Summary
granting certification to appeal to resolve question, "unresolved by Hinds ," of "[w]hether ... in a collateral proceeding, [when] the petitioner claims that the trial court erred by omitting an element of the criminal charge in its final instructions to the jury ... harm [is] measured in accordance with Brecht ... or ... Neder "
Summary of this case from Banks v. Comm'r of Corr.Opinion
09-13-2016
Kevin EPPS v. COMMISSIONER OF CORRECTION
Leon F. Dalbec, senior assistant state's attorney, in support of the petition. Adele V. Patterson, senior assistant public defender, in opposition.
Leon F. Dalbec, senior assistant state's attorney, in support of the petition.
Adele V. Patterson, senior assistant public defender, in opposition.
The respondent's petition for certification for appeal from the Appellate Court, 153 Conn. App. 729 (AC 35259), is granted, limited to the following issues:
"1. Whether, in a question left unresolved by Hinds v. Commissioner of Correction, 321 Conn. 56, 76-94, 136 A.3d 596 (2016), in a collateral proceeding, where the petitioner claims that the trial court erred by omitting an element of the criminal charge in its final instructions to the jury, is harm measured in accordance with Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L.Ed. 2d 353 (1993), or is harm measured in accordance with Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L.Ed. 2d 35 (1999) ?
"2. If the Brecht standard for assessing harm is adopted by this court, did the evidence in this case establish that the absence of an instruction in accordance with State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), had no ‘substantial and injurious effect or influence in determining the jury's verdict’ finding the petitioner guilty of kidnapping?
"3. If the Neder standard for assessing harm is adopted by this court, did the Appellate Court err when it held that ‘[i]n the absence of a Salamon instruction, [it had] no reasonable assurance that the [petitioner's] kidnapping conviction was not based on restraint of the victim that was incidental to the assault of which the petitioner was convicted?’ "