Kevin Epps v. Warden (2012)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner was the defendant in a matter pending in the Stamford/Norwalk Judicial District under Docket No. CR04–0147359.   The petitioner was represented at the trial level by Attorney Gary Mastronardi (hereinafter “defense counsel” or “trial counsel”).   Following a jury trial, the jury convicted the petitioner on April 18, 2005 on charges of Assault First Degree, in violation of General Statutes § 53a–59(a)(2),¹ and Kidnapping First Degree, in violation of General Statutes §§ 53a–92(a)(2)(A) and (C).²  The jury acquitted the petitioner of the charge of Attempted Murder, in violation of General Statutes §§ 53a–49(a)(2) and 53a–54.   The jury could reasonably have found the following facts, as related in the Appellate Court decision:

The victim and the defendant dated on and off for about five years, beginning in 1999, and ending at the time of the incident in question on January 10, 2004.   In December 2003, the victim and the defendant became engaged.   Three days prior to the incident in question, the defendant informed the victim that he had tested positive for the sexually transmitted disease, chlamydia.   The chlamydia diagnosis sparked several arguments between the victim and the defendant.

The victim's relationship with the defendant was a “cycle,” in which they fought, she got upset and stayed away from him for a short time but eventually took him back.   The victim had had enough of the circular pattern.   After learning that the defendant had contracted a sexually transmitted disease, the victim decided that the relationship had to end because she believed the defendant was not being faithful to her.   She telephoned the defendant on January 10, 2004, and told him that they needed to talk because their relationship was over.   On that day, the defendant met the victim after work at the Stamford train station.   The victim wanted to end the relationship with the defendant that night.   They stopped at a couple of bars in the vicinity of the train station before the defendant drove them to Rosa Hartman Park in Stamford.

When they arrived at the park, the victim told the defendant that she did not want to marry him and that she did not love him, and, in response, the defendant punched her in the face.   The defendant subsequently pulled her into the backseat of the van and attempted to choke her several times.   Eventually, the victim sat in the front seat to talk to the defendant in an attempt to calm him down.   At that point, she felt her pants become wet.   She then looked down and saw a gasoline can and a book of matches in his hands.   The defendant then struck a match and set her on fire.

(Footnote omitted.)  State v. Epps, 105 Conn.App. 84, 86–89, 936 A.2d 701 (2007), cert. denied, 286 Conn. 903, 943 A.2d 1102 (2008).³  On June 1, 2005, the court, Kavanewsky, J., sentenced the petitioner to 20 years on the Assault First Degree charge and 15 years on the Kidnapping First Degree charge, to be served consecutively, for a total effective sentence of 35 years.   The petitioner appealed his convictions, which were affirmed in State v. Epps, supra.

The petitioner commenced the present action by filing a petition for writ of habeas corpus on June 21, 2006.   Counsel was subsequently appointed and first appeared in the matter in April 2011 and, after investigation, an amended petition was filed on January 25, 2012.   The petitioner brings a single claim that the trial court failed to properly instruct the jury on the charge of Kidnapping First Degree as required under the Salamon and Sanseverino decisions.⁴  The respondent filed a return on March 15, 2012, generally denying the allegations in the petition, and also raising the special defense of procedural default.   The petitioner filed a reply to the return on March 30, 2012, denying that his claim has been procedurally defaulted.   The matter was tried before the court on May 22, 2012.   Both parties were granted the opportunity to file post-trial briefs.   The respondent's brief was received on July 2, 2012, and the petitioner's on July 31, 2012.

II. Law and Discussion

The sole claim in the present petition is that the jury in the petitioner's case was not given an instruction consistent with the holding in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), which held that in order for a defendant to be convicted of a kidnapping in conjunction with another crime, the jury must be instructed 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.”  Id., 542.   The Salamon decision modified the long-standing interpretation of the kidnapping statute, so those who were convicted prior to the Salamon decision are entitled retroactively to the benefit of the new interpretation to collaterally challenge their convictions as a matter of State common law.  Luurstema v. Commissioner of Correction, 299 Conn. 740, 751, 12 A.3d 817 (2011).⁵

The respondent, relying on State v. Golder, 127 Conn.App. 181, 14 A.3d 399, cert. denied, 301 Conn. 912, 19 A.3d 180 (2011), argues that the petitioner in the present case was not entitled to a Salamon instruction, because there was sufficient evidence submitted at trial that the movement and restraint of the victim had independent significance apart from the assault in the first degree conviction to support an independent conviction for kidnapping.   The respondent's reliance on Golder, however, is misplaced.   In that case, the other crime the defendant was charged with, burglary, a property crime, did not require proof that the defendant restrained the victim or made contact with the victim at all in order to be proven.  Golder, supra, 127 Conn.App. 190.   Therefore, all of the restraint against the victim in the Golder case had independent significance that related only to the kidnapping charge.  Id., 190–91.⁶  On the other hand, the present case much more similar factually to the Salamon case, in that both cases involved a person who was charged with a physical assault upon the person of the victim and a kidnapping.   Therefore, the petitioner in the present matter was entitled to have the jury instructed that it could not find him guilty of the kidnapping unless it also found that he intended to restrain the victim for a longer period of time or to a greater extent than was necessary to commit the assaults with which he was also charged.  State v. Salamon, supra, 287 Conn. 549–50.

The respondent also raises the special defense of procedural default to the petitioner's claim, asserting that the petitioner's failure to request a Salamon-like instruction on the kidnapping charge or to object to the court's proposed jury instruction at the trial level prevents him from now raising that issue for the first time in a habeas proceeding.   See, Saunders v. Commissioner of Correction, 137 Conn.App. 493, 498–99, 48 A.3d 728 (2012) (setting forth generally the special defense of procedural default).   There is no dispute that the petitioner did not raise any objection to the court's kidnapping jury instruction or propose his own jury instruction at the trial level.   Despite that, however, this Court is of the opinion that this is not a claim subject to being procedurally defaulted.   See, Smith v. Warden, Superior Court, Judicial District of Tolland, Docket No. TSRCV084002747 (Sept. 13, 2011, Sferrazza, J.) [52 Conn. L. Rptr. 599] (finding procedural default inapplicable to a Salamon claim where the petitioner had failed to raise any claim regarding the court's given jury instruction at the trial level or on direct appeal based).

In Smith, a case factually and procedurally very similar to the present case, wherein the petitioner brought a Salamon claim and the respondent raised the defense of procedural default, the Court, in a thoroughly researched decision, aptly stated:

The court's research discloses that at least seven appellate cases which preceded the petitioner's criminal trial [in 1989] and in which the appellant argued that the Chetcuti ruling ought to be discarded and replaced by the more modern view of kidnapping [requiring the jury to find that the restraint of the victim had independent significance from some other crime with which the defendant was charged in order for the jury to find him guilty of kidnapping] ․ While this series of cases shows that the merger doctrine was known to the defense bar in Connecticut well before 1989, it also demonstrates that our Supreme Court was steadfast in its adherence to the Chetcuti decision [which rejected the claim that a kidnapping could not be based on restraint that was merely incidental to the commission of another crime].   In the legal climate prevailing in 1989, asking the Supreme Court to abandon Chetcuti must have appeared futile.

Id. At the time of the petitioner's trial in 2005, the legal landscape in the State of Connecticut was still standing as firmly against any challenges to the rule in Chetcuti.   See, State v. Dejesus, 91 Conn.App. 47, 87–88,⁷ 880 A.2d 910 (2005), aff'd in part and reversed in part, 288 Conn. 418, 953 A.2d 45 (2008) (reversing the Appellate Court's decision finding that General Statutes § 53a–92(a)(2)(A) ⁸ void for vagueness and ordering defendant's conviction vacated;  other challenged convictions affirmed on unrelated grounds).   Based on the foregoing, it is this Court's opinion that the decisions rendered in Connecticut courts on this issue prior to the Salamon decision support a finding that the petitioner had “good cause” for not raising this claim at the trial level, because it would have been futile for him to have done so.  Smith v. Warden, supra, Superior Court, Judicial District of Tolland.

The respondent also argues that any failure by the trial court to properly instruct the jury in accordance with Salamon was harmless error.   In essence, this is an argument that the petitioner suffered no prejudice, because there is no reasonable doubt that a properly instructed jury would have returned a guilty verdict on the kidnapping charge.   The Court disagrees with the respondent's analysis of the facts and relevant case law on this issue.

In the Salamon case, where the defendant attacked the victim on a stairwell, dragged her down, and forcibly held her down against her will for more than five minutes, during which he punched her in the face at least once and shoved his fingers in her mouth to keep her from screaming for help, conduct which the court found to be very brief in “contrast to the extended duration of the defendant's restraint of the victim,” the Supreme Court ultimately ruled that, “[w]hether the defendant's conduct constituted a kidnapping, therefore, is a factual question for determination by a properly instructed jury ․ [W]e conclude that the defendant is entitled to a new trial on the charge of kidnapping ․” State v. Salamon, supra, 287 Conn. 550;  see also, State v. Fields, 302 Conn. 236, 239–45, 24 A.3d 1243 (2011).⁹

The present case is not all that dissimilar to the Salamon and Fields cases above.   In the present case, the victim testified that while arguing with the petitioner about their relationship inside of his van, he punched her in the face, pulled her into the rear of the van by her hair, sat on her so she could not move, and proceeded to choke her until she passed out.  (Respondent's Exhibit A, Transcript of State v. Epps, March 31, 2005, Section 1T, pp. 120.)   She came too with the petitioner still sitting on her chest, but he released her and she sat back upon the passenger seat of the van.  (Id.) However, after more talking and arguing about their relationship, she struck the petitioner in the face and, realizing he was angered, tried to escape out the passenger door, upon which the petitioner again pulled her into the back of the van, sat on her, and choked her until she passed out, again.  (Id.) When she awoke, the petitioner was still sitting on her chest, but eventually released her and left the van to “cool off” for a few minutes.  (Id., pp. 121.)   She thought about escaping the van at that time, but the petitioner returned before she did so and, after a brief period of arguing about the status of their relationship, the petitioner poured gasoline from a container he had inside the van into the victim's lap and lit her on fire with a match.   (Id., 122–24.)   Of note, however, is that there is no evidence in the trial record that would allow this court to determine the period of time over which the events in the van took place.   See, State v. Salamon, supra, 287 Conn. 550.   In other words, one cannot tell from the record whether the events in the van spanned ten minutes, an hour, or two hours.   Additionally, the punching of the victim and choking her on two occasions clearly constitute separate criminal acts against the victim,¹⁰ and, although this conduct was not charged by the State, the petitioner likely would be free to argue to the jury that any restraint upon the victim prior to the ultimate assault was merely incidental to these uncharged crimes.   Finally, although the victim did testify that the petitioner stated, “You're never leaving this van” shortly before he poured the gasoline into her lap and lit the match, again, there is no time frame in the record as to these events from which this Court could say that it is beyond a reasonable doubt that a properly instructed jury would have decided that this was actually an independently significant “restraint” upon the victim not merely incidental to the assault which occurred almost immediately thereafter.  Id. Therefore, based on the foregoing, the absence of the Salamon instruction from the jury charge clearly prejudiced the petitioner.  Id. As such, the petitioner is entitled to a new trial on the charge of kidnapping with a properly instructed jury.¹¹  Id.;   Luurtsema v. Commissioner of Correction, 299 Conn. 740, 774, 12 A.3d 817 (2011);  State v. Fields, 302 Conn. 236, 239–45, 24 A.3d 1243 (2011).

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus is GRANTED to the extent that the petitioner's 2005 conviction and sentence for Kidnapping First Degree in violation of General Statutes §§ 53a–92(a)(2)(A) and (C) are vacated and the matter is remanded to the Judicial District of Stamford–Norwalk for criminal division for a retrial on those charges and the establishment of appropriate bond conditions under applicable law and procedures.

If the respondent wishes to appeal this ruling, then counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.   All other necessary appellate forms shall be filed within the time-frames set forth in applicable Practice Book and/or statutory sections.

Hon. John M. Newson

FOOTNOTES

FN1. General Statutes § 53a–59 Assault in the First Degree, provides in pertinent part:  (a) A person is guilty of assault in the first degree when:  ․ (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person ․.  FN1. General Statutes § 53a–59 Assault in the First Degree, provides in pertinent part:  (a) A person is guilty of assault in the first degree when:  ․ (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person ․

FN2. General Statutes § 53a–92 Kidnapping in the First Degree, provides in pertinent part:  (a) 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 ․ (C) terrorize him or a third person..  FN2. General Statutes § 53a–92 Kidnapping in the First Degree, provides in pertinent part:  (a) 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 ․ (C) terrorize him or a third person.

FN3. Although the petitioner testified to a wholly different version of events indicating that the victim had accidentally lit herself on fire, as he is not entitled to any presumption of innocence in a habeas proceeding;  Summerville v. Warden, 229 Conn. 397, 425, 641 A.2d 1365 (1994);  the relevant facts to this proceeding are those from which the jury could reasonably have based their finding of guilt..  FN3. Although the petitioner testified to a wholly different version of events indicating that the victim had accidentally lit herself on fire, as he is not entitled to any presumption of innocence in a habeas proceeding;  Summerville v. Warden, 229 Conn. 397, 425, 641 A.2d 1365 (1994);  the relevant facts to this proceeding are those from which the jury could reasonably have based their finding of guilt.

FN4. State v. Salaman, 287 Conn. 509, 949 A.2d 1092 (2008) and State v. Sansaverino, 287 Conn. 608, 949 A.2d 1156 (2008)—generally standing for the proposition that a defendant is entitled to have the jury instructed that in order to return a finding of guilty to a charge of Kidnapping in the First Degree under General Statutes § 53a–92(a)(2) they must find that the defendant had “intended to restrain the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the [underlying] crime.”  Salamon, supra, 542..  FN4. State v. Salaman, 287 Conn. 509, 949 A.2d 1092 (2008) and State v. Sansaverino, 287 Conn. 608, 949 A.2d 1156 (2008)—generally standing for the proposition that a defendant is entitled to have the jury instructed that in order to return a finding of guilty to a charge of Kidnapping in the First Degree under General Statutes § 53a–92(a)(2) they must find that the defendant had “intended to restrain the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the [underlying] crime.”  Salamon, supra, 542.

FN5. The court specifically classifies Salamon as a “new interpretation” of the kidnapping statute, as opposed to a “corrected interpretation” of what the kidnapping statute had always meant, allowing the matter to be decided on State common-law grounds instead of Federal due process grounds.  Luurtsema, supra, 748–51..  FN5. The court specifically classifies Salamon as a “new interpretation” of the kidnapping statute, as opposed to a “corrected interpretation” of what the kidnapping statute had always meant, allowing the matter to be decided on State common-law grounds instead of Federal due process grounds.  Luurtsema, supra, 748–51.

FN6. Significantly different in Golder was also the fact that after the defendant encountered the victim while committing the burglary, he held her in a “bear hug” while forcing her to move about the home showing him where the valuables were, and that after the taking of the valuables was complete, he moved the victim to a bedroom and hogtied her to the bedposts before leaving the home.  Golder, supra, 127 Conn.App. 184..  FN6. Significantly different in Golder was also the fact that after the defendant encountered the victim while committing the burglary, he held her in a “bear hug” while forcing her to move about the home showing him where the valuables were, and that after the taking of the valuables was complete, he moved the victim to a bedroom and hogtied her to the bedposts before leaving the home.  Golder, supra, 127 Conn.App. 184.

FN7. “The merger doctrine was of judicial origin and was based on an aversion to prosecuting a defendant on a kidnapping charge in order to expose him to the heavier penalty thereby made available, where the period of abduction was brief, the criminal enterprise in its entirety appeared as no more than an offense of robbery or rape, and there was lacking a genuine ‘kidnapping’ flavor ․ Our Supreme Court, however, expressly has rejected the merger doctrine and eschewed the modern majority approach in favor of the traditional one.”  (Citation omitted;  Emphasis added.).  FN7. “The merger doctrine was of judicial origin and was based on an aversion to prosecuting a defendant on a kidnapping charge in order to expose him to the heavier penalty thereby made available, where the period of abduction was brief, the criminal enterprise in its entirety appeared as no more than an offense of robbery or rape, and there was lacking a genuine ‘kidnapping’ flavor ․ Our Supreme Court, however, expressly has rejected the merger doctrine and eschewed the modern majority approach in favor of the traditional one.”  (Citation omitted;  Emphasis added.)

FN8. See Footnote 2..  FN8. See Footnote 2.

FN9. Held that the trial court's failure to give a Salamon instruction was not harmless beyond a reasonable doubt and that defendant was entitled to a new trial on the kidnapping charge in a case where the defendant and another person viciously pistol-whipped the victim inside the victim's own home and, after completing the assault, proceeded to drag the victim outside into a vehicle, from which the victim was able to escape in a moment of confusion and run back into the home.  (Emphasis added.).  FN9. Held that the trial court's failure to give a Salamon instruction was not harmless beyond a reasonable doubt and that defendant was entitled to a new trial on the kidnapping charge in a case where the defendant and another person viciously pistol-whipped the victim inside the victim's own home and, after completing the assault, proceeded to drag the victim outside into a vehicle, from which the victim was able to escape in a moment of confusion and run back into the home.  (Emphasis added.)

FN10. Assault Third Degree, General Statutes § 53a–61, and Reckless Endangerment, General Statutes § 53a–64, quickly come to mind..  FN10. Assault Third Degree, General Statutes § 53a–61, and Reckless Endangerment, General Statutes § 53a–64, quickly come to mind.

FN11. The Court notes that its recent decision in Zollo v. Warden, Judicial District of Tolland, Docket No. CV09–4003283 (Newson, J., July 2, 2012), denying habeas relief on a Salamon claim was factually distinguishable from the present case.   In that case, this Court found that any error from failing to give the Salamon instruction was harmless beyond a reasonable doubt, because the trial evidence reflected that after the petitioner had committed several sexual assaults against the victim, he handcuffed her to a door for approximately 20 minutes while he moved about her house and cleansed the crime scene, then moved her into another room of the house and, before closing the door threatened, “Give me fifteen minutes!,” to allow himself the opportunity to escape the crime scene and to prevent her from seeking immediate assistance.   This Court determined that, even if properly instructed, it was beyond a reasonable doubt that the jury still would have found the petitioner's subsequent restraint upon the liberty of the victim was not merely incidental to the sexual assaults and would have convicted him of the kidnapping charge..  FN11. The Court notes that its recent decision in Zollo v. Warden, Judicial District of Tolland, Docket No. CV09–4003283 (Newson, J., July 2, 2012), denying habeas relief on a Salamon claim was factually distinguishable from the present case.   In that case, this Court found that any error from failing to give the Salamon instruction was harmless beyond a reasonable doubt, because the trial evidence reflected that after the petitioner had committed several sexual assaults against the victim, he handcuffed her to a door for approximately 20 minutes while he moved about her house and cleansed the crime scene, then moved her into another room of the house and, before closing the door threatened, “Give me fifteen minutes!,” to allow himself the opportunity to escape the crime scene and to prevent her from seeking immediate assistance.   This Court determined that, even if properly instructed, it was beyond a reasonable doubt that the jury still would have found the petitioner's subsequent restraint upon the liberty of the victim was not merely incidental to the sexual assaults and would have convicted him of the kidnapping charge.

Newson, John M., J.