175274 v. Warden (2014)

MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT

I. INTRODUCTION

In this matter, both the petitioner and the respondent have filed motions for summary judgment.   For the reasons articulated more fully below, the petitioner's motion for summary judgment is GRANTED and the respondent's motion for summary judgment is DENIED.

II. PROCEDURAL HISTORY

In 1997, the petitioner, Michael Mitchell, was the defendant in a criminal jury trial in the judicial district of New Haven.   The jury, Hadden, J., presiding, convicted the petitioner of the following:  (count 1) unlawful restraint in the first degree, in violation of General Statutes § 53a–95(a);  (count 2) robbery in the second degree, in violation of General Statutes § 53a–135(a)(2);  (count 3) kidnapping in the first degree, in violation of General Statutes § 53a–92(a)(2)(A);  (count 4) assault in the third degree, in violation of General Statutes § 53a–61(a)(1);  (count 5) attempt to commit sexual assault in the first degree, in violation of General Statutes §§ 53a–49(a)(1) and 53a–70(a)(1) and (count 6) sexual assault in the first degree, in violation of General Statutes § 53a–70(a)(1).

On May 29, 1998, the trial court sentenced the petitioner to a total effective sentence of thirty-six years to serve, execution suspended after the service of twenty-eight years.   The petitioner appealed from the judgment of conviction and the Appellate Court affirmed the convictions.  State v. Mitchell, 59 Conn.App. 523–25, 757 A.2d 1137 (2000), cert. denied, 256 Conn. 901, 772 A.2d 598 (2001).

Following his unsuccessful direct appeal, the petitioner initiated his first habeas action alleging ineffective assistance of his trial counsel.   The habeas court denied his petition and the Appellate Court affirmed the judgment of the habeas court denying the petition.  Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 760, 771, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008).

The petitioner then initiated a second habeas action.   On August 29, 2013, counsel for the petitioner filed a second amended petition for writ of habeas corpus (second amended petition) which is the operative petition in this case.   In his second amended petition, the petitioner alleges in count one that he was deprived of his right to due process under the federal and state constitutions.   Stated succinctly, the petitioner claims that his kidnapping conviction is illegal under State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and its progeny because the restraint at issue was merely incidental to another offense and, therefore, was insufficient to support the kidnapping conviction.   The respondent's return denies this claim.

On October 7, 2013, both the petitioner and the respondent filed their respective motions for summary judgment supported by memoranda of law.   Each party filed written objections supported by memoranda of law to the other party's motion for summary judgment.   The parties also filed written replies to each other's objections.   On December 10, 2013, this court heard argument on the cross motions for summary judgment.

III. LAW AND DISCUSSION

“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.’  “ 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).  “A directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Emphasis in original.)  Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995).

In this case, as the factual underlayment for their respective summary judgment motions, the parties have submitted the transcripts from the underlying criminal trial as well as the long form information.   See Petitioner's Exhibits (PE 1) and Joint Exhibits (JE 4)-(JE 6).¹  The parties do not disagree on the facts.

The following relevant facts reasonably could have been found by the jury:

On February 6, 1996, the [petitioner] entered the victim's boutique in New Haven.   He showed the victim his wedding band and told her that he was looking for a Valentine's Day gift for his wife.   Several customers entered and left the store while the victim showed the [petitioner] some pieces of jewelry.   When the store was empty, the [petitioner] grabbed the victim's arm and told her that he was there to rob her.   Noticing a pointed object protruding from the [petitioner]'s jacket pocket, the victim gave him money from a desk drawer.   The [petitioner] then pushed her into the dressing room where he sexually assaulted her.   He stopped after the victim had convinced him that she had HIV. He then went behind the desk, threw her purse at her and ordered her to dump everything out.   He rifled through its contents and took money from another purse containing business proceeds.   He then wiped the counters and the desk with a scarf from the store and, after the victim pleaded for her life, he left.   The victim immediately called the police and later identified the [petitioner] as the perpetrator.

State v. Mitchell, supra, 59 Conn.App. 523–25.

The transcript of the victim's testimony, which the parties submitted as a joint exhibit in the instant matter, provides additionally relevant facts for this court's consideration.   In her testimony, the victim explained that her boutique was small, with a jewelry showcase on the left, when one entered from the street into the store, as well as racks of clothing.   On the right was a wall, and in front of the wall was a desk for personal use.   In the back of the store was a small, single dressing room about three to four feet wide.

Within seconds after the petitioner initially grabbed the victim and told her he was there to rob her, he again grabbed her arm, told her to get going and pushed her away from the desk in the direction of the dressing room.   The victim asked the petitioner what he wanted and what he was going to do with her, to which he replied “you know, get going.”   The petitioner, while holding her arm, pushed the victim toward and then into the dressing room.   The petitioner then reached under her dress and in one motion pulled down her clothes, slip and underclothes.   The victim's back was facing the petitioner, whose position prevented her from exiting the dressing room.   The victim was five feet, two inches tall;  the petitioner was at least five to six inches taller.

According to the victim, the petitioner then had his penis out and started thrusting it between her legs, toward her vagina.   The victim did not cooperate, spun around, told the petitioner that she was having her period and that she had a tampon in place.   The petitioner then told her to pull out the tampon, after which he put his fingers up into the victim's vagina and tried to pull out the tampon, but was unable to locate it.   The petitioner then instructed the victim, while holding and squeezing her arm, to remove the tampon.   The victim removed the tampon and threw it on the floor and, in her effort to be uncooperative, spun around and faced the petitioner.   The petitioner then struck the victim a total of three times in her face, trying to get her to turn around and not face him.   After the third strike, the petitioner made a fist with one of his hands and threatened to punch the victim in her face.   The victim then said that she had been exposed to HIV while working as a nurse at the hospital, which accomplished her goal of getting the petitioner to stop the sexual assault.

The victim estimated that from the time the petitioner had notified her that he was there to rob her to when he left the store was approximately forty minutes.   She did not testify regarding how much of that forty minutes it took for the sexual assault to occur.

Based on the above facts, the state alleged, in pertinent part, in count three of its long form information that the petitioner “on or about the 6th day of February 1996, at approximately 5:30 p.m., at or near the location known as 1219 Chapel Street, ․ abducted another person and restrained that person with the intent either to inflict physical injury upon her or to violate or abuse her sexually, said conduct being in violation of Section 53a–92(a)(2)(A) of the Connecticut General Statutes.”   PE1, p. 1.

The trial court's jury charge indicated that “[t]he third count is the kidnapping in the first degree and that relates to what the state claims happened when the [petitioner] allegedly forced [the victim] to go back into the rear room of the retail establishment.”   JE5, p. 94.  “The state claims that this crime was committed when the [petitioner] forced [the victim] to go into the back room of the store where he had the intention to injure her or to sexually assault her.

“In order for you to find the [petitioner] guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

“One, that the [petitioner] abducted the victim.   Two, that the [petitioner] unlawfully restrained the person he abducted.   And, three, that he did so with the intent to inflict physical injury on the victim or violate or abuse her sexually.”   JE5, pp. 104–07.

Nearly eleven years after the petitioner's criminal trial, the Supreme Court espoused a new interpretation of the kidnapping statute.  State v. Salamon, supra, 287 Conn. 542.   In Salamon, the 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.”  Id.

In examining the kidnapping statute, the Court determined that “[o]ur legislature ․ intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim.”  Id., 546–47.   The Court further explained that “[w]hether 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.   Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury.”  Id., 547–48.

The Court stated that a trial court must instruct the jury that in making this factual determination it should consider various relevant factors, including “the nature and duration of the victim's movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant's risk of detection and whether the restraint created a significant danger or increased the victim's risk of harm independent of that posed by the separate offense.”  Id.

Shortly after the Salamon decision, the Supreme Court decided Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011).   In Luurtsema, the Supreme Court held that inmates will be presumptively entitled to the benefit of the Court's new interpretation pursuant to Salamon on collateral review.  Id., 760.

The appropriate remedy for a trial court's failure to give a Salamon instruction, when such an instruction is warranted,² is reversal of the kidnapping conviction and remand to the trial court for a new trial.  State v. DeJesus, 288 Conn. 418, 429, 953 A.2d 45 (2008).   The failure to give a Salamon instruction, however, is not reversible error per se;  it may be harmless depending on the facts of a particular case.  State v. Kitchens, 299 Conn. 447, 458, 10 A.3d 942 (2011).

“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 ․ [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.”  State v. Hampton, 293 Conn. 435, 462–63, 988 A.2d 167 (2009).   “The test for determining whether a trial court's constitutionally defective jury charge was harmless, however, is not whether a jury likely would return a guilty verdict if properly instructed;  rather, the test is whether there is a reasonable possibility that a properly instructed jury would reach a different result.”  State v. Flores, 301 Conn. 77, 87, 17 A.3d 1025 (2011).

Here, the petitioner alleges that summary judgment should be granted in his favor because the underlying facts show that the restraint at issue was merely incidental to the other charged offenses.   Therefore, he contends, the facts were insufficient to support the kidnapping conviction.   As a result, he argues that the trial court's failure to give a Salamon kidnapping instruction was not harmless beyond a reasonable doubt.

Conversely, the respondent argues that the petitioner's kidnapping conviction is proper because the restraint at issue was not merely incidental to or necessary for the commission of the additional offenses.   Specifically, the respondent alleges that the underlying facts show that the kidnapping was an act distinct from additional offenses.   Accordingly, the respondent argues that the lack of a Salamon instruction was harmless beyond a reasonable doubt and, therefore, summary judgment should be granted in its favor.   The respondent does not dispute that the facts of this case warranted a Salamon instruction or that the petitioner has properly raised this claim on collateral review.

After reviewing the facts in this case, this court concludes that the lack of a Salamon instruction was not harmless beyond a reasonable doubt.   In other words, a properly instructed jury reasonably could conclude that the restraint of the victim was incidental to the commission of the additional offenses.   In reaching this conclusion it is helpful to examine some of the cases in which the absence of a Salamon instruction has been deemed harmless versus those in which the absence of such an instruction has been deemed harmful.

The first case in which the Supreme Court deemed the absence of a Salamon instruction harmless is State v. Hampton, supra, 293 Conn. 435.   In Hampton, the defendant and a friend of his, Mitchell, kidnapped the victim and drove around Hartford and East Hartford with her for well over three hours before the defendant sexually assaulted and shot the victim.   Specifically, “between the time when the defendant and Mitchell picked up the victim in East Hartford [at 1:30 a.m.,] and when Mitchell parked the car behind a gas station in Hartford and the sexual assault and the shooting of the victim occurred, the victim had been:  (1) driven to a restaurant in downtown Hartford;  (2) angrily questioned in the car about the whereabouts of her brother;  (3) driven to her grandfather's house in Hartford;  (4) driven to the home of Mitchell's mother in Hartford;  and (5) driven to a nearby apartment complex.

“There is no question that the sexual assault and the attempt to commit murder of the victim did not occur until after Mitchell had driven himself, the defendant and the victim from the apartment complex to the closed gas station in Hartford at some point after 4:30 a.m․  The passage of this substantial period of time, which was uncontested by the defendant at trial, clearly shows the defendant's intent to prevent the victim's liberation for a longer period of time or to a greater degree than that necessary to commit the subsequent crimes.   His restraint of the victim was not incidental to any additional offenses.   Accordingly, [the Supreme Court] conclude[d] that the trial court's failure to instruct the jury in accordance with [its] opinion in Salamon constitutes harmless impropriety.”  Id., 463–64.

Subsequent cases have relied on Hampton to conclude that the absence of a Salamon instruction was harmless error;  State v. Jordan, 129 Conn.App. 215, 222–23, 19 A.3d 241, cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011) (even though assaultive behavior spanned entire forty-five-minute duration of victims' confinement, evidence showed that when defendant was not assaulting victims he controlled their movement, i.e., forcing them to clean blood off the walls, and prevented them from leaving;  court ruled defendant restrained victims to a greater degree than necessary to commit the assaults);  State v. Strong, 122 Conn.App. 131, 143, 999 A.2d 765, cert. denied, 298 Conn. 907, 3 A.3d 73 (2010) (defendant's prolonged restraint of victim while driving for more than one hour from one town to another not merely incidental to threats made prior to the restraint);  and State v. Nelson, 118 Conn.App. 831, 860–62, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010) (although kidnapping offenses inherently related to defendant's assaultive conduct, harmless error when defendant completed assault and then for several hours drove victim to several locations).

Juxtaposed with the foregoing cases, where the absence of a Salamon instruction was found to be harmless error, are cases in which the kidnapping conviction was reversed and remanded to the criminal court for a new trial.   Primary among these cases is State v. Thompson, 118 Conn.App. 140, 983 A.2d 20 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010).

In Thompson, the defendant approached and entered the victim's car from the passenger side without invitation.   The defendant slapped her, ordered her to pull over, removed the keys from the ignition and told her to get out of the car.   Upon exiting the car, the victim attempted to escape, but the defendant grabbed her and dragged her to the side of a nearby building.   The defendant ordered the victim to remove her clothes and she complied after he punched her several times in the face.   The defendant then sexually assaulted the victim behind the building.   The entire episode lasted fifteen to twenty minutes.   It was not clear from the record how long the sexual assault lasted.

Following the sexual assault, the defendant led the victim back to the car, forced her into the passenger seat and drove along several streets.   When the car stopped at a traffic signal approximately one block away from the victim's apartment, she escaped.

The Thompson Court first noted that, because the state had charged the defendant with kidnapping pursuant to § 53a–92(a)(2)(A), it could not consider his conduct following the sexual assault.  Id., 160.   The Court pointed out that § 53a–92(a)(2) 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 ․” Id. Then, the Court highlighted the fact that there was no evidence that the defendant intended to “inflict physical injury upon [the victim] or violate or abuse [her] sexually” after the sexual assault.   As a result, “even though the defendant forced the victim back into the car after the sexual assault occurred and drove her around until she finally escaped, the court's analysis is limited to the defendant's conduct up to the completion of the sexual assault.”  Id.

The Court held that it was “unable to conclude that the evidence ․ does not reasonably support a finding that the defendant's restraint of the victim was or was not so inextricably linked to the underlying crime itself.”  Id., 162.   Consequently, the court stated that “[l]imited by the temporal scope of our review, we cannot conclude that, as a matter of law, the defendant's restraint of the victim prior to the sexual assault was not merely incidental to the sexual assault itself.”  Id.

Other cases in which our reviewing courts have determined that the absence of a Salamon instruction was harmful include:  State v. Flores, supra, 301 Conn. 89 (in under twenty minutes, defendant broke into victim's home, awoke victim, searched her bedroom for valuables then left, the court ruled “[b]ecause the crime of robbery necessarily entails the use or threatened use of immediate physical force, at what point the force used to commit the robbery becomes so excessive as to have independent criminal significance is a quintessential question of fact for determination by the jury”);  State v. Gary, 120 Conn.App. 592, 611, 992 A.2d 1178, cert. denied, 297 Conn. 910, 995 A.2d 637 (2010) (after drinking alcohol with victim, defendant sexually assaulted victim in her bedroom, as assault was occurring, victim escaped when the police entered apartment responding to victim's screams;  court ruled “defendant was ․ convicted of sexual assaults close in temporal proximity to the defendant's restraint of the victim”;  “evidence reasonably supports a finding that the restraint merely was incidental to the commission of other crimes”).

Before applying the above mentioned law to the facts of this case, the respondent has highlighted and relies on a recent decision from our Supreme Court in support of its motion for summary judgment that warrants discussion.   Specifically, the respondent contends that the instant matter is factual analogous to and controlled by State v. Ward, 306 Conn. 718, 738–39, 51 A.3d 970 (2012).

In Ward, the defendant approached the victim from behind while she was at the kitchen sink, grabbed a knife sharpening tool from a butcher block on the kitchen counter, wrapped his arms around her and held the knife sharpening tool to her neck.  Id., 723.   The defendant threatened that if she did not follow his instructions, he would kill her.  Id. Although the defendant was twice the victim's size and held her tightly so that she could not escape, the defendant continued to hold the knife sharpening tool against her neck as he dragged her from the kitchen to the hallway and from the hallway to the master bedroom.  Id. Once in the master bedroom, the defendant pushed the victim onto the bed.  Id., 724.   He later pulled her from the bed to the floor.   Id. The defendant laid on top of the victim with the knife sharpening tool, stuck his tongue in her mouth and tried to kiss her before he took his pants off, rubbed his penis against her vagina and ejaculated on her stomach.  Id. Although the victim estimated that she was in the bedroom for ten to fifteen minutes, she believed that the entire sexual assault lasted only two minutes.   Id.

The trial court issued instructions to the jury in accordance with the principles set forth in Salamon.  Id., 726.   The jury convicted the defendant of kidnapping and sexual assault.  Id., 727.   The defendant filed a motion for judgment of acquittal with respect to the kidnapping charge.   Id. The trial court granted the motion and vacated the kidnapping conviction.  Id., 728.   The trial court concluded, in reliance on State v. Salamon, supra, 287 Conn. at 509, that “no reasonable jury could have found under [the facts adduced at trial] that the defendant kidnapped the victim as defined by our statutes.”  Id., 725–26.

The Supreme Court reversed the trial court's ruling granting the motion for judgment of acquittal.   After expressly noting that Ward was “a close case,” the Court determined that the jury could have found that given the size disparity between the victim and the defendant that he could have sexually assaulted her in the kitchen.  Id., 736.   The Court further found it significant that the defendant not only moved the victim from the kitchen to the bedroom, but that he also moved her from the bed to the floor.  Id. The jury could have concluded that the defendant could have sexually assaulted her on the bed but instead he moved her from the bed to the floor and only then committed the sexual assault.  Id., 737.

The Court stated that “[i]n short, although the defendant did not confine the victim for a lengthy period of time or move her a significant distance, the facts and circumstances of the present case, considered as a whole, support the jury's determination that the restraint of the victim was not merely incidental to or an inherent part of the sexual assault ․” (Footnote omitted.)  Id., 738.   Therefore, “[b]ecause the jury reasonably could have concluded that the evidence adduced at trial established that the defendant was guilty of kidnapping in the first degree beyond a reasonable doubt, the trial court improperly granted the defendant's motion for judgment of acquittal [.]  ․” Id., 741.

Turning now specifically to the facts of this case and the applicable law, it is clear that the absence of the Salamon instruction was harmful.   Here, after the defendant robbed the victim of her money in her personal desk, he grabbed her arm and forced her to the back of the store into the dressing room.   The petitioner, who was significantly larger than the victim, positioned his body in such a way as to both prevent the victim's escape from the dressing room and then sexually assaulted her.   The petitioner struck the victim in the face three times after she resisted him.   After the victim was able to get the petitioner to abandon his efforts to continue the sexual assault, the petitioner forced the victim back to the desk and robbed her of additional money he found in the desk.

The long form information charged the petitioner with kidnapping in the first degree, and alleged that the petitioner “․ abduct[ed] another person and restrained that person with the intent either to inflict physical injury upon her or to violate or abuse her sexually ․” PE1, pg. 1. The court's jury charge indicated that “[t]he third count is the kidnapping in the first degree and that relates to what the state claims happened when the [petitioner] allegedly forced [the victim] to go back into the rear room of the retail establishment.”   JE5, p. 94.  “The state claim[ed] that this crime was committed when the [petitioner] forced [the victim] to go into the back room of the store where he had the intention to injure her or to sexually assault her.”  Id., p. 105.

Thus, here, as in State v. Thompson, supra, 118 Conn.App. 160, the specific charge under § 53a–92(a)(2)(A) and the information limits and narrows the time frame at issue.   Stated somewhat differently, the petitioner's conduct prior to grabbing the victim's arm and propelling her to the back of the store is not relevant to this court's analysis, nor is his conduct after the sexual assault perpetrated in the dressing room relevant.  Id.

Any limiting and narrowing of the time frame at issue is not, however, the sole or even primary factor to consider when evaluating the particular facts and circumstances pertaining to a kidnapping charge.   It is beyond dispute that there is a “ ‘long-standing rule that no minimum period of restraint or degree of movement is necessary’ for the crime of kidnapping.  State v. Sanseverino, 287 Conn. 608, 623, 949 A.2d 1156 (2008).   Instead, ‘[t]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts ․’ (Internal quotation marks omitted.)  State v. Salamon, supra, 287 Conn. 546.”  State v. Thompson, supra, 118 Conn.App. 161–62.

Although no minimum period of restraint or degree of movement is necessary for the crime of kidnapping, an important facet of cases where the trial court has failed to give a Salamon instruction and that impropriety on appellate review has been deemed harmless error is that longer periods of restraint or greater degrees of movement demarcate separate offenses.   See State v. Hampton, supra, 293 Conn. 463–64 (defendant confined victim in a car and drove her around for approximately three hours before committing sexual assault and attempted murder);  State v. Jordan, supra, 129 Conn.App. 222–23 (evidence showed the defendant restrained the victims to a greater degree than necessary to commit the assaults even though assaultive behavior spanned entire forty-five-minute duration of victims' confinement);  State v. Strong, supra, 122 Conn.App. 143 (defendant's prolonged restraint of victim while driving for more than one hour from one town to another not merely incidental to threats made prior to the restraint);  and State v. Nelson, supra, 118 Conn.App. 860–62 (harmless error when defendant completed assault and then for several hours drove victim to several locations).   Thus, as these cases demonstrate, multiple offenses are more readily distinguishable—and, consequently, more likely to render the absence of a Salamon instruction harmless—when the offenses are separated by greater time spans, or by more movement or restriction of movement.

Conversely, multiple offenses occurring in a much shorter or more compressed time span make the same determination more difficult and, therefore, more likely to necessitate submission to a jury for it to make its factual determinations regarding whether the restraint is merely incidental to another, separate crime.   In those scenarios, where kidnapping and multiple offenses occur closer in time to one another, it becomes more difficult to distinguish the confinement or restraint associated with the kidnapping from another substantive crime.   The failure to give a proper Salamon instruction in those scenarios is more likely to result in harmful error precisely because of the difficulty in determining whether each crime has independent criminal significance.   See State v. Thompson, supra, 118 Conn.App. 162 (within fifteen minutes defendant entered victim's car, pushed her behind a building and sexually assaulted her);  State v. Flores, supra, 301 Conn. 89 (defendant's robbery of victim in her bedroom lasted between five and twenty minutes);  State v. Gary, supra, 120 Conn.App. 611 (defendant convicted of multiple sexual assaults and an attempted sexual assault that were “in close temporal proximity to the defendant's restraint of the victim”;  thus court determined evidence reasonably supports a finding that the restraint merely was incidental to the commission of other crimes, namely, sexual assaults and attempted sexual assault;  lack of Salamon instruction harmful error).

The instant case resembles Thompson, Flores, and Gary, rather than Hampton, Jordan, Strong and Nelson, in that the assault and sexual assault occurred in close temporal proximity to the alleged kidnapping.   The defendant here grabbed the victim by the arm at her desk in a small store, forced her to go to the rear dressing room, a short distance away, and then immediately began his sexual assault and then assault on the victim.   These facts, like those in Thompson, Flores, and Gary, present a scenario where multiple offenses occurred close in time to one another making it difficult to conclude that the defendant's restraint of the victim was not merely incidental to the additional offenses, particularly the sexual assault.   See e.g., State v. Thompson, supra, 118 Conn.App. 144–45, 162–63 (where victim forced from car to behind a nearby building, then assaulted and sexually assaulted behind building, court could not conclude that restraint of victim prior to sexual assault was not merely incidental sexual assault).

Indeed, the evidence presented to the jury here rationally could lead to a contrary finding that the petitioner's restraint of the victim had been inherent in, or merely incidental to, the additionally alleged crimes.   Therefore, this court is unable to conclude, based on its review of the underlying facts presented to the jury, that the absence of a Salamon instruction was harmless beyond a reasonable doubt nor that the impropriety did not contribute to the jury's guilty verdict on the kidnapping charge.

Finally, a few words about Ward. Contrary to the respondent's contentions, Ward does not control the instant matter.   First, the most significant distinction between Ward and this case is that, in Ward, the trial court gave the jury a Salamon instruction.   By contrast, in the present matter, the trial court did not give the jury a Salamon instruction and, therefore, the jury did not properly assess whether or not the movement or restraint used by the petitioner against the victim was merely incidental to the additionally alleged offenses.

Second, even with a Salamon instruction, the Supreme Court considered the factual circumstances in Ward a “close case” and determined that the jury reasonably could have found that the defendant's confinement or movement of the victim from the kitchen to the bedroom, and then to the bedroom floor, was not merely incidental to the sexual assault.   If Ward was a close case, then the facts here, where the movement was the short distance from the desk to the dressing room before the sexual assault occurred, surely present a close case regarding the factual determination of whether the movement and restraint were incidental to the sexual assault.

Furthermore, although the Ward Court determined that the evidence supported the jury's verdict, that the kidnapping was not merely incident to the sexual assault, that Court's analysis was not focused on whether the absence of the Salamon instruction was harmless, but rather on whether, given the presence of the instruction, the jury reasonably could have concluded as it did.   Thus, even if this court were to agree with the respondent that the instant case is factual similar to Ward and that a properly instructed jury reasonably could have concluded that the defendant's restraint of the victim lasted for a period of time that was longer than necessary for the commission of the sexual assault, the respondent has failed to establish that a properly instructed jury reasonably could not have reached a contrary conclusion.

Consequently, when, as here, the evidence reasonably supports a finding either:  (1) that the restraint was not merely incidental to the commission of some other, separate crime;  or (2) that the restraint was merely incidental to another separate crime, the ultimate factual determination must be made by a properly instructed jury.   Thus, this court cannot conclude that, as a matter of law, the defendant's restraint of the victim prior to the sexual assault was not merely incidental to the sexual assault itself.   See State v. Thompson, 118 Conn.App. 162.

IV. CONCLUSION

For the foregoing reasons, the petitioner's motion for summary judgment is granted and the respondent's motion for summary judgment is denied.   Judgment shall enter granting the petition for a writ of habeas corpus.   The petitioner's conviction and sentence for kidnapping in the first degree in docket number CR98–425498, judicial district of New Haven, are vacated and the matter is referred to the criminal trial court for further proceedings in accordance with the law.   The judgment of this court is subject to Rules of Appellate Procedure § 61–11.

It is so ordered.

Mullins, J.

Superior Court

FOOTNOTES

FN1. For ease of reference, the court will use the “PE” and “JE” labels that the parties have used to identify their exhibits.   Also, the court will not consider the victim's testimony presented during the suppression hearing (i.e., JE3), as the jury's determinations cannot have been based on such testimony..  FN1. For ease of reference, the court will use the “PE” and “JE” labels that the parties have used to identify their exhibits.   Also, the court will not consider the victim's testimony presented during the suppression hearing (i.e., JE3), as the jury's determinations cannot have been based on such testimony.

FN2. See, e.g., State v. Golder, 127 Conn.App. 181, 191, 14 A.3d 399, cert. denied, 301 Conn. 912, 19 A.3d 180 (2011) (“no factual basis in the record to warrant a jury instruction based on Salamon ”)..  FN2. See, e.g., State v. Golder, 127 Conn.App. 181, 191, 14 A.3d 399, cert. denied, 301 Conn. 912, 19 A.3d 180 (2011) (“no factual basis in the record to warrant a jury instruction based on Salamon ”).

Mullins, Raheem, J.