Opinion
CV124004393S
06-23-2016
Abin Britton (Inmate #257240) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Stanley T. Fuger, Jr., Senior Judge
The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus, filed on October 21, 2011, and which was amended several times by assigned counsel. The second revised amended petition, filed with the court's permission on March 24, 2016, raises claims in three counts: (1) ineffective assistance by trial counsel; (2) ineffective assistance by former habeas counsel; and (3) that the petitioner received an unfair trial as a result of a defective jury instruction. As relief the petitioner requests, inter alia, that the habeas court vacate his conviction and sentence and remand the matter back to the criminal court for further proceedings according to law. The respondent's return, filed in response to the revised amended petition dated August 27, 2015, which the respondent requested to be accepted as the operative return, denies the petitioner's claim that he is entitled to habeas corpus relief and asserts affirmative defenses to counts one and three. The petitioner filed a reply denying these defenses.
The matter proceeded to a trial on the merits on April 6, 2016. The petitioner presented the testimonies of Attorneys Fred DiCaprio, Kevin Barrs and Christopher Duby, Investigator Ligia Werner, Inspector Kenneth Edwards, Jr., Detectives Phillip Fazzino James McGlynn, as well as testifying himself. Numerous documents were entered into evidence, primarily consisting of criminal and habeas trial transcripts, copies of court documents and statements given to the police. Both parties filed post-trial briefs.
For the reasons articulated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
CRIMINAL CONVICTION AND POST-CONVICTION PROCEEDINGS
In docket number CR99-0248998, judicial district of New London, the petitioner was convicted " after a jury trial, of one count of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) and (B), and one count of robbery in the first degree in violation of General Statutes § 53a-134(a)(1). The [petitioner] was acquitted of charges of capital felony, murder and felony murder." State v. Britton, 283 Conn. 598, 600, 929 A.2d 312 (2007).
The Supreme Court's decision on the petitioner's direct appeal summarized the following facts as reasonably found by the jury. " The victim visited his parents at their boat located in the Essex Marina at approximately 11 p.m. on August 22, 1998, the night he later was killed. He was accompanied by two female friends, and after a short visit, the victim told his parents that he and his friends were going to a nearby bar called the Black Seal. The victim drove his father's grey Saab 9000 four-door sedan to the Black Seal and left sometime before 1:30 a.m. The victim then drove alone to Lucky's Café (Lucky's), looking to purchase crack cocaine. The victim met the [petitioner], Gregory Pierre and Jeffrey Smith at Lucky's, and, after the [petitioner] stated that he could get the victim some cocaine, they all left the bar in order to complete the drug transaction.
" The victim bought two small bags of crack cocaine in exchange for $20, and he and the [petitioner], with Pierre and Smith following in a separate vehicle, drove to Pierre's apartment complex in New London so that the victim could use the drugs he had just purchased. Once they arrived at the apartment complex, Pierre, Smith and the [petitioner] pulled the victim out of the Saab and beat him. When this attack ceased, the victim was badly injured but still alive. The three men then put the victim into the backseat of the Saab and brought him to a nearby parking lot abutting Bates Woods, a park in New London. They pulled the victim out of the car once more, and this time beat him to death. Pierre, Smith and the [petitioner] then dragged the victim's body into Bates Woods, where they covered the body with dirt and plastic bags. The [petitioner] disposed of the victim's Saab by pushing it into a small pond behind the Waterford police department.
" According to Harrison Fortier, a sergeant with the Waterford police department, the police were alerted at approximately 6:30 a.m. on August 23, 1998, that a car had been abandoned with its front tires submerged in the duck pond near the police station. Upon looking inside the car, Fortier noticed red stains, which led him to believe that someone may have been injured inside. Fortier cross-referenced the license plate of the vehicle with the department of motor vehicles and discovered that the car was registered to Donald Connor, the victim's father. Police also found two palm prints on the outside of the vehicle, which were later identified as matching the [petitioner's] palms.
" In January 1999, a badly decomposed body was found in Bates Woods. Harold Wayne Carver II, chief medical examiner for the state, examined the remains and identified them as belonging to the victim. Carver classified the manner of death as a homicide.
" In the course of their investigation, the police developed a list of three suspects--Pierre, Smith and the [petitioner]--who they believed were responsible for the victim's death. Detectives Thomas Murray of the Connecticut state police and Rod Gaynor of the New London police department visited one of these suspects, the [petitioner], in order to obtain his palm prints. Murray and Gaynor went to the [petitioner's] home and asked him to accompany them to the police station, where they took his palm prints and then turned him over to Detectives James McGlynn of the Connecticut state police and David Gigliotti of the New London police department for questioning. McGlynn and Gigliotti informed the [petitioner] repeatedly that he was not under arrest and that he was free to leave at any time. The door to the office where the detectives interviewed the [petitioner] was not locked, and the [petitioner] was not handcuffed. The [petitioner] gave a statement while at the police station describing his involvement in the victim's death and also drew a diagram of where he said the victim's body was located. McGlynn and Gigliotti drove the [petitioner] home at the conclusion of the interview.
" The [petitioner] subsequently was arrested and charged in connection with the victim's death. The [petitioner] filed a pretrial motion to suppress both his statements and the diagram he had drawn for the police. The [petitioner] claimed that the statements and the map had been procured in the course of a custodial interrogation, but without the necessary Miranda warnings having been given to him. After a hearing, the trial court denied the [petitioner's] motion to suppress. After the trial, the jury returned a verdict of guilty of first degree manslaughter, first degree kidnapping and first degree robbery. The trial court thereafter rendered judgment in accordance with the verdict and sentenced the [petitioner] to a total effective sentence of eighty-five years imprisonment." Id., 601-03.
On direct appeal, the petitioner " raise[d] two issues . . . First, he contend[ed] that the trial court improperly denied his motion to suppress certain statements he made to police based on the court's conclusion that the [petitioner] was not in custody and therefore could give police a statement regarding his involvement in the murder of the victim, James Connor, without having been given Miranda warnings. Second, the [petitioner] claim[ed] that the trial court improperly deprived him of a fair trial and an impartial jury by explaining to the jury that if the [petitioner] were found guilty of capital felony, during the penalty phase, the jury would hear evidence regarding the aggravating factor set forth in General Statutes § 53a-46a(i)(1), that is, that the offense charged had occurred during the commission of a felony and that the [petitioner] previously had been convicted of the same felony." (Footnote renumbered.) Id., 600-01. The Supreme Court affirmed the judgment of the trial court. Id., 618.
" Miranda v. Arizona, 384 U S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ('[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed')."
The petitioner previously filed a habeas corpus petition, assigned docket number CV-07-4002044-S in the judicial district of Tolland. In his revised second amended petition filed by assigned counsel, Attorney Christopher Duby, the petitioner raised claims in three counts: (1) ineffective assistance by trial counsel, Attorneys DiCaprio and Barrs; (2) actual innocence premised on state grounds; and (3) actual innocence premised on federal grounds. As relief the petitioner requested, inter alia, that the habeas court vacate his convictions and sentence and remand the matter to the criminal court for further proceedings according to law. Petitioner's Exhibit 30, p. 5.
Count one alleged the following deficient performance by trial counsel: (1) failure to present an adequate factual basis to have the petitioner's statement suppressed, including not have the petitioner testify at the suppression hearing; (2) failure to properly object and prevent the jury from hearing the judge instruct them on the petitioner's prior convictions for the same type of felony and that the prosecutor was using as an aggravant in the capital felony prosecution; (3) failed to utilize a forensic expert at trial; and (4) failure to obtain a plea offer from the state and/or advise the petitioner to accept a plea offer and agreement. Petitioner's Exhibit 30.
For the reasons articulated by the first habeas court, Schuman, J., the petition for a writ of habeas corpus was denied. Petitioner's Exhibit 29. The petitioner appealed from the denial of the petition for certification to appeal and " . . . claim[ed] that the court erred in finding that his trial counsel did not render ineffective assistance with respect to his attorneys' (a) advice regarding the state's plea offer, (2) failure to offer the petitioner's testimony at a suppression hearing and (3) failure to object to the trial court's instructions to the venire panel." Britton v. Commissioner of Correction, 141 Conn.App. 641, 643, 61 A.3d 1188, cert. denied, 308 Conn. 946, 67 A.3d 290 (2013). The Appellate Court dismissed the appeal after addressing fully the three claims raised on appeal. Id., 660.
The petitioner then initiated the present matter, his second habeas corpus petition challenging the identical convictions.
DISCUSSION
Count One--Ineffective Assistance by Attorneys DiCaprio and Barrs
The petitioner's first count claims ineffective assistance by trial defense counsel. More specifically, the petitioner asserts the following three grounds for deficient performance: (1) inadequately presenting evidence and testimony during the motion to suppress hearing; (2) failure to investigate essential defense witnesses or subpoena witnesses to help show that first responders to the crime scene mishandled the victim's body; and (3) failure to adequately introduce exculpatory evidence through witnesses to show Norman Carr's contradiction to prior statement(s) to the police and trial testimony in an interview prior to the jury trial. The respondent denies these allegations and avers that the claim in count one is successive in that it was raised in the first habeas corpus petition and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition. The petitioner's reply asserts that " the current claims and allegations raised does [sic] not present the same ground as the prior petition." Petitioner claims that both petitions are singularly different and distinct in respect to relief claimed.
The law regarding successive petitions is well-defined. " [A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief . . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition." (Internal quotation marks omitted.) Carter v. Commissioner of Correction, 109 Conn.App. 300, 305-06, 950 A.2d 619 (2008); see also Anderson v. Commissioner of Correction, 114 Conn.App. 778, 794, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).
" Our courts have repeatedly applied the doctrine of res judicata to claims duplicated in successive habeas petitions filed by the same petitioner . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata . . . [is limited] to claims that actually have been raised and litigated in an earlier proceeding." (Citation omitted; internal quotation marks omitted.) Moody v. Commissioner of Correction, 127 Conn.App. 293, 297-98, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011). " The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings . . . However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata . . . [is limited] to claims that actually have been raised and litigated in an earlier proceeding." (Emphasis added; internal quotation marks omitted.) Diaz v. Comm'r of Corr., 125 Conn.App. 57, 63-64, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).
In his first habeas corpus petition, the petitioner's first count claimed, premised on at least four alleged deficiencies, ineffective assistance by trial counsel. As relief the petitioner requested that the habeas court vacate his convictions and sentence and remand the matter to the criminal court for further proceedings. The legal claim in count one of the present habeas corpus petition is identical to that raised in the first habeas petition, as is the relief sought. Thus, unless the petitioner has presented newly discovered evidence that was not reasonably available at the time of the first habeas trial, he is barred from again litigating a claim of ineffective assistance by trial counsel.
All of the petitioner's witnesses at the second habeas trial either testified in the first habeas trial or were available to testify in that prior habeas. The documentary evidence proffered by the petitioner contains no new evidence, let alone evidence that was not reasonably available at the time of the first habeas. Consequently, the court concludes that the claim in count one is successive and that the petitioner is barred by res judicata from again directly litigating a claim of ineffective assistance by trial counsel.
Count Two--Ineffective Assistance by Attorney Duby
The petitioner's second count alleges ineffective assistance by prior habeas counsel, Attorney Duby. The petitioner identifies four ways in which prior habeas counsel was deficient, the first three of which were the grounds asserted in count one: (1) inadequately presenting evidence and testimony during the motion to suppress hearing; (2) failure to investigate essential defense witnesses or subpoena witnesses to help show that first responders to the crime scene mishandled the victim's body; (3) failure to adequately introduce exculpatory evidence through witnesses to show Norman Carr's contradiction to prior statement(s) to the police and trial testimony in an interview prior to the jury trial; and (4) failure to raise a claim pursuant to State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and its progeny that the jury was improperly instructed on the kidnapping charges.
The Salamon claim also is separately raised as a freestanding claim in count three.
" '[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland [ v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), ] standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . .' Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must 'prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.' (Emphasis added.) Id. 842; see also Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442, Page 395 66 Conn.App. 809, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002)." Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 388, 966 A.2d 780 (2009).
The petitioner extensively litigated the motion to suppress prior to his jury trial, challenged the court's denial thereof on direct appeal, and litigated a claim in the first habeas that trial counsel were ineffective at the motion to suppress hearing for not having the petitioner testify in that hearing. The Appellate Court affirmed the first habeas court's conclusion that trial counsel were not ineffective for failing to have the petitioner testify at the motion to suppress hearing. Britton v. Commissioner of Correction, supra, 141 Conn.App. 651-57. The petitioner's burden has gotten progressively more difficult and the evidence more repetitive and tenuous.
Both Attorneys DiCaprio and Barrs testified in the second habeas trial, but did not offer any evidence of what they could or should have done that would have made their representation at the motion to suppress hearing more effective. According to Attorney Duby, he investigated the claim of ineffective assistance of trial counsel related to the motion to suppress and interviewed some of the police officers. The petitioner told Attorney Duby that he felt that he was not free to leave when he made his statement to the police and that he was in custody. Other witnesses at the second habeas trial, such as Detective McGlynn and the petitioner, presented testimony consistent with their previous testimony.
The petitioner testified in the first habeas trial and the habeas court concluded that " even if the petitioner had testified at the suppression hearing exactly as he had at the habeas trial, the trial court would not have granted the motion to suppress the statements . . . [T]he court found, inter alia, that the petitioner was not prejudiced by his attorneys' decision not to offer his testimony during the hearing on the motion to suppress because his testimony would not have affected the trial court's ruling on the motion.
" [The Appellate Court agreed] with the habeas court's finding that the petitioner was not prejudiced by his attorneys' decision against offering his testimony at the suppression hearing. As the court explained, the petitioner has not shown that the scant additional evidence that he would have offered had he testified, which was unlikely to be credited by the trial court, would have altered the trial court's ruling on the motion to suppress. The petitioner's testimony did not establish any credible new or additional factual bases for a court to find that he was in custody for purposes of triggering his Miranda rights. Thus, . . . the petitioner was not prejudiced by his attorneys' failure to offer his testimony at the suppression hearing . . ." Id., 656-57.
Given all the foregoing, the court concludes that the petitioner has failed to show that Attorney Duby was ineffective in how he investigated and litigated the claim of ineffective assistance by trial counsel as to the motion to suppress hearing.
The next area of alleged deficient performance by Attorney Duby is that he failed to investigate essential defense witnesses or subpoena witnesses to help show that first responders to the crime scene mishandled the victim's body. In addition to interviewing some of the police officers, Attorney Duby also spoke with Dr. Wayne Carver, the former Chief Medical Examiner, who testified in the criminal trial. Attorney Duby hired a medical expert because he was not convinced that the cause of death was accurate and the petitioner felt the body had been moved by the police. At the habeas trial, Attorney Duby presented the testimony of his medical expert, Dr. Callery, but his testimony was not particularly helpful because he was of the opinion that any moving of the body, if it occurred, did not affect the autopsy results. The first habeas court found that Dr. Callery's testimony would have further supported the state's theory of the cause of death and that his opinions were consistent with Dr. Carver's. Petitioner's Exhibit 29, pp. 6-7. The only evidence presented by the petitioner at the second habeas trial that relates to this claim is the testimony by Kenneth Edwards, Jr., an inspector for the state's attorney's office, who was at the burial site. Inspector Edwards, who at first was not sure whether the remains found were human, took some photographs, moved some dirt with a screwdriver, and lifted up the skull and turned it to better see it. According to Inspector Edwards, he wore gloves while he did the foregoing.
The court concludes that the evidence presented by the petitioner during the second habeas trial fails to show that Attorney Duby was ineffective for failing to investigate essential defense witnesses or subpoena witnesses to help show that first responders to the crime scene mishandled the victim's body.
The third purported failure by Attorney Duby is that he failed to adequately introduce exculpatory evidence through witnesses to show Norman Carr's contradiction to prior statement(s) to the police and trial testimony in an interview prior to the jury trial. Attorney DiCaprio testified that Carr's testimony during the criminal trial was adverse to what is in the statement he gave to police on February 16, 1999. See Petitioner's Exhibit 21. After he gave his statement to police, but prior to testifying at the petitioner's criminal trial in 2004, Carr testified at the criminal trial of Gregory Pierre. At the second habeas trial, Ligia Werner, an investigator for the public defender's office, testified that she interviewed Carr and prepared the summary of the interview she conducted of Carr on June 27, 2001. See Petitioner's Exhibit 20. Carr's interview with Werner, as well as both of his testimonies at Pierre's and the petitioner's criminal trials, were consistent in that they were inconsistent with his February 16, 1999 statement to the police. At both criminal trials Carr testified that he could not remember anything he said to the police and his statement was admitted as a prior inconsistent statement in both Pierre's and the petitioner's criminal trials pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).
This court has reviewed all of Carr's criminal trial testimony. Petitioner's Exhibit 7, pp. 20-97. Carr repeatedly testified that he had no memory what he said to the police and could not recall anything he said in his statement. The trial court permitted the statement to come in as a prior inconsistent statement pursuant to Whelan . The petitioner did not challenge that ruling on his direct appeal. However, in State v. Pierre, 277 Conn. 42, 890 A.2d 474 (2005), the direct appeal of one of the petitioner's co-defendants, precisely such a claim was raised that the trial court erred when it admitted, pursuant to Whelan, the identical Carr statement after Carr repeatedly indicated that he had no memory of what he said to police. The Supreme Court at great length analyzed Pierre's claims that the trial court erred in admitting Carr's statement. Id., 53-89. This court fails to see how, had the petitioner similarly raised a claim on direct appeal or in his first habeas petition challenging the admission of Carr's statement, that the outcome would have been any different than that of his co-defendant, Gregory Pierre.
The trial judge in both Pierre's and the petitioner's trials was Judge Schimelman, who at the time of the petitioner's criminal trial was familiar with Carr's memory difficulties.
The petitioner has not shown that Attorney Duby somehow was deficient for failing to adequately introduce exculpatory evidence through witnesses to show Norman Carr's contradiction to prior statement(s) to the police and trial testimony in an interview prior to the jury trial. The petitioner has not presented any evidence that can be considered exculpatory. Additionally, the jury was apprised of the contradiction between Carr's statement and his in-court testimony. Even if the petitioner had vociferously challenged the statement's admission under Whelan both at the trial and appellate levels, he cannot prevail on the prejudice prong because the trial court properly admitted Carr's statement pursuant to Whelan . The third basis for ineffective assistance by Attorney Duby also must be denied.
The fourth and final claim of ineffective assistance by Attorney Duby is that he failed to raise a claim pursuant to State v. Salamon, supra, and its progeny that the jury was improperly instructed on the kidnapping charges. Attorney Duby testified at the habeas trial that he was familiar with Salamon and its progeny and considered raising a claim based on that line of cases. According to Attorney Duby, the petitioner's first habeas trial occurred several months prior to the release of Luurtsema v. Commissioner of Correction, 299 Conn. 740, 751, 12 A.3d 817 (2011), which held that Salamon applied retroactively. Attorney Duby did not raise a Salamon claim in the first habeas corpus because he concluded that the jury instruction on kidnapping was not defective and, therefore, that there was no viable Salamon claim.
" [A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case . . ." State v. Salamon, supra, 287 Conn. 547. " . . . Connecticut courts ultimately assess the importance of a Salamon instruction by scrutinizing how a reasonable jury would perceive the defendant's restraint of the victim, particularly with respect to when, where, and how the defendant confined or moved the victim." Wilcox v. Commissioner of Correction, 162 Conn.App. 730, 745, 129 A.3d 796 (2016).
The petitioner was charged in a substitute information with two separate counts of kidnapping. In count four, the petitioner was charged with kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) for " abduct[ing] James Connor and restrain[ing] James Connor with the intent to inflict physical injury upon James Connor . . ." Petitioner's Exhibit 3, p. 6. In count five, the petitioner was charged with kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B) for " abduct[ing] James Connor and restrain[ing] James Connor with attempt to accomplish and advance the commission of a robbery . . ." Id.
The facts as reasonably found by the jury included that " t]he victim bought two small bags of crack cocaine in exchange for $20, and he and the [petitioner], with Pierre and Smith following in a separate vehicle, drove to Pierre's apartment complex in New London so that the victim could use the drugs he had just purchased. Once they arrived at the apartment complex, Pierre, Smith and the [petitioner] pulled the victim out of the Saab and beat him. When this attack ceased, the victim was badly injured but still alive. The three men then put the victim into the backseat of the Saab and brought him to a nearby parking lot abutting Bates Woods, a park in New London. They pulled the victim out of the car once more, and this time beat him to death. Pierre, Smith and the [petitioner] then dragged the victim's body into Bates Woods, where they covered the body with dirt and plastic bags. The [petitioner] disposed of the victim's Saab by pushing it into a small pond behind the Waterford police department." State v. Britton, supra, 283 Conn. 601-02.
In his closing arguments, the prosecutor summarized the evidence as follows: " Now, the kidnapping in the first degree, there's actually two counts, the fourth and fifth counts [of the substitute information]. One kidnapping is distinguished from the other because one is that James Connor was restrained with the intent, that is, the intent from not letting him from getting free and they restrained him with the intent to inflict physical injury upon him. The state asserts that this actually happened on several occasions, this kidnapping. The [petitioner], Monk, and Coyote restrained James Connor when they got into his Saab, when they got into his car at Michael Road he was restrained there. In fact, the evidence is a Junito Jarvis told us, that he was pulled out of the car and as he was being pulled into [sic] the car. The state would assert that the evidence says that that's one particular kidnapping. Then he is put back into his own car and driven to Bates Woods.
" . . . Now, the other kidnapping, the fifth count, is that a kidnapping, which is as I indicated, a restraining with a purpose of--with the intent of a felony and the felony, the state would assert in this case, was robbery and the evidence of the robbery in this case actually comes from several sources, two of which come from the [petitioner]. One is he told Amanda Blackmon that it was over $90 and some jewelry. The other is he told Norman Carr that it was about $90 and also from a codefendant, Jeffrey Monk Smith. Jeffrey Monk Smith told his friend Junito Jarvis that this was about a gold or a Rolex watch." Petitioner's Exhibit 12, pp. 7-8.
The trial court's jury charge extensively instructed the jury about kidnapping, both as a predicate for the capital felony and felony murder charges, as well as for the separate kidnapping counts. Petitioner's Exhibit 14, pp. 2-71. These instructions regarding kidnapping did not comport with Salamon, which was released about four years after the petitioner's criminal trial.
It is not disputed that the jury found that the victim was moved and/or restrained at least two separate times as alleged in the two kidnapping counts. Once to facilitate injury to him, another time to rob him. These movements and/or restrictions of the victim had clearly defined and distinct significance from each other and from other charged offenses. A reasonable fact finder could clearly determine that the restraint and/or movement of the victim was not merely incidental to the other offenses. That is, the movements and/or confinements had independent criminal significance.
The petitioner's Salamon claim, therefore, must be denied because the underlying facts would not have warranted a jury instruction pursuant to Salamon . Even if the petitioner were entitled to have such an instruction being given to the jury, the absence of a Salamon instruction was harmless error. See, e.g., State v. Hampton, 293 Conn. 435, 455-64, 978 A.2d 1089 (2009) (Supreme Court concluded that the lack of a Salamon instruction at trial was harmless error given the particular facts of the case); State v. Nelson, 118 Conn.App. 831, 834-36, 856, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010) (Appellate Court held that the absence of a Salamon instruction was harmless error given facts of the case).
The court concludes that Attorney Duby was not ineffective for failing to raise a Salamon claim in the first habeas corpus.
Count Three--Unfair Trial Because of Deficient Jury Instruction
The third and final count of the revised second amended petition alleges that the jury instructions, as given by Judge Schimelman, should have comported with Salamon and its progeny. The respondent's return asserts that this claim is procedurally defaulted. However, the Supreme Court recently held that procedural default does not apply to Salamon claims as made retroactively applicable by Luurtsema v. Commissioner of Correction, 299 Conn. 740, 751, 12 A.3d 817 (2011). See Hinds v. Commissioner of Correction, 321 Conn. 56, 61, 136 A.3d 596 (2016).
For the reasons already articulated in addressing the claim that Attorney Duby was ineffective for not raising a Salamon claim, the court concludes that there was no factual basis for a Salamon instruction. Furthermore, even if such an instruction should have been given, the lack of that instruction was harmless error given the particular facts of this case. State v. Hampton, supra, 293 Conn. 455-64; State v. Nelson, supra, 118 Conn.App. 834-36. The claim in count three, accordingly, must be denied.
CONCLUSION
Judgment shall enter for the respondent. The petition for a writ of habeas corpus is denied. Counsel for the petitioner shall prepare a judgment file and file it with the clerk within thirty days of the date of this decision.
It is so ordered.