Eric Molnar v. Commissioner (2012)

MEMORANDUM OF DECISION RE CROSS MOTIONS FOR SUMMARY JUDGMENT (# 114.00 and # 115.00)

I. Procedural History

The petitioner was the defendant in matters pending before the Judicial District of New Britain.   The procedural history and facts of the underlying case, taken from the Appellate Court decision, are as follows:

The defendant [was convicted] after a jury trial, of two counts of kidnapping in the first degree in violation of General Statutes § 53a–92(a)(2)(A) and (C), 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–70(b) ․

The jury reasonably could have found the following facts.   At all times relevant to this proceeding, the victim, S, and the defendant were married.   They separated in February 2000, and divorce proceedings commenced.   While the divorce was pending, the defendant and the victim had agreed that the victim would reside in the marital home and the defendant would stay at his parents' house.

On May 9, 2001, the defendant 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 defendant'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 defendant 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 defendant 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 defendant 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 defendant led her upstairs to the bathroom where he watched her use the toilet, and then performed cunnilingus on her.

The defendant attempted to tie the victim to the toilet, but she was able to run into the living room where the defendant tackled her on the couch.   When she ran to the porch and attempted to open a storm door, the defendant caught her, and choked her until she lost consciousness and fell through the glass storm door.

Next, the defendant brought the victim to the bedroom 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.   Subsequently, the defendant returned and pulled the telephone from the wall.

Benjamin Doerfler, a police officer with the Southington police department, arrived at the victims residence at 6:55 p.m. in response to the 911 call.   He entered the residence through the porch door, and noticed broken 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 defendant on top of the victim on the bed.

(Footnote omitted.)  State v. Molnar, 79 Conn.App. 91, 93–95, 829 A.2d 439, appeal granted in part, 266 Conn. 917, 833 A.2d 468 (2003), affirmed by sub nomine, State v. Eric M., 271 Conn. 641, 858 A.2d 767 (2004).

The petitioner commenced the present action by filing a petition for writ of habeas corpus on December 14, 2010.¹  After the appearance of counsel, a single-count amended petition was filed on June 1, 2012 claiming that the petitioner was deprived his constitutional due process right to a fair trial ² because the jury was not given a Salamon kidnapping instruction.³  Subsequently, the petitioner (# 114.00) and respondent (# 115.00) each filed motions for summary judgment, and the petitioner also filed a formal objection to the respondent's motion (# 117.00).   The motions were argued before the court on August 6, 2012, where the parties stipulated that the only issue to be decided was whether, on the record before the trial court, the petitioner was entitled to habeas relief and a new trial on the kidnapping counts as a result of the trial court's failure to give the Salamon instruction.

II. Law and Discussion

In a habeas corpus matter, “[a]t any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered 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.”  Practice Book § 23–37;  See, also Practice Book § 17–44.   Summary judgment may be granted 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.  Lawrence v. Commissioner of Correction, 125 Conn.App. 759, 762, 9 A.2d 772 (2010), cert. denied, 300 Conn. 936, 17 A.3d 474 (2011).   Said another way, summary judgment “is appropriate only if a fair and reasonable person could conclude only one way ․ To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․” (Alterations in original;  citations omitted;  quotation marks omitted.)  Dugan v. Mobile Medical Testing Ser., 265 Conn. 791, 815, 830 A.2d 752 (2003).  “A material fact is a fact that will make a difference in the result of the case.”  Farrel v. Twenty–First Century Ins. Co., 118 Conn.App. 757, 759, 985 A.2d 1076 (2010), aff'd, 301 Conn. 657, 21 A.3d 816 (2011).

In the present case, the relevant facts are those contained in the trial record and, in a Salamon claim, the decision for this court to make is a legal one—whether the trial court's failure to provide the instruction constituted “harmless error.”   In the case of State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), 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 “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 that which is necessary to commit the other crime.”  Id., 542.  “[W]hen an appellate court provides a new interpretation of a substantive criminal statute, and 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.   We decline, however ․ to adopt a per se rule in favor of full retroactivity.”  Luurtsema v. Commissioner of Correction, 299 Conn. 740, 760, 12 A.3d 817 (2011).  “We emphasize that in the Salamon context in particular, any exceptions to the general presumption in favor of full retroactivity are likely to be few and far between.”  Id., 764.   Habeas courts reviewing Salamon claims on collateral attack may 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 Salamon was harmless.”  (Emphasis added.)  Id., 769–70 (citing State v. Hampton, 293 Conn. 435, 463–64, 978 A.2d 1089 (2009)).⁴

In support of his claim that the court's failure to give a Salamon instruction was not harmless, the petitioner relies heavily on the fact that he submitted approximately a dozen video tapes at trial in support of his defense of consent, all of which depicted consensual incidents of bondage between he and the victim prior to the date of the incidents in question.   The essence of the petitioner's claim, therefore, is that evidence of the victim's prior consent to bondage, when coupled with a proper Salamon jury instruction, should lead this court to find that there exists a reasonable doubt as to whether a properly instructed jury would have convicted him of kidnapping.   The petitioner's reliance on this theory fails for two reasons.   First, having been convicted after a jury trial, the petitioner no longer enjoys the presumption of innocence, nor is he even entitled to the benefit of the doubt as to those facts in the record that purportedly support his defense theories.   See, Summerville v. Warden, 229 Conn. 397, 425, 641 A.2d 1365 (1994).   Second, the fact that the petitioner was convicted on every count presented to the jury, including sexual assault in a spousal relationship and assault in the second degree, confirms that the jury wholly rejected the petitioner's claim that any portion of this incident was consensual.   See, id.

The respondent asserts that, even if properly instructed, there is ample evidence in the trial record to support the jury's finding of guilt on the two kidnapping counts and, therefore, any error by the trial court in not giving the Salamon instruction was harmless beyond a reasonable doubt.   Having reviewed the record before the trial court in the present case, the court agrees with the respondent that any failure of the trial court to give a Salamon instruction was harmless beyond a reasonable doubt.

A few additional details not specifically related in the appellate court decision are necessary to flesh out the court's decision.   The evidence at trial shows that the incident began when the petitioner accosted the victim in the basement shortly after she arrived home at 2:00 pm ⁵ and continued until the police arrived at some time near 7:00 pm,⁶ 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.” ⁷  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 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, towards the end of the incident, having been temporarily released from all restraints except the 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 chocked 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.

In all, given the nearly five-hour duration of this incident and the extreme and substantial restraints used by the petitioner, when compared to the “few minutes” of that time related to the sexual assault, any failure to give a Salamon instruction to the jury was harmless beyond a reasonable doubt because, even had the jury been properly instructed, there is no reason to doubt that they would have found that the restraints imposed upon the victim were not merely incidental to any of his other crimes and convicted him of the kidnapping charges.  Luurtsema v. Commissioner of Correction, supra, 299 Conn. 769–70, 12 A.

III. Conclusion

Based on the foregoing, the respondent's motion for summary judgment (# 115.00) is GRANTED.   Judgment shall enter in favor of the respondent and the petition for writ of habeas corpus is DENIED.   The petitioner's motion for summary judgment (# 114.00) is DENIED and his objection to the respondent's motion (# 117.00) is OVERRULED.

If the petitioner 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. The petitioner had filed a previous petition under another docket number on August 9, 2010 that was ultimately consolidated with the present matter..  FN1. The petitioner had filed a previous petition under another docket number on August 9, 2010 that was ultimately consolidated with the present matter.

FN2. Although the petition fails to specifically allege the legal grounds upon which the petitioner claims he is entitled to relief, it is clear from the arguments made by both parties and the briefs submitted that the petitioner's claim relates to his due process right to a fair trial..  FN2. Although the petition fails to specifically allege the legal grounds upon which the petitioner claims he is entitled to relief, it is clear from the arguments made by both parties and the briefs submitted that the petitioner's claim relates to his due process right to a fair trial.

FN3. In the case of State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), 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 “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 that which is necessary to commit the other crime.”  Id., 542..  FN3. In the case of State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), 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 “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 that which is necessary to commit the other crime.”  Id., 542.

FN4. “It is well settled that an instructional impropriety that is constitutional in nature is harmful beyond a reasonable doubt, and, thus a reversible impropriety, “when it is shown that it is reasonably possible ․ that the jury [was] misled ․ In other words, the 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;  quotation marks omitted.).  FN4. “It is well settled that an instructional impropriety that is constitutional in nature is harmful beyond a reasonable doubt, and, thus a reversible impropriety, “when it is shown that it is reasonably possible ․ that the jury [was] misled ․ In other words, the 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;  quotation marks omitted.)

FN5. Petitioner's Exhibit 1, CD–ROM of Transcripts, File State v. Molnar, 11–15–01, pp. 84..  FN5. Petitioner's Exhibit 1, CD–ROM of Transcripts, File State v. Molnar, 11–15–01, pp. 84.

FN6. Exhibit 1, CD–ROM of Transcripts, File State v. Molnar, 11–15–01, pp. 44 (police dispatcher testifying as to time the 911 call was received by the police)..  FN6. Exhibit 1, CD–ROM of Transcripts, File State v. Molnar, 11–15–01, pp. 44 (police dispatcher testifying as to time the 911 call was received by the police).

FN7. Petitioner's Exhibit 1, CD–ROM of Transcripts, File State v. Molnar, 11–15–01, pp. 94, ln. 9..  FN7. Petitioner's Exhibit 1, CD–ROM of Transcripts, File State v. Molnar, 11–15–01, pp. 94, ln. 9.

Newson, John M., J.