6:55 p.m. in response to the 911 call. He entered
the residence through the porch door, and noticed bro-
ken glass and blood. He announced his presence and
heard a female scream. He followed the scream to the
bedroom, kicked open the door and saw the [petitioner]
on top of the victim on the bed. The victim’s hands and
feet were bound, and she was crying and screaming.
In conjunction with the arrest of the [petitioner], the
police seized an eight millimeter videotape from a video
camera in the basement depicting the events that took
place in the basement on the day in question.’’ (Internal
quotation marks omitted.) State v. Eric M., 271 Conn.
641, 644–45, 858 A.2d 767 (2004).
After a jury trial, the petitioner was convicted of two
counts of kidnapping in the first degree in violation of
General Statutes § 53a-92 (a) (2) (A) and (C), and one
count each of unlawful restraint in the first degree in
violation of General Statutes § 53a-95 (a), assault in the
second degree in violation of General Statutes § 53a-60
(a) (1), and sexual assault in a spousal relationship in
violation of General Statutes § 53a-70b (b). Id., 643. The
court sentenced the petitioner to a total effective term
of seventy-five years incarceration, suspended after
twenty-two years, followed by thirty-five years of proba-
tion. Id., 647.
The petitioner filed a petition for a writ of habeas
corpus on December 14, 2010. He then filed an amended
petition on June 1, 2012.1 The petitioner claimed that
under current case law interpreting our kidnapping stat-
ute; State v. Salamon, 287 Conn. 509, 949 A.2d 1092
(2008);2 see State v. Sanseverino, 287 Conn. 608, 949
A.2d 1156 (2008), overruled in part by State v. DeJesus,
288 Conn. 418, 437, 953 A.2d 45 (2008), and superseded
in part after reconsideration by State v. Sanseverino,
291 Conn. 574, 969 A.2d 710 (2009); see also Luurtsema
v. Commissioner of Correction, 299 Conn. 740, 12 A.3d
817 (2011); he was deprived of his constitutional due
process right to a fair trial because it was possible that
the jury, if given a proper jury instruction, would not
have found him guilty on the separate counts of kidnap-
ping in the first degree. The petitioner then argued that
because there was no Salamon instruction given at his
criminal trial, the habeas court should have rendered
judgment in his favor, vacated the conviction of both
kidnapping counts, and ordered a new trial on those
counts.
Both the petitioner and the respondent filed motions
for summary judgment. The petitioner then filed an
objection to the respondent’s motion for summary judg-
ment. The habeas court denied the petitioner’s motion
for summary judgment and granted the respondent’s
motion for summary judgment in a memorandum of
decision on November 20, 2012. In granting the respon-
dent’s motion for summary judgment, the habeas court
concluded that there was sufficient evidence in the trial
record to show that the restraints imposed on the victim
were not incidental to any of the other crimes of which
the petitioner was convicted and, therefore, any failure
by the trial court in not giving the Salamon instruction
was harmless beyond a reasonable doubt. The peti-
tioner then filed a petition for certification to appeal
on November 30, 2012, which the habeas court granted
on April 4, 2013. We conclude that the habeas court
properly rendered summary judgment in favor of the
respondent and therefore affirm the judgment of the
habeas court.
We begin with the standard of review. ‘‘The party
moving for summary judgment has the burden of show-
ing the absence of any genuine issue of material fact
and that the party is, therefore, entitled to judgment as
a matter of law.’’ (Internal quotation marks omitted.)
Rogers v. Commissioner of Correction, 143 Conn. App.
206, 210, 70 A.3d 1068 (2013). ‘‘Practice Book § 23-37
provides in relevant part that a habeas court may grant
summary judgment if the pleadings, affidavits and any
other evidence submitted show that there is no genuine
issue of material fact between the parties requiring a
trial and the moving party is entitled to judgment as a
matter of law. On review from the granting of a motion
for summary judgment, our task is to determine
whether the court correctly determined that the moving
party was entitled, as a matter of law, to summary
judgment on the basis of the absence of any genuine
issues of material fact requiring a trial. Because this
inquiry requires a legal determination, our review is
plenary.’’ (Internal quotation marks omitted.) Lawrence
v. Commissioner of Correction, 125 Conn. App. 759,
762, 9 A.3d 772 (2010).
On appeal, the petitioner claims that the habeas court
erred in granting the respondent’s motion for summary
judgment. Specifically, the petitioner argues that the
habeas court erred in its conclusion that the trial court’s
failure to give a Salamon instruction was harmless error
beyond a reasonable doubt. We disagree.
To analyze the petitioner’s claim, we must first ana-
lyze the decision by our Supreme Court in Salamon.
Our Supreme Court in Salamon interpreted § 53a-92
(a) (2) (A) when it 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.’’ State v. Salamon,
supra, 287 Conn. 542. The court explained further, there
are instances where ‘‘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.) Id.,
547.
Stated differently, our Supreme Court ‘‘concluded
that General Statutes § 53a-92 (a) (2) (A) does not
impose liability for the crime of kidnapping where the
restraint used is merely incidental to the commission
of another offense.’’ (Footnote omitted.) Luurtsema v.
Commissioner of Correction, supra, 299 Conn. 742–43.
The interpretation of § 53a-92 (a) (2) (A) in Salamon
and Sanseverino narrowed the previous scope of liabil-
ity under that statute. ‘‘[T]he appropriate remedy for
the instructional impropriety identified in Salamon is
to reverse the defendant’s kidnapping conviction and
to remand the case to the trial court for a new trial.’’
State v. DeJesus, 288 Conn. 418, 434, 953 A.2d 45 (2008).
Our Supreme Court in Luurtsema held that the deci-
sions in Salamon and Sanseverino apply retroactively
to collateral attacks on final judgments. Luurtsema v.
Commissioner of Correction, supra, 299 Conn. 760.
Specifically, it stated, ‘‘we adopt a general presumption
in favor of full retroactivity for judicial decisions that
narrow the scope of liability of a criminal statute.’’ Id.,
764. As applied to currently incarcerated individuals,
our Supreme Court 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.’’ Id., 760. The interpretation of
§ 53a-92 (a) (2) (A) in Salamon was six years subse-
quent to the petitioner’s sentencing. Consequently, at
his criminal trial the jury did not receive a Salamon
instruction.
Despite the presumptive entitlement to the benefit
of the new interpretation on collateral attack, as dis-
cussed in Luurtsema, our Supreme Court in that case
declined ‘‘the petitioner’s invitation to adopt a per se
rule in favor of full retroactivity . . . because a review
of the diverse contexts in which such challenges have
arisen persuades us that there are various situations in
which to deny retroactive relief may be neither arbitrary
nor unjust.’’ Id. If the absence of a Salamon instruction
resulted in harmless error, then a remand for a new
trial is not necessary.
Our Supreme Court in Luurtsema discussed the dis-
position of cases where the failure to give a Salamon
instruction was harmless. ‘‘[W]e expect that courts will
be able to dispose summarily of many cases where it
is sufficiently clear from the evidence presented at trial
that the petitioner was guilty of kidnapping, as properly
defined, that any error arising from a failure to instruct
the jury in accordance with the rule in Salamon was
harmless.’’ Id., 769–70; see also State v. Kitchens, 299
Conn. 447, 458, 10 A.3d 942 (2011) (‘‘the failure to give
a Salamon instruction is not reversible error per se; it
may be harmless on the facts of a particular case’’);
State v. Hampton, 293 Conn. 435, 463–64, 988 A.2d 167
(2009) (failure to give Salamon instruction harmless
when facts showed no reasonable doubt that restraint
of victim was not incidental to sexual assault and
other crimes).
Our Supreme Court in Hampton set forth the test for
determining whether the failure to give the Salamon
instruction is harmless. ‘‘[T]he test for determining
whether a constitutional [impropriety] is harmless . . .
is whether it appears beyond a reasonable doubt that
the [impropriety] complained of did not contribute to
the verdict obtained.’’ (Internal quotation marks omit-
ted.) State v. Hampton, supra, 293 Conn. 463. We now
turn to the present case to analyze whether the failure
to give such instruction would result in harmless error,
and conclude that in this instance, such failure was
harmless beyond a reasonable doubt.
The following additional facts found by the habeas
court are relevant to our analysis. ‘‘The evidence at
trial shows that the incident began when the petitioner
accosted the victim in the basement shortly after she
arrived home at 2 p.m. and continued until the police
arrived at some time near 7 p.m., a period of five hours.
The only evidence of sexual assault to which the victim
testified was where the petitioner performed oral sex
upon her while she was restrained in the bathroom of
the home. This assault, the victim testified, lasted a few
minutes. Prior to the sexual assault, the victim testifies
in detail about the long period of time the petitioner
had her gagged and handcuffed while tied to a chair
with duct tape around her ankles and rope and tele-
phone cords around her arms, torso, neck and head at
the beginning of the incident in the basement, how he
left the home during that time to go hide a car. The
victim’s testimony also goes into detail as to how,
toward the end of the incident, having been temporarily
released from all restraints except handcuffs to use the
bathroom, she attempted to escape through the living
room out to the back porch. After a brief struggle with
the petitioner on the couch, the victim was caught on
the back porch and choked unconscious. She woke to
find that she was being dragged back into the home,
where she was tied to the bed in such a fashion that
she could not unbend her legs after she tried to escape
following the sexual assault in the bathroom.’’ (Foot-
notes omitted; internal quotation marks omitted.) This
second restraint did not cease until the police arrived,
five hours after the initial restraint in the basement.
The facts surrounding the victim’s kidnapping involve
the victim being restrained, gagged, and handcuffed for
a period spanning at least five hours. At some point
during this five hour period of restraint, about which
the victim testified, the petitioner sexually assaulted
her for a period that lasted only a few minutes. Such
acts of restraint, which occurred both prior to and after
the commission of the sexual assault, were not merely
incidental to the commission of the sexual assault or
any of the other crimes of which the petitioner was
convicted. In this case, the facts surrounding the kid-
nappings and sexual assault implicate the analysis
under Hampton. In Hampton, our Supreme Court
agreed with the state that the lack of a Salamon instruc-
tion ‘‘was harmless because no reasonable juror could
conclude that . . . the restraint necessary to commit
the kidnapping was merely incidental to the restraint
inherent in the sexual assault and other crimes charged
against the defendant, which occurred nearly four hours
after the kidnapping had taken place.’’ (Emphasis omit-
ted.) State v. Hampton, supra, 293 Conn. 456. Here, a
review of the record leads us to the same conclusion.
The petitioner argues that his previous consensual
bondage relationship with the victim should lead us to
conclude that his entire course of conduct from approx-
imately 2 p.m. to 7 p.m. was part of the sexual assault.
The facts, as previously detailed, do not support this
argument. Even if the victim had consented to bondage
over the course of the marriage, the Salamon instruc-
tion would not have affected the finding by the jury at
the criminal trial that the restraints and sexual assault
on the date in evidence were not consensual. Given the
magnitude and duration of the restraints on the victim,
there was ample evidence for a jury to have found these
acts committed by the petitioner to be separate, and
not incidental to, the commission of the sexual assault
or any of the other crimes of which the petitioner was
convicted. Therefore, the failure to give a Salamon
instruction was harmless beyond a reasonable doubt
in this instance.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to use the petitioner’s full name or to
identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
Although the petition fails to allege the specific legal grounds on which
the petitioner claims he is entitled to relief, it is clear from the arguments
made by both parties before this court and the briefs submitted that the
petitioner’s claim relates to his due process right to a fair trial.
2
In Salamon, our Supreme Court narrowed and modified the definition
of what the state must prove to convict a person of kidnapping when
committed in conjunction with another crime, stating 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.’’ State v.
Salamon, supra, 287 Conn. 542. The petitioner, whose criminal trial occurred
six years prior to the decision in that case, seeks a retroactive application
of the kidnapping definition to his case and for his case to be remanded
for a new trial on the kidnapping counts.