Farmer v. Commissioner of Correction

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JOHN FARMER v. COMMISSIONER OF CORRECTION

(AC 36923)

Lavine, Sheldon and Mullins, Js.

Argued January 11—officially released May 10, 2016

(Appeal from Superior Court, judicial district of

Tolland, Bright, J.)

Mary Boehlert, assigned counsel, for the appellant

(petitioner).

Lisa Herskowitz, senior assistant state’s attorney,

with whom, on the brief, were Brian Preleski, state’s

attorney, Angela R. Macchiarulo, senior assistant

state’s attorney, and Michael Proto, assistant state’s

attorney, for the appellee (respondent).

Opinion

MULLINS, J. In this habeas corpus action, the peti-

tioner, John Farmer, challenged his kidnapping convic-

tion on the ground that the trial court had failed to

instruct the jury, in accordance with State v. Salamon,

287 Conn. 509, 949 A.2d 1092 (2008), that to find him

guilty of kidnapping, it had to find that he intended to

restrain the victim to a greater degree than was neces-

sary to commit assault. The habeas court concluded

that the trial court’s failure to give this instruction was

error, but that the error was harmless. As a result, the

habeas court denied the petition for a writ of habeas

corpus. We affirm the judgment of the habeas court.

The petitioner was charged with sexual assault in the

first degree in violation of General Statutes § 53a-70 (a)

(1), kidnapping in the first degree in violation of General

Statutes § 53a-92 (a) (2) (A), and assault in the second

degree in violation of General Statutes § 53a-60 (a) (1).

After a trial, the jury found the petitioner not guilty of

all of the crimes expressly pleaded in the information

but found him guilty of the lesser included offenses of

kidnapping in the second degree in violation of General

Statutes § 53a-94 and assault in the third degree in viola-

tion of General Statutes § 53a-61 (a) (1). The trial court

sentenced the petitioner on those charges to a total

effective term of twenty years imprisonment.

On direct appeal, this court affirmed the petitioner’s

conviction. State v. Farmer, 108 Conn. App. 82, 946

A.2d 1262, cert. denied, 288 Conn. 914, 954 A.2d 185

(2008). This court stated that the jury reasonably could

have found the following facts: ‘‘The [petitioner] and

the [victim] lived together in an apartment in Bristol.

Starting in mid-morning on October 19, 2004, they began

to drink heavily and continued to do so through the

day and evening. After watching a baseball game on

television at the home of the [petitioner’s] brother, the

[victim] began to drive both of them home. The [peti-

tioner] insisted that he should drive because she was

too inebriated to do so. He assaulted her physically to

force her to relinquish the driving of the car to him.

Instead of driving them home to their apartment, the

[petitioner] drove to a desolate dirt road in Burlington

where he resumed his physical assault of the [victim],

removed her underclothes and engaged in sexual con-

duct with her. Eventually, the [petitioner] drove the

[victim] to his mother’s house in Bristol. The next morn-

ing he allowed her to drive herself home. . . .

‘‘[The victim] called the police, whom she accompa-

nied to the dirt road where the [petitioner] had taken

her. There they found her ripped underwear on the

ground. A subsequent physical examination of the [vic-

tim] at Bristol Hospital confirmed that she had been

beaten.

‘‘The [petitioner] did not deny striking the [victim]

but said that he had done so in self-defense after the

[victim] had begun hitting him. He acknowledged that

he had engaged in sexual conduct with the [victim] but

alleged that their sexual engagement had been consen-

sual. The jury rejected his first defense but accepted

the second one.’’ Id., 84–85.

The petitioner thereafter filed an amended petition

for a writ of habeas corpus. In his amended petition,

he alleged, in count two,1 that his kidnapping conviction

could not stand because it was obtained under the pre-

Salamon interpretation of the kidnapping statute.2 After

a trial, the habeas court denied the petition. In its memo-

randum of decision, the habeas court concluded that

the trial court’s instructional impropriety was harmless.

The habeas court then granted the petitioner’s petition

for certification to appeal. This appeal followed. Addi-

tional facts will be set forth as necessary.

On appeal, the petitioner claims that the habeas court

improperly concluded that the trial court’s failure to

instruct the jury on the kidnapping charge in accor-

dance with the principles of Salamon was harmless.

We disagree.

We first set forth the applicable standards of review

and principles of law. ‘‘The habeas court is afforded

broad discretion in making its factual findings, and

those findings will not be disturbed unless they are

clearly erroneous.’’ (Internal quotation marks omitted.)

Anderson v. Commissioner of Correction, 313 Conn.

360, 375, 98 A.3d 23 (2014), cert. denied sub nom. Ander-

son v. Semple, U.S. , 135 S. Ct. 1453, 191 L. Ed.

2d 403 (2015). 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. State v. Thompson, 118

Conn. App. 140, 155, 983 A.2d 20 (2009), cert. denied,

294 Conn. 932, 986 A.2d 1057 (2010).

‘‘Our Supreme Court in Salamon . . . 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. . . . The court explained further [that] 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 circum-

stances of each case. . . .

‘‘Stated differently, [our kidnapping statutes do] not

impose liability for the crime of kidnapping where the

restraint used is merely incidental to the commission

of another offense. . . . [This] interpretation . . .

narrowed the previous scope of liability under [those]

statute[s]. [T]he appropriate remedy for the instruc-

tional impropriety identified in Salamon is to reverse

the [petitioner’s] kidnapping conviction and to remand

the case to the trial court for a new trial. . . .

‘‘Our Supreme Court in Luurtsema [v. Commissioner

of Correction, 299 Conn. 740, 764, 12 A.3d 817 (2011)]

held that the [decision] in Salamon appl[ies] retroac-

tively to collateral attacks on final judgments. . . . 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 expan-

sive reading of the statute presumptively will be entitled

to the benefit of the new interpretation on collateral

attack. . . .

‘‘Despite the presumptive entitlement to the benefit

of the new interpretation on collateral attack . . . our

Supreme Court in [Luurtsema] declined the petitioner’s

invitation to adopt a per se rule in favor of full retroactiv-

ity . . . because a review of the diverse contexts in

which such challenges have arisen persuade[d] [the

court] that there are various situations in which to deny

retroactive relief may be neither arbitrary nor unjust.

. . . 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. [The court] expect[ed] that

courts will be able to dispose summarily of many cases

where it is sufficiently clear from the evidence pre-

sented at trial that the petitioner was guilty of kidnap-

ping, as properly defined, [and] that any error arising

from a failure to instruct the jury in accordance with

the rule in Salamon was harmless. . . .

‘‘Our Supreme Court in [State v. Hampton, 293 Conn.

435, 463–64, 988 A.2d 167 (2009)] 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.’’ (Citations omitted; internal quo-

tation marks omitted.) Eric M. v. Commissioner of

Correction, 153 Conn. App. 837, 843–45, 108 A.3d 1128

(2014), cert. denied, 315 Conn. 915, 106 A.3d 308 (2015).

In the present case, the following additional facts, as

found by the habeas court, illuminate our disposition

of the petitioner’s claim on appeal. ‘‘[T]he evidence at

the petitioner’s criminal trial show[ed] that there was

a significant amount of movement of the victim, and

that the abduction lasted for several hours. . . .3 Addi-

tionally, a review of the testimony at the petitioner’s

criminal trial reveals that while the petitioner was driv-

ing, the victim repeatedly requested to exit the vehicle

and attempted to exit the car three or four times, but

the petitioner grabbed her and prevented her from

escaping.

‘‘It is clear from the record that the petitioner

intended to prevent the victim’s liberation for a longer

period of time than that which was necessary to commit

the assault. The restraint necessary, if any, for the [peti-

tioner] to have assaulted the victim in this case was

minimal in comparison to the amount of time that he

held her against her will. The [petitioner’s] prolonged

restraint of the victim in her car while driving her to

and from the desolate area, and while forcing her to

remain in the car overnight at his mother’s house after

the assault occurred, could not reasonably be consid-

ered merely incidental to the assault charges.’’ (Foot-

note added.) Our review of the record persuades us,

as it did the habeas court, that the trial court’s failure

to give a Salamon instruction was harmless.

Here, the facts demonstrate that there is no reason-

able doubt that the petitioner’s restraint of the victim

was not merely incidental to the assault because he

restrained her for a longer period of time than was

necessary to assault her, and, therefore, the restraint

had independent criminal significance. Indeed, as this

court stated in State v. Nelson, 118 Conn. App. 831, 861,

986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074

(2010), ‘‘[t]he substantial length of the victim’s restraint

following the assaultive conduct by the defendant is

significant to our analysis. The defendant’s restraint

during such a substantial amount of time is overwhelm-

ing evidence of [his] intent to prevent the victim’s libera-

tion for a longer period of time than that necessary for

the commission of any other crime.’’

The evidence in the present case established that the

petitioner first assaulted the victim while she still was

driving the car. Following that assault, the petitioner

restrained the victim over a period of several hours

beginning when he prevented her from exiting the car

shortly after they left his brother’s house and ending

six to seven hours later when he permitted her to drive

home from his mother’s house.4 This lengthy confine-

ment established the petitioner’s intent to prevent the

victim’s liberation for a longer period of time than that

necessary for the commission of the assault.

The fact that other assaults occurred throughout the

restraint is of no moment given that the petitioner

restrained the victim for significant portions of time

when he was not assaulting her.5 See State v. Jordan,

129 Conn. App. 215, 223, 19 A.3d 241 (holding that defen-

dant restrained victims to greater degree than necessary

to commit assaults where, although assaultive behavior

spanned entire forty-five minute duration of victims’

confinement, evidence showed that even when not

assaulting victims defendant controlled their move-

ments, forcing them to clean blood off walls and pre-

venting them from leaving), cert. denied, 302 Conn.

910, 23 A.3d 1248 (2011). Here, even when he was not

assaulting her, the petitioner prevented the victim from

leaving the car for hours, despite her pleas to him to

let her go.

To be sure, in comparison to the span of time over

which the jury reasonably could have found that the

petitioner restrained the victim, his assaults on her were

brief. See Eric M. v. Commissioner of Correction,

supra, 153 Conn. App. 846–47 (five hour period of

restraint both before and after sexual assault not merely

incidental to commission of sexual assault or other

crimes of which petitioner was convicted). As the

habeas court aptly concluded, ‘‘the restraint necessary,

if any, for the [petitioner] to have assaulted the victim

in this case was minimal in comparison to the amount

of time that he held her against her will.’’ Indeed, in its

closing argument at the petitioner’s criminal trial, the

state argued that the restraint had begun prior to their

arrival in Burlington. The state further argued that the

petitioner had assaulted the victim in the car as they

travelled to and reached the dirt road in Burlington.

The state did not argue that any physical assaults

occurred after they left Burlington. In fact, the state

emphasized that the petitioner continued to restrain

the victim long after he had ceased assaulting her: ‘‘the

two of [them] remain[ed] in the car that night. And

finally the following morning [the petitioner] [let] her

go home.’’

The state’s theory—which was supported by the evi-

dence—that the restraint encompassed the entire

period the victim was in the car after the petitioner

started driving, including the overnight period, only

confirms that the lack of the Salamon instruction was

harmless. After the couple left Burlington, and after

the assaults had concluded, the petitioner continued to

prevent the victim’s liberation for another several hours

until morning. Thus, as the habeas court found, the

petitioner ‘‘forc[ed the victim] to remain in the car over-

night at his mother’s house after the assault occurred

. . . .’’ (Emphasis added.) This final, lengthy period

of restraint—after leaving Burlington and lasting until

morning—is overwhelming evidence of the petitioner’s

intent to restrain the victim’s liberty for a longer dura-

tion than necessary to commit another crime. See State

v. Nelson, supra, 118 Conn. App. 861.

The fact that the petitioner drove the victim from one

town to another further demonstrates that the restraint

here was not merely incidental to the assaults. See

State v. Strong, 122 Conn. App. 131, 143, 999 A.2d 765

(defendant’s prolonged restraint of victim in car for

more than one hour while forcing her to drive from one

town to another not merely incidental to threats made

before and during restraint), cert. denied, 298 Conn.

907, 3 A.3d 73 (2010).

Furthermore, the petitioner’s prolonged confinement

of the victim in this case reasonably could not be consid-

ered merely incidental to the assaults that already had

concluded by the time he drove from Burlington to

Bristol and forced her to remain in the car until morning.

Certainly, by the time the petitioner restrained the vic-

tim in the car at his mother’s house, a jury could con-

clude that the assaults had helped the petitioner to

restrain the victim. Conversely, no jury reasonably

could conclude that the restraint at this point was inci-

dental to any assault. Thus, this case—namely, one in

which the assaults were incidental to the kidnapping—

appears to be the converse of a Salamon situation. Cf.

State v. Winot, 294 Conn. 753, 764 n.7, 988 A.2d 188

(2010) (Salamon rule not applicable where, even if

defendant’s restraint of victim also could be found to

have violated other criminal statutes, ‘‘no jury reason-

ably could conclude that the kidnapping was incidental

to [the] commission of those crimes, rather than the

converse’’).

In sum, after reviewing all of the evidence presented,

we do not believe that a rational jury, even if properly

instructed, could find that the petitioner’s restraint of

the victim was inherent in, or incidental to, assault

or any other crime. As a result, it appears beyond a

reasonable doubt that the failure of the trial court to

give a Salamon instruction did not contribute to the

guilty verdict and, therefore, was harmless. Accord-

ingly, the habeas court properly denied the petition for

a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

1

Count one, in which the petitioner alleged the ineffective assistance of

trial counsel, is not at issue on this appeal.

2

The respondent, the Commissioner of Correction, filed a return in which

he asserted the affirmative defense of procedural default on the basis of

the petitioner’s failure to raise his claim at trial or on direct appeal. In his

reply to the return, the petitioner asserted that his claim was not procedurally

defaulted because he had good cause for failing to raise the claim previously

and had been prejudiced by the trial court’s failure to instruct the jury

properly on the kidnapping charge. The habeas court concluded that the

claim had not been procedurally defaulted. The habeas court’s ruling on

procedural default is not challenged in this appeal.

3

The petitioner held the victim against her will for somewhere between

six and seven hours. Specifically, the evidence showed that the restraint

commenced somewhere between midnight and 1 a.m. The victim testified

that it was 11:30 p.m. and the petitioner testified that it was approximately

12:45 or 1 a.m. when he took over driving the car. When he finally permitted

her to leave his mother’s house several hours after he had co-opted the

victim’s car, the victim testified that it was starting to grow light outside,

and the petitioner testified that it was approximately 7:30 a.m.

4

As it relates to the kidnapping, the state argued the following in its

closing argument at the petitioner’s criminal trial. When the petitioner and

victim left his brother’s house, they were in agreement that they were going

home, and the victim was driving. At some point during the drive, there

was violence between them, the petitioner took over driving the car, and

he decided that they were not going to go home. Instead, he drove them to

the deserted dirt road in Burlington. As they travelled to Burlington, the

victim attempted to get out of the car, but the petitioner prevented her from

doing so. After they left Burlington, the petitioner still did not permit her

to leave; rather, he made her remain with him in the car until he finally let

her go in the morning.

5

The victim testified that the petitioner hit her several times while he

drove the car.