Hinds v. Commissioner of Correction

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 WALTER HINDS v. COMMISSIONER OF
CORRECTION
(SC 19393)
(SC 19394)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Robinson and
DiPentima, Js.*
Argued October 6, 2015—officially released April 26, 2016

Jo Anne Sulik, supervisory assistant state’s attorney,
with whom, on the brief, were Kevin D. Lawlor, state’s
attorney, Erika L. Brookman, assistant state’s attorney,
and Mary M. Galvin, former state’s attorney, for the
appellant in Docket No. SC 19393 and appellee in
Docket No. SC 19394 (respondent).
 Adele V. Patterson, senior assistant public defender,
for the appellee in Docket No. SC 19393 and appellant
in Docket No. SC 19394 (petitioner).
 Opinion

McDONALD, J. In 2002, the petitioner, Walter Hinds,
was convicted of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (1) and kid-
napping in the first degree in violation of General Stat-
utes § 53a-92 (a) (2) (A).1 Three years after the
petitioner’s judgment of conviction was final, this court
overruled an interpretation of our kidnapping statutes
to which it had adhered in the face of numerous chal-
lenges over more than three decades, under which the
crime of kidnapping did not require that the restraint
used be more than that which was incidental to and
necessary for the commission of another crime against
the victim. See State v. Salamon, 287 Conn. 509, 949
A.2d 1092 (2008). Subsequently, this court determined
that the holding in Salamon overruling that overly broad
interpretation applied retroactively to collateral attacks
on final judgments. See Luurtsema v. Commissioner
of Correction, 299 Conn. 740, 751, 12 A.3d 817 (2011)
(Luurtsema II). The principal issues in the present case
are whether the petitioner’s failure to challenge our
long-standing interpretation of kidnapping in his crimi-
nal proceedings requires him to overcome the bar of
procedural default, and what constitutes the proper
standard for assessing whether the petitioner is entitled
to a new trial on that charge.
Upon our grants of certification, the respondent, the
Commissioner of Correction, and the petitioner sepa-
rately appealed from the Appellate Court’s judgment,
which affirmed the judgment of the habeas court grant-
ing in part and denying in part the petitioner’s petition
for a writ of habeas corpus and ordering a new trial
on the kidnapping charge. Hinds v. Commissioner of
Correction, 151 Conn. App. 837, 839, 97 A.3d 986 (2014).
In his certified appeal, the respondent contends that the
Appellate Court applied the wrong cause and prejudice
standards in concluding that the petitioner had over-
come his procedural default of a challenge to the kid-
napping instruction and therefore could prevail on the
merits. In the petitioner’s appeal, he contends that the
Appellate Court improperly affirmed the habeas court’s
judgment insofar as it concluded that a due process
claim based on the cumulative effect of trial errors
that individually were harmless is not cognizable under
Connecticut law.
With respect to the respondent’s appeal, we conclude
that Luurtsema II’s retroactivity decision compels the
conclusion that challenges to kidnapping instructions
in criminal proceedings rendered final before Salamon
are not subject to the procedural default rule. We fur-
ther conclude that the petitioner is entitled to a new
trial on the kidnapping charge because the omission
of a Salamon instruction was not harmless beyond a
reasonable doubt. With respect to the petitioner’s
appeal, we conclude that, even assuming we were to
recognize cumulative trial error as a basis for a due
process violation, the improprieties in the petitioner’s
criminal trial would not rise to such a level. Therefore,
we affirm the judgment of the Appellate Court.
The jury reasonably could have found the following
facts in support of the kidnapping and sexual assault
convictions, none of which the petitioner disputed
except his identity as the perpetrator.2 On August 28,
2000, at approximately 9 p.m., sixteen year old K3 left
the Super Stop & Shop supermarket in Milford on foot
to head to a friend’s apartment that was approximately
five minutes away. En route, K cut through the property
of In-Line Plastics Tool Company (In-Line Plastics). As
she approached the property, K noticed a pickup truck
exit the driveway of In-Line Plastics, but then reenter
and come to a stop in the parking area. As she walked
past the truck, she turned around and observed that
the driver had exited the vehicle and was walking
behind her. She continued walking and, upon turning
around again, she saw that the driver was right behind
her and wearing only underwear and a sleeveless shirt.
Although it was nighttime, the lights on the surrounding
buildings sufficiently illuminated the area to enable K
to see the face of the driver, the petitioner.
At that point, K started to run through the parking
lot of In-Line Plastics, in the direction of some trees
between the back parking lot and the route to her
friend’s apartment. The petitioner ran after K, grabbed
her, and put one of his hands around her waist and his
other hand over her mouth. He instructed her not to
scream or he would kill her. The petitioner then threw
K down and dragged her by the legs to a grassy area
between the In-Line Plastics parking lot and a small
house, behind an overgrown bush where it was darker.
The petitioner sat on K’s chest with his legs on the
outside of her arms so she could not move and
instructed K to open her mouth. He inserted his penis
into her mouth and forced her to perform fellatio on
him, ejaculating into her mouth. The petitioner then
patted her on the cheek and told her she could leave.
Too afraid to move, K remained where she was. As the
petitioner walked back toward his truck, K pleaded
with him not to kill her, telling him that she would not
tell anybody what had happened. The petitioner turned
around and looked at K, again enabling her to see his
face. He then entered his truck and drove away. K’s
description of her attacker and his truck eventually led
to the petitioner’s identification and arrest.
The record reflects the following procedural history.
At trial, the jury was instructed, without objection, on
the elements of abduction and restraint in accordance
with established law regarding kidnapping. Following
his conviction of sexual assault in the first degree and
kidnapping in the first degree, the defendant claimed
on direct appeal that the trial court had committed four
improprieties. See State v. Hinds, 86 Conn. App. 557,
558–59, 861 A.2d 1219 (2004), cert. denied, 273 Conn.
915, 871 A.2d 372 (2005). None related to the jury
instruction on kidnapping. The Appellate Court sepa-
rately examined each of the claimed improprieties, and
concluded that three improprieties had occurred but
each was harmless. Id., 563–77. Accordingly, it affirmed
the judgment of conviction. Id., 577. This court denied
the petitioner’s petition for certification to appeal. See
State v. Hinds, 273 Conn. 915, 871 A.2d 372 (2005).
Thereafter, this court issued its decisions in Salamon
and Luurtsema II, respectively overruling its overly
broad interpretation of our kidnapping statutes and
deeming the interpretation pursuant to Salamon to
apply retroactively. Following the appointment of
habeas counsel, the petitioner filed a second amended
petition for a writ of habeas corpus. Therein, he alleged
that: (1) there was constitutional error in the kidnapping
instruction, pursuant to Salamon and Luurtsema II;
and (2) there were cumulative trial errors that violated
his right to a fair trial. The respondent asserted proce-
dural default as affirmative defenses to both counts, as
well as failure to state a cognizable claim with respect
to the second count. The habeas court granted the peti-
tion as to the first count, concluding that the petitioner
had proved that he was entitled to the Salamon limiting
instruction and that it was not clear beyond a reason-
able doubt that the verdict on the kidnapping charge
would have been the same had the jury been given the
instruction. The habeas court rejected the respondent’s
procedural default defense, reasoning that Luurtsema
II compelled such a result and that good cause existed
for trial counsel’s failure to seek a Salamon instruction
in any event because firmly established law would have
made a request for such an instruction futile. The
habeas court denied the petition as to the second count,
concluding that a due process claim of cumulative harm
had not been recognized in Connecticut.
Both parties appealed from the judgment, and the
Appellate Court consolidated the appeals. See Hinds
v. Commissioner of Correction, supra, 151 Conn. App.
839 n.1. Although the Appellate Court affirmed the
habeas court’s judgment; id., 839; it adopted different
reasoning with respect to the kidnapping instruction.
It determined that the proper framework for addressing
that claim in light of the procedural default defense is
the cause and prejudice standard set forth in Wain-
wright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed.
2d 594 (1977), as adopted by this court in Johnson v.
Commissioner of Correction, 218 Conn. 403, 409, 589
A.2d 1214 (1991). See Hinds v. Commissioner of Cor-
rection, supra, 151 Conn. App. 852–53. The Appellate
Court concluded that the cause standard had been met
because there was no reasonable basis for the petitioner
to have asked for an instruction that had been rejected
by controlling decisional law. Id., 855. The Appellate
Court further concluded that, although the habeas
court’s decision suggested that it improperly had placed
the burden on the respondent to prove that the omission
of the Salamon instruction was harmless; id., 855–56;
the petitioner had demonstrated the requisite actual
and substantial prejudice. Id., 858–59. The court cited
the close alignment in time and place of the victim’s
restraint and abduction to the sexual assault and the
fact that the proper instruction would have required
the jury to consider whether the restraint and abduction
were merely incidental to the sexual assault. Id., 859.
In sum, it concluded that ‘‘[t]he failure to give a Salamon
instruction, under the facts presented at trial, substan-
tially deprived the petitioner of his constitutional right
to have the jury properly informed of the meaning of
the language of the kidnapping charge.’’ Id. The parties’
certified appeals to this court followed.
In our review of the issues raised, we are mindful
that, while ‘‘[t]he underlying historical facts found by
the habeas court may not be disturbed unless the find-
ings were clearly erroneous . . . [q]uestions of law and
mixed questions of law and fact receive plenary
review.’’ (Internal quotation marks omitted.) Crawford
v. Commissioner of Correction, 294 Conn. 165, 174, 982
A.2d 620 (2009). Because the certified appeals do not
involve challenges to facts found, we apply plenary
review.
I
We begin with the respondent’s appeal challenging
the Appellate Court’s affirmance of the habeas court’s
judgment insofar as it granted the petitioner a new trial
on the kidnapping charge. The respondent does not
challenge the Appellate Court’s conclusion that the
habeas court properly determined that a Salamon lim-
iting instruction would apply under the facts of the
present case. Rather, he contends that the Appellate
Court did not correctly apply the legal standard for
assessing cause and prejudice to overcome procedural
default. With respect to cause, he contends that Sala-
mon itself disproves the Appellate Court’s determina-
tion that the law on kidnapping was settled at the time
of the petitioner’s criminal trial. He further contends
that, even if the law was settled, futility does not estab-
lish cause. At oral argument, the respondent suggested
that, if this court were inclined to accept the petitioner’s
futility argument, it would be preferable to create a
limited exception for Salamon claims rather than to
change the law on procedural default. With respect to
prejudice, the respondent contends that the prejudice
necessary to overcome procedural default can only be
established if the petitioner demonstrates that he would
not have been convicted had the jury been charged in
accordance with Salamon, a burden that the petitioner
cannot meet.
In response, the petitioner first contends that the
habeas court properly concluded that there had not
been a procedural default. The petitioner asserts that
the respondent failed to plead and prove that affirmative
defense. The petitioner further asserts that the habeas
court properly concluded that Luurtsema II compels
the conclusion that there had been no default because
that decision examined the policies underlying proce-
dural default and found them to be outweighed by the
importance of providing a habeas corpus remedy for
persons convicted prior to Salamon under the incorrect
interpretation of kidnapping.4 Alternatively, the peti-
tioner contends that the Appellate Court properly con-
cluded that he had established cause and prejudice
to excuse any procedural default. We agree with the
petitioner that Luurtsema II effectively resolved the
procedural default question such that the doctrine does
not apply to his Salamon claim. We further conclude
that the petitioner has established his entitlement to a
new trial on his kidnapping charge.
A
To address the questions before us, it is necessary to
provide some background regarding the extraordinary
circumstances preceding and following our decision in
Salamon. Under our Penal Code, the hallmark of a
kidnapping is an abduction, a term that is defined by
incorporating and building upon the definition of
restraint.5 State v. Salamon, supra, 287 Conn. 530; see
also footnote 1 of this opinion (defining kidnapping in
first degree). In 1977, this court squarely rejected a
claim that, when the abduction and restraint of a victim
are merely incidental to some other offense, such as
sexual assault, that conduct cannot form the basis of
a guilty verdict on a charge of kidnapping. See State v.
Chetcuti, 173 Conn. 165, 170–71, 377 A.2d 263 (1977).
The court pointed to the fact that our legislature had
declined to merge the offense of kidnapping with sexual
assault or with any other felony, as well as its clearly
manifested intent in the kidnapping statutes not to
impose any time requirement for the restraint or any
distance requirement for the asportation. Id. On numer-
ous occasions between that decision and the present
petitioner’s criminal trial, this court reiterated that posi-
tion. See, e.g., State v. Wilcox, 254 Conn. 441, 465–66,
758 A.2d 824 (2000); State v. Amarillo, 198 Conn. 285,
304–306, 503 A.2d 146 (1986); State v. Vass, 191 Conn.
604, 614, 469 A.2d 767 (1983); State v. Johnson, 185
Conn. 163, 177–78, 440 A.2d 858 (1981), aff’d, 460 U.S.
73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v.
Briggs, 179 Conn. 328, 338–39, 426 A.2d 298 (1979),
cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d
862 (1980); State v. DeWitt, 177 Conn. 637, 640–41, 419
A.2d 861 (1979); State v. Lee, 177 Conn. 335, 342–43,
417 A.2d 354 (1979). The court appeared to leave open
the possibility that there could be a factual situation in
which the asportation or restraint was so miniscule that
a conviction of kidnapping would constitute an absurd
and unconscionable result that would render the statute
unconstitutionally vague as applied. See State v.
Troupe, 237 Conn. 284, 315, 677 A.2d 917 (1996); State
v. Tweedy, 219 Conn. 489, 503, 594 A.2d 906 (1991). A
kidnapping conviction predicated on the movement of
the sexual assault victim from one room in her apart-
ment to another, however, was deemed not to constitute
such a result. State v. Tweedy, supra, 503.
In State v. Luurtsema, 262 Conn. 179, 203–204, 811
A.2d 223 (2002) (Luurtsema I), decided a few months
after the present petitioner’s criminal trial concluded,
this court foreclosed the possibility of an absurd or
unconscionable result as a matter of statutory interpre-
tation. In that case, the defendant, Peter Luurtsema,
had moved the victim from the couch to the floor, forced
the victim’s legs apart, and manually choked her while
attempting to perpetrate a sexual assault. Id., 200. The
defendant was convicted of attempt to commit sexual
assault in the first degree, kidnapping in the first degree,
and assault in the second degree. This court again
rejected the request to interpret our kidnapping statute
so as to require that the restraint and abduction to
support kidnapping exceed that which is incidental to
the commission of another crime. In accordance with
the consistent refrain of the decisions that preceded it,
the court in Luurtsema I concluded that, in light of the
express statutory terms, ‘‘[t]he defendant’s interpreta-
tion of the kidnapping statute is simply not the law in
this state.’’ (Internal quotation marks omitted.) Id., 202.
Six years later, in Salamon, the court was persuaded
to reexamine the broad, literal interpretation to which
it had adhered for more than three decades. See State
v. Salamon, supra, 287 Conn. 513–14. In concluding that
it must overrule its long-standing interpretation, the
court went beyond the language of the kidnapping stat-
utes to consider sources that it previously had over-
looked. It explained: ‘‘Upon examination of the common
law of kidnapping, the history and circumstances sur-
rounding the promulgation of our current kidnapping
statutes and the policy objectives animating those stat-
utes, we now conclude the following: Our legislature,
in replacing a single, broadly worded kidnapping provi-
sion with a gradated scheme that distinguishes kidnap-
pings from unlawful restraints by the presence of an
intent to prevent a victim’s liberation, 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. Stated otherwise,
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.’’ (Emphasis added.) Id., 542.
 Following that decision, Luurtesma filed a habeas
petition seeking to have the holding in Salamon applied
retroactively to his case. Luurtsema v. Commissioner
of Correction, supra, 299 Conn. 743. In Luurtsema II,
this court concluded as a matter of state common law
that policy considerations weighed in favor of retroac-
tive application of Salamon to collateral attacks on
judgments rendered final before that decision was
issued. In response to a host of arguments advanced
by the state against retroactivity, the court concluded:
‘‘We are not unsympathetic to the legitimate concerns
. . . relating to the general importance of preserving
the finality of criminal convictions. . . . [H]owever, we
are convinced that . . . in cases such as this, the inter-
ests of finality must give way to the demands of liberty
and a proper respect for the intent of the legislative
branch.’’ Id., 766.
B
With this background in mind, we turn to the question
of whether the petitioner’s Salamon claim is subject to
the doctrine of procedural default because of his failure
to challenge his kidnapping instruction in his criminal
proceedings. We conclude that it is not.6
Although our court has often recognized that we are
not bound by federal postconviction jurisprudence; see
Small v. Commissioner of Correction, 286 Conn. 707,
720, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz,
555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008);
Valeriano v. Bronson, 209 Conn. 75, 83 n.7, 546 A.2d
1380 (1988); Vena v. Warden, 154 Conn. 363, 366, 225
A.2d 802 (1966); we have adopted the procedural default
standard prescribed in Wainwright v. Sykes, supra, 433
U.S. 87. See Jackson v. Commissioner of Correction,
227 Conn. 124, 132, 629 A.2d 413 (1993); Johnson v.
Commissioner of Correction, supra, 218 Conn. 409.
‘‘Under this standard, the petitioner must demonstrate
good cause for his failure to raise a claim at trial or on
direct appeal and actual prejudice resulting from the
impropriety claimed in the habeas petition. . . . [T]he
cause and prejudice test is designed to prevent full
review of issues in habeas corpus proceedings that
counsel did not raise at trial or on appeal for reasons
of tactics, inadvertence or ignorance . . . .’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Johnson v. Commissioner of Correction, 285
Conn. 556, 567–68, 941 A.2d 248 (2008). The cause and
prejudice requirement is not jurisdictional in nature,
but rather a prudential limitation on the right to raise
constitutional claims in collateral proceedings. Taylor
v. Commissioner of Correction, 284 Conn. 433, 447 n.18,
936 A.2d 611 (2007).
The prudential considerations underlying the proce-
dural default doctrine are principally intended to vindi-
cate two concerns: federalism/comity and finality of
judgments. See Coleman v. Thompson, 501 U.S. 722,
750, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991); Murray
v. Carrier, 477 U.S. 478, 495, 106 S. Ct. 2639, 91 L. Ed. 2d
397 (1986); Crawford v. Commissioner of Correction,
supra, 294 Conn. 180–81; Jackson v. Commissioner of
Correction, supra, 227 Conn. 134; see also Brecht v.
Abrahamson, 507 U.S. 619, 635, 113 S. Ct. 1710, 123 L.
Ed. 2d 353 (1993) (‘‘The reason most frequently
advanced in our cases for distinguishing between direct
and collateral review is the [s]tate’s interest in the final-
ity of convictions that have survived direct review
within the state court system. . . . We have also spo-
ken of comity and federalism. The [s]tates possess pri-
mary authority for defining and enforcing the criminal
law. In criminal trials they also hold the initial responsi-
bility for vindicating constitutional rights. Federal intru-
sions into state criminal trials frustrate both the [s]tates’
sovereign power to punish offenders and their good-
faith attempts to honor constitutional rights.’’ [Citations
omitted; internal quotation marks omitted.]). Of course,
in state habeas proceedings, only finality and the con-
stellation of issues related thereto are implicated. See
James L. v. Commissioner of Correction, 245 Conn.
132, 142 n.11, 712 A.2d 947 (1998) (noting that statutory
constraints on federal court jurisdiction over federally
filed writs of habeas corpus ‘‘reflect congressional
views of federalism and comity that are not pertinent
to the exercise of state court jurisdiction over state
habeas corpus cases’’).
In Luurtsema II, this court engaged in a comprehen-
sive analysis of finality considerations when deciding
to apply Salamon retroactively to collateral attacks on
final judgments.7 Luurtsema v. Commissioner of Cor-
rection, supra, 299 Conn. 765–73. The court addressed
in turn five rationales advanced by the state in support
of either adopting a per se rule against retroactive relief
or denying relief in Luurtsema’s case: ‘‘(1) the fact that
law enforcement relied on the old interpretation of the
kidnapping statutes while trying the petitioner; (2) the
fact that the retroactive application of Salamon has no
deterrent value or remedial purpose; (3) the fear that
our courts will be ‘flooded’ with habeas petitions from
other inmates convicted under § 53a-92 (a) (2) (A); (4)
the difficulty of retrying such cases where significant
time has elapsed since conviction; and, perhaps most
importantly (5) the concern that victims will be retrau-
matized by again having to testify and endure another
round of judicial proceedings.’’ Id., 765. This court did
not find any of these rationales a sufficient basis, indi-
vidually or collectively, for withholding retroactive
application of Salamon to collateral attacks on final
judgments. Id., 766–73. Accordingly, application of the
procedural default bar to protect finality of judgments
seems inconsistent with the reasoning in Luurtsema
II that ‘‘the interests of finality must give way to the
demands of liberty and a proper respect for the intent
of the legislative branch.’’8 Id., 766; see also id., 759
(‘‘under our system of justice, considerations of finality
simply cannot justify the continued incarceration of
someone who did not commit the crime of which he
stands convicted’’).
Other aspects of the court’s reasoning bolster our
conclusion that this holding was not intended to afford
relief to only those petitioners who could avoid or over-
come the procedural default bar. The court in Luurt-
sema II extensively considered limitations on its
retroactivity ruling, but did not cite procedural default
as such a limitation.9 Availability of that doctrine and
its heightened prejudice standard would have been a
natural response to the state’s floodgates argument had
the court intended the doctrine to apply. Instead, the
court responded: ‘‘There is little doubt that some peti-
tioners will come forward contending that they are serv-
ing substantially longer sentences than are prescribed
by the criminal code, as properly construed. In its brief,
however, the state has identified only five such peti-
tions10 that have been filed in the more than two years
since we decided Salamon and [State v. Sanseverino,
291 Conn. 574, 969 A.2d 710 (2009)].11 At oral argument
before this court, the state declined to provide addi-
tional information as to the number of present inmates
who might have a colorable claim under Salamon. Of
the 1.5 percent of [D]epartment of [C]orrection inmates
incarcerated for kidnapping or unlawful restraint, one
can reasonably assume that only a small subset will fall
within the ambit of Salamon. Of those, we expect that
courts will be able to dispose summarily of many cases
where it is sufficiently clear from the evidence pre-
sented at trial that the petitioner was guilty of kidnap-
ping, as properly defined, [such] that any error arising
from a failure to instruct the jury in accordance with
the rule in Salamon was harmless. See, e.g., State v.
Hampton, 293 Conn. 435, 463–64, 978 A.2d 1089 (2009).
Likewise, we doubt the state will expend the resources
to retry cases where it is reasonably clear that a peti-
tioner could not have been convicted of kidnapping
under the correct interpretation of the statute.’’ (Foot-
notes altered.) Luurtsema v. Commissioner of Correc-
tion, supra, 299 Conn. 769–70.
One particular aspect of this response is telling. The
court cited the harmless error standard for direct
appeal—a standard wholly inconsistent with the actual
prejudice standard for procedurally defaulted claims—
as the limiting mechanism for colorable but ultimately
nonmeritorious claims. Id., 770. Compare State v.
Hampton, supra, 293 Conn. 463 (on direct appeal, ‘‘the
test for determining whether a constitutional [impropri-
ety] is harmless . . . is whether it appears beyond a
reasonable doubt that the [impropriety] complained of
did not contribute to the verdict obtained’’ [internal
quotation marks omitted]), with United States v. Frady,
456 U.S. 152, 170, 172, 102 S. Ct. 1584, 71 L. Ed. 2d 816
(1982) (in procedurally defaulted claim, petitioner must
prove that impropriety ‘‘worked to his actual and sub-
stantial disadvantage, infecting his entire trial with error
of constitutional dimensions,’’ such that, with proper
instruction, there was ‘‘substantial likelihood’’ that jury
would not have convicted petitioner [emphasis
omitted]).
In the present case, the respondent’s procedural
default argument rests on the same finality concerns
that were deemed insufficiently weighty in Luurtsema
II. Those concerns carry little weight in the present
case because we can have a fair assurance that the
state would effectively be in the same position even if
the petitioner had raised a Salamon type challenge in
his criminal proceedings. Not only was there a three
decades long history preceding the petitioner’s criminal
trial of rejecting such a challenge, but mere months
after the petitioner’s trial, the court in Luurtsema I
again rejected such a challenge. See State v. Luurtsema,
supra, 262 Conn. 202. Thus, we are not persuaded that
the state would suffer any greater burden with respect
to retrial if the petitioner prevails in this habeas action
than it would have suffered had the petitioner chal-
lenged his kidnapping instruction in his criminal pro-
ceedings.
In sum, we conclude that the court in Luurtsema II
determined that retroactive relief is available for all
collateral attacks on judgments rendered final prior
to Salamon, irrespective of whether the kidnapping
instruction was challenged in the criminal proceedings,
as long as the evidence warrants such relief. Accord-
ingly, the petitioner’s Salamon claim is not subject to
procedural default.
C
In light of this conclusion, we turn to the question
of whether the petitioner is entitled to a new trial due
to the omission of a proper instruction on kidnapping
in accordance with Salamon. This determination
requires us to consider the legal parameters set forth
in Salamon, and the standard for assessing whether
the omission of such guidance to the jury requires rever-
sal of the petitioner’s kidnapping conviction.
In Luurtsema II, the court indicated that the proper
standard to make such an assessment would be the
harmless error standard applied on direct appeal. See
Luurtsema v. Commissioner of Correction, supra, 299
Conn. 770, citing State v. Hampton, supra, 293 Conn.
463–64. That is the standard that was applied by the
habeas court in the present case and has been applied
in several other cases. See, e.g., Eric M. v. Commis-
sioner of Correction, 153 Conn. App. 837, 845, 108 A.3d
1128 (2014), cert. denied, 315 Conn. 915, 106 A.3d 308
(2015); St. John v. Warden, Superior Court, judicial
district of Tolland, Docket No. CV-11-4003987-S, 2013
WL 1277284 (March 7, 2013); see also Epps v. Commis-
sioner of Correction, 153 Conn. App. 729, 738, 740,
104 A.3d 760 (2014) (determining that petitioner must
overcome procedural default but applying direct appeal
harmless error standard in prejudice analysis);
Nogueira v. Warden, Superior Court, judicial district of
Tolland, Docket No. CV-14-4006033-S, 2015 WL 4172992
(June 10, 2015) (same); Smith v. Warden, Superior
Court, judicial district of Tolland, Docket No. CV-08-
4002747-S, 2011 WL 4582841 (September 13, 2011)
(same).
On direct appeal, ‘‘[i]t is well established that a defect
in a jury charge which raises a constitutional question
is reversible error if it is reasonably possible that, con-
sidering the charge as a whole, the jury was misled.
. . . [T]he test for determining whether a constitutional
error is harmless . . . is whether it appears beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained. . . . A jury instruc-
tion that improperly omits an essential element from the
charge constitutes harmless error [only] if a reviewing
court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict
would have been the same absent the error . . . .’’
(Citation omitted; internal quotation marks omitted.)
State v. Fields, 302 Conn. 236, 245–46, 24 A.3d 1243
(2011). The failure to charge in accordance with Sala-
mon is viewed as an omission of an essential element;
id.; and thus gives rise to constitutional error. See State
v. LaFleur, 307 Conn. 115, 125, 51 A.3d 1048 (2012).
We note that, except for the fact that this standard
imposes the burden of persuasion exclusively on the
state, it is effectively the same standard that this court
applies in habeas proceedings when such an error is
advanced through a claim of ineffective assistance of
counsel. See Small v. Commissioner of Correction,
supra, 286 Conn. 728 (The court cited the direct appeal
harmless error standard and then explained: ‘‘Because
the petitioner raises his claim that he suffered harm as
a result of the trial court’s failure to instruct the jury
on attempt via his claims of ineffective assistance of
counsel, our review is limited to the issue of whether,
under Strickland,12 the petitioner can demonstrate that
trial counsel’s failure to object to the erroneous charge
or appellate counsel’s failure to challenge it on appeal
prejudiced him. We therefore . . . assess whether
there is a reasonable probability that, if the issue were
brought before us on direct appeal, the petitioner would
have prevailed.’’ [Footnote added.]).
Under this harmless error standard, it is clear that
the petitioner is entitled to a new trial. ‘‘[T]o commit a
kidnapping in conjunction with another crime, a defen-
dant 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.’’ State
v. Salamon, supra, 287 Conn. 542. ‘‘[A] defendant may
be convicted of both kidnapping and another substan-
tive 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 accom-
plish or complete the other crime. Whether the move-
ment 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. . . .
For purposes of making that determination, the jury
should be instructed to consider the 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.’’ (Footnote omitted.) Id., 547–48.
In light of these parameters, we cannot conclude
‘‘beyond a reasonable doubt that the omitted element
was uncontested and supported by overwhelming evi-
dence, such that the jury verdict would have been the
same absent the error . . . .’’ (Internal quotation marks
omitted.) State v. Fields, supra, 302 Conn. 246. As Sala-
mon makes clear, when the evidence regarding the per-
petrator’s intent is susceptible to more than one
interpretation, that question is one for the jury. The
petitioner’s actions in the present case were a continu-
ous, uninterrupted course of conduct lasting minutes.
The petitioner could not accomplish the sexual assault
without grabbing K and bringing her to the ground.13 He
released K as soon as the sexual assault was completed.
Thus, the essential fact is the movement of K. K’s aspor-
tation from the spot where she was grabbed to the site
of the sexual assault, however, appears to have been
a matter of yards and accomplished in a matter of sec-
onds.14 Although that movement took K from the lit
parking lot to the adjacent dark ground by a bush, an
act that undoubtedly reduced the risk of detection in
one regard, it also brought K in very close proximity
to an occupied residence in the lot adjacent to the
parking lot. There is no evidence that the risk of harm
to K was made appreciably greater by the asportation
in and of itself.15 A properly instructed jury reasonably
could conclude that the petitioner’s intention in moving
K from the lit lot to the dark, grassy area was to prevent
her from being able to get a good look at his face,
because he could not perform in the lit space, or simply
to avoid the hard paved surface while kneeling on
the ground.
Under the deficient instruction, however, the jury
effectively was compelled to conclude that the peti-
tioner committed kidnapping in the first degree once
it credited K’s account. See footnotes 1 and 5 of this
opinion. With the proper instruction, the jury would
have to consider whether the state had proved beyond
a reasonable doubt that the petitioner’s intention in
committing these actions had sufficient independent
significance from his intention to commit the sexual
assault as to warrant a conviction of kidnapping in
the first degree. The aforementioned facts provided a
logical basis for it to conclude that they did not. There-
fore, the state could not prove that the omission of the
Salamon instruction was harmless beyond a reasonable
doubt. Accordingly, the petitioner is entitled to relief
under our established harmless error standard.
We note that this court has not had the occasion to
consider whether, even in the absence of procedural
default, a more stringent standard of harm should apply
in collateral proceedings. In Brecht v. Abrahamson,
supra, 507 U.S. 623, a bare majority of the United States
Supreme Court departed from its history of more than
200 years of parity between direct appeals and habeas
corpus proceedings for constitutional claims. See R.
Hertz & J. Liebman, 2 Federal Habeas Corpus Practice
and Procedure (6th Ed. 2011) § 31.1, pp. 1679–80. Citing
federalism, comity, finality and other prudential consid-
erations, the court determined that habeas proceedings
require a standard that imposes a less stringent burden
on the state when the constitutional error is not struc-
tural. Brecht v. Abrahamson, supra, 634 (‘‘an error that
may justify reversal on direct appeal will not necessarily
support a collateral attack on a final judgment’’ [internal
quotation marks omitted]); see also id., 643 (Stevens,
J., concurring). The court in Brecht determined that the
same standard for determining whether habeas relief
must be granted for nonconstitutional error applies,
namely, whether the error ‘‘had substantial and injuri-
ous effect or influence in determining the jury’s ver-
dict.’’ (Internal quotation marks omitted.) Id., 637. ‘‘The
determinative consideration . . . is not the strength of
the evidence or the probability of conviction at a hypo-
thetical retrial absent the error. Rather, the relevant
question is whether the error substantially affected the
actual thinking of the jurors or the deliberative pro-
cesses by which they reached their verdict.’’ (Footnote
omitted.) R. Hertz & J. Liebman, supra, § 31.4 [d], p.
1720. Because the state bears the burden of proof,
‘‘where the record is so evenly balanced that a conscien-
tious judge is in grave doubt as to the harmlessness of
an error,’’ the petitioner must win. O’Neal v. McAninch,
513 U.S. 432, 437, 115 S. Ct. 992, 130 L. Ed. 2d 947
(1995); see id., 438 (‘‘The inquiry cannot be merely
whether there was enough to support the result, apart
from the phase affected by the error. It is rather, even
so, whether the error itself had substantial influence.
If so, or if one is left in grave doubt, the conviction
cannot stand.’’ [Emphasis omitted; internal quotation
marks omitted.]).
Brecht and its progeny have raised numerous ques-
tions as to the precise standard to be applied in
determining whether a particular type of error is harm-
less, and what degree of certainty as to whether that
standard has been met.16 See Peck v. United States, 102
F.3d 1319, 1320 (2d Cir. 1996) (Newman, C. J., concur-
ring) (attempting ‘‘to identify and illuminate uncertain-
ties that have been created by the way the [United
States] Supreme Court has explicated its recent harm-
less error jurisprudence in the context of constitutional
errors’’ as to these questions); R. Hertz & J. Liebman,
supra, § 31.4 [a], p. 1708 (citing questions left open by
Brecht and its progeny). Some courts, like the Second
Circuit, have decided that the Brecht harmless error
standard serves as the actual prejudice component for
excusing procedurally defaulted claims, thus similarly
analyzing defaulted and nondefaulted claims. See Peck
v. United States, 106 F.3d 450, 456–57 (2d Cir. 1997)
(citing cause and actual prejudice procedural default
standard from United States v. Frady, supra, 456 U.S.
167–68, but applying standard in Brecht of ‘‘ ‘substantial
and injurious effect or influence in determining the
jury’s verdict’ ’’ as actual prejudice standard). We need
not decide in the present case whether to enter the fray
by adopting the standard in Brecht and the uncertainties
that accompany it. Nevertheless, because the dissenting
justices’ conclusion that the petitioner is not entitled
to a new trial due to his failure to establish the actual
prejudice to overcome a procedurally defaulted claim
appears to signal a retreat from our holdings in Salamon
and Luurtsema II, we take this opportunity to explain
why the petitioner would prevail even under the more
stringent standard applied by the dissents.
This court has suggested that we would apply the
standard in United States v. Frady, supra, 456 U.S.
152, for the prejudice showing required to overcome
procedural default. See Johnson v. Commissioner of
Correction, supra, 285 Conn. 570–71; Valeriano v. Bron-
son, supra, 209 Conn. 84. Under Frady, the petitioner
‘‘must shoulder the burden of showing, not merely that
the errors at his trial created a possibility of prejudice,
but that they worked to his actual and substantial disad-
vantage, infecting his entire trial with error of constitu-
tional dimensions.’’ (Emphasis omitted.) United States
v. Frady, supra, 170. In applying that standard, the court
indicated that the petitioner would have to demonstrate
that, with the proper instruction, there was a ‘‘substan-
tial likelihood’’ that the jury would not have found the
petitioner guilty of the crime of which he was convicted.
Id., 172; see also United States v. Pettigrew, 346 F.3d
1139, 1144 (D.C. Cir. 2003) (equating substantial likeli-
hood standard in Frady to ‘‘reasonable probability that,
but for [the errors], the result of the proceeding would
have been different’’ [internal quotation marks omit-
ted]). Substantial likelihood or reasonable probability
does not require the petitioner to demonstrate that the
jury more likely than not would have acquitted him had
it properly been instructed. See Strickler v. Greene, 527
U.S. 263, 280, 297–98, 119 S. Ct. 1936, 144 L. Ed. 2d 286
(1999) (Souter, J., concurring in part and dissenting in
part) (agreeing with majority that ‘‘ ‘reasonable proba-
bility’ ’’ under Brady17 does not require defendant to
show that different result is more likely than not, but
suggesting that, because term is misleading, ‘‘ ‘signifi-
cant possibility’ would do better at capturing the degree
to which the undisclosed evidence would place the
actual result in question, sufficient to warrant overturn-
ing a conviction or sentence’’); United States v. Hernan-
dez, 94 F.3d 606, 610 (10th Cir. 1996) (‘‘[t]here appears
to be little or no difference in the operation of the
‘materiality’ [Brady] and ‘prejudice’ [Frady] tests’’);
People v. Versteeg, 165 P.3d 760, 765 (Colo. App. 2006)
(‘‘[A] showing of actual prejudice under Frady generally
depends on an inference that the error affected the
outcome. This is the same showing of prejudice that
is required for Strickland or Brady errors.’’ [Internal
quotation marks omitted.]). ‘‘A reasonable probability
is a probability sufficient to undermine confidence in
the outcome.’’ Strickland v. Washington, 466 U.S. 668,
694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
As even the dissenting justices purportedly concede
in the present case, this standard does not require the
petitioner to show that there was insufficient evidence
to convict him under Salamon to prevail. Insufficient
evidence would require the petitioner to meet an even
higher standard than the inapplicable more probable
than not standard. See State v. Bennett, 307 Conn. 758,
763, 59 A.3d 221 (2013) (‘‘[i]n reviewing a sufficiency
of the evidence claim, we construe the evidence in the
light most favorable to sustaining the verdict, and then
determine whether from the facts so construed and the
inferences reasonably drawn therefrom, the trier of fact
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt’’). A recent decision, however, in which this
court concluded that it was a ‘‘close case’’ under that
higher standard, illustrates why there is a substantial
likelihood that a properly charged jury would not have
convicted the petitioner. See State v. Ward, 306 Conn.
718, 736, 51 A.3d 970 (2012). In Ward, this court
reviewed a trial court’s judgment setting aside a verdict
finding the defendant guilty of kidnapping but leaving
the defendant’s sexual assault conviction intact, which
required the court to view the evidence in the light most
favorable to supporting the jury’s verdict. Id., 729–30.
In reversing the trial court’s judgment, this court
explained: ‘‘Although this is a close case, we conclude
that the jury, which had been instructed on the applica-
ble legal principles in accordance with Salamon, rea-
sonably could have found that the defendant’s
confinement or movement of the victim was not merely
incidental to the sexual assault. The victim, who
weighed a mere 100 pounds, testified that she could
not escape because the defendant was twice her size
and held her very tightly. By moving the victim away
from the kitchen door, the defendant made the possibil-
ity of escape even more remote. From this testimony,
it was reasonable for the jury to conclude that the
defendant could have sexually assaulted the victim
without threatening to kill her and without continuously
holding the knife sharpening tool to her neck and, there-
fore, that the force used by the defendant exceeded the
amount necessary to commit the sexual assault. It was
also reasonable to infer that the defendant, by engaging
in this conduct, intended to frighten and subdue the
victim to prevent her from struggling, trying to escape
or summoning assistance. In light of the evidence, the
jury also reasonably could have concluded that the
defendant increased the risk of harm to the victim by
holding the pointed metal knife sharpening tool to her
neck and by moving her away from the kitchen door,
which not only made it less likely that she would escape,
but also made it less likely that the crime would be
detected. . . . Moreover, given the disparity in size and
strength between the defendant and the victim, it was
reasonable for the jury to conclude that the defendant
did not need to move the victim from the kitchen in
order to sexually assault her. If he intended to move
her to a location that was more comfortable for him,
he could have quickly moved her to the bedroom and
onto the bed. Instead, he moved her from the kitchen
to the bedroom, and ultimately onto the floor. Finally,
although the incident lasted ten to fifteen minutes, the
sexual assault itself lasted only two minutes.’’ (Citation
omitted; footnote omitted.) Id., 736–37.
By contrast, in the present case, the petitioner’s
actions preceding the sexual assault appear to have
taken seconds. He released K as soon as he completed
the sexual assault. Although the asportation of K to a
darker spot could help avoid detection, a jury reason-
ably could conclude that the petitioner had moved K
from the parking lot to the nearby grass for his comfort.
Her ability to escape was not diminished by moving
her to the grass by the bush because this placed K
closer to an occupied residence. The petitioner used
no weapon to threaten K and thus did not increase the
risk of harm to her on that basis. Except for the brief
moment when the petitioner placed his hand over K’s
mouth, her physical ability to summon help was
impaired solely due to the nature of the sexual assault.
If the facts of Ward present a close case as to whether
there was sufficient evidence to support a kidnapping
conviction, then the facts in the present case would
clearly undermine confidence in the petitioner’s convic-
tion due to the omission of a Salamon instruction.
The cases cited by the dissenting justices in support
of their position all involve determinations of sufficient
evidence to support a kidnapping conviction, not deter-
minations of substantial likelihood of actual prejudice.
Unlike Ward, however, the cases cited from other juris-
dictions are not particularly persuasive because,
although they consider a similar legal standard to ours,
they give no indication of whether the evidence was
merely sufficient or well in excess of that necessary to
convict. Indeed, the fact that these cases involved far
longer periods of restraint, far greater distances of
asportation, continued restraint after completion of the
nonkidnapping offenses, or numerous, distinct acts of
restraint and asportation demonstrates why the present
case is sufficiently close to require a new trial. See
Yearty v. State, 805 P.2d 987, 993 (Alaska App. 1991)
(defendant’s restraint of victim ‘‘went significantly
beyond that which was merely incidental to the sexual
assault’’ when defendant pulled victim off of bike path,
‘‘dragged him to a secluded area several hundred feet
away, and there held him captive for almost an hour’’);
State v. Gordon, 161 Ariz. 308, 315–16, 778 P.2d 1204
(1989) (The ‘‘[d]efendant went beyond the restraint [kid-
napping] inherent in the ultimate crime [of sexual
assault]—he held the victim on the floor, hit her with
his fists, and strangled her. Thus, the manner in which
he committed the kidnapping added to the victim’s suf-
fering and increased her harm or risk of harm beyond
that inherent in the ultimate crime.’’); Lee v. State, 326
Ark. 529, 531, 932 S.W.2d 756 (1996) (defendant fol-
lowed victim, grabbed her around her neck while she
was on public sidewalk, and ‘‘dragged her approxi-
mately one city block to the back of the school building
where there was no light,’’ where he raped her); People
v. Robertson, 208 Cal. App. 4th 965, 973, 146 Cal. Rptr.
3d 66 (2012) (defendant ordered victim to enter dark
garage, locked door with key, grabbed victim from
behind, and ordered her to walk toward front of garage
where large tub full of water was located; when victim
refused, defendant pushed her forward toward tub and
ordered her to lie down; victim did not scream or strug-
gle when defendant sexually assaulted her near tub
because she was afraid that defendant would throw her
in tub and drown her); People v. Johnson, 26 N.E.3d
586, 589–90 (Ill. App.) (defendant forcibly moved victim
from sidewalk to vacant lot, where he completed sexual
act before moving her across alley to area between two
garages where he raped her twice), appeal denied, 39
N.E.3d 1007 (Ill. 2015).
The cases from this court cited by the dissenting
justices yield even less support. See State v. Sansever-
ino, supra, 291 Conn. 574; State v. DeJesus, 288 Conn.
418, 953 A.2d 45 (2008). Those cases involved direct
appeals reviewing verdicts rendered in the absence of
a Salamon instruction. In both cases, it seemed unlikely
that the state had sufficient evidence to prevail on retrial
but the court thought it appropriate to afford the state
the opportunity to marshal additional evidence in sup-
port of the new standard. See State v. Sanseverino,
supra, 584–85; State v. DeJesus, supra, 439 (ordering
new trial because ‘‘any insufficiency in proof was
caused by the subsequent change in the law under Sala-
mon, rather than the government’s failure to muster
sufficient evidence’’). In State v. Salamon, supra, 287
Conn. 549–50, the court concluded that it could not say
that the defendant’s restraint of the victim necessarily
was incidental to his assault of the victim, and thus it
was a factual question for a properly instructed jury.18
The dissenting justices reliance on these cases is trou-
bling insofar as it suggests that they view Salamon
as inapplicable to cases in which even the slightest
movement or restraint of the victim beyond that which
is absolutely essential to the commission of the nonkid-
napping offense is established.
The cases cited by the dissenting justices indicate
that they have failed to give meaningful effect to three
critical, related aspects of the holding in Salamon. First,
by focusing solely on whether there was any restraint
or asportation beyond that necessary for the commis-
sion of the sexual assault, the dissenting justices ignore
the ‘‘incidental to’’ language in Salamon. See State v.
Salamon, supra, 287 Conn. 542 (‘‘merely incidental to
and necessary for the commission of another crime
against that victim’’); accord id., 547. Restraint may be
incidental to a sexual assault that is not necessary for
its commission. Second, the dissenting justices give no
meaningful effect to the requirement that the additional
restraint or asportation have ‘‘independent criminal sig-
nificance . . . .’’ Id., 547. The court in Salamon indi-
cated that unlawful restraint, not kidnapping, would be
the proper charge in the absence of such independent
significance. See id., 548 (‘‘because the confinement or
movement of a victim that occurs simultaneously with
or incidental to the commission of another crime ordi-
narily will constitute a substantial interference with that
victim’s liberty, such restraints still may be prosecuted
under the unlawful restraint statutes’’); see also id., 546
(indicating alignment of interpretation in Salamon with
‘‘majority view regarding the construction of statutes
delineating the crime of kidnapping . . . the salutary
effect of which is to prevent the prosecution of a defen-
dant on a kidnapping charge in order to expose him to
the heavier penalty thereby made available, [when] 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’’ [citations omitted; internal quota-
tion marks omitted]).
Finally, and related to the two preceding concerns,
the dissenting justices do not recognize that the degree
and nature of the restraint or asportation bears on the
ultimate question—the perpetrator’s intent in taking
these actions. See id., 532 (‘‘the proper inquiry for a
jury evaluating a kidnapping charge is not whether the
confinement or movement of the victim was minimal
or incidental to another offense against the victim but,
rather, whether it was accomplished with the requisite
intent, that is, to prevent the victim’s liberation’’
[emphasis added]); id., 542 (‘‘[o]ur legislature, in replac-
ing a single, broadly worded kidnapping provision with
a gradated scheme that distinguishes kidnappings
from unlawful restraints by the presence of an intent
to prevent a victim’s liberation, intended to exclude
from the scope of the more serious crime of kidnapping
and its accompanying severe penalties those confine-
ments or movements of a victim that are merely inciden-
tal to and necessary for the commission of another
crime against that victim’’ [emphasis added]). Indeed,
it was the ambiguity in the distinction between the
intent to commit a kidnapping and the intent to commit
an unlawful restraint that was at the heart of the analysis
in Salamon. See id., 534 (‘‘Those previous decisions [by
our court] . . . have not explored the parameters of
that intent, in particular, how the ‘intent to prevent [a
victim’s] liberation’; General Statutes § 53a-91 (2); that
is, the intent necessary to establish an abduction, differs
from the intent ‘to interfere substantially with [a vic-
tim’s] liberty’; General Statutes § 53a-91 (1); that is, the
intent necessary to establish a restraint. Certainly, when
an individual intends to interfere substantially with
another person’s liberty, he also intends to keep that
person from escaping, at least for some period of time;
in other words, he intends to prevent that person’s
liberation. Thus, the point at which an intended interfer-
ence with liberty crosses the line to become an intended
prevention of liberation is not entirely clear.’’). Although
the perpetrator’s conduct is circumstantial evidence
from which the jury infers such intent; see State v.
Smith, 198 Conn. 147, 154–55, 502 A.2d 874 (1985); it
is the degree and nature of the restraint or asportation
that informs that inference.
Although we underscore that a determination of suffi-
cient evidence to support a kidnapping conviction is
not the appropriate yardstick by which to assess the
likelihood of a different result, we note a recent decision
by Judge Mullins that reflects a more nuanced and
appropriate comparison of cases with regard to these
essential aspects of Salamon. See Mitchell v. Warden,
Superior Court, judicial district of Tolland, Docket No.
CV-10-4003542-S (February 27, 2014) (57 Conn. L. Rptr.
776). ‘‘Although no minimum period of restraint or
degree of movement is necessary for the crime of kid-
napping, 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 harm-
less 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, [129
Conn. App. 215, 222–23, 19 A.3d 241 (2011)] (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) [cert. denied,
302 Conn. 910, 23 A.3d 1248 (2011)]; State v. Strong,
[122 Conn. App. 131, 143, 999 A.2d 765] (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) [cert.
denied, 298 Conn. 907, 3 A.3d 73 (2010)]; and State v.
Nelson, [118 Conn. App. 831, 860–62, 986 A.2d 311]
(harmless error when defendant completed assault and
then for several hours drove victim to several locations)
[cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010)].
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 substan-
tive crime. The failure to give a proper Salamon instruc-
tion in those scenarios is more likely to result in harmful
error precisely because of the difficulty in determining
whether each crime has independent criminal signifi-
cance. See State v. Thompson, [118 Conn. App. 140, 162,
983 A.2d 20 (2009)] (within fifteen minutes defendant
entered victim’s car, pushed her behind a building and
sexually assaulted her) [cert. denied, 294 Conn. 932,
986 A.2d 1057 (2010)]; State v. Flores, [301 Conn. 77,
89, 17 A.3d 1025 (2011)] (defendant’s robbery of victim
in her bedroom lasted between five and twenty
minutes); State v. Gary, [120 Conn. App. 592, 611, 992
A.2d 1178] (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 inciden-
tal to the commission of other crimes, namely, sexual
assaults and attempted sexual assault; lack of Salamon
instruction harmful error) [cert. denied, 297 Conn. 910,
995 A.2d 637 (2010)].’’ Mitchell v. Warden, supra, 57
Conn. L. Rptr. 781–82.
This discussion effectively illustrates why the peti-
tioner’s claim would succeed even under the more strin-
gent prejudice standard for procedurally defaulted
claims. The close alignment in time and place of K’s
restraint and abduction to the sexual assault calls into
serious question whether reasonable jurors would con-
clude that the petitioner intended to restrain K for any
purpose other than the commission of the sexual
assault. Accordingly, there is a substantial likelihood
that reasonable jurors would conclude that the state
failed to meet its burden of proving beyond a reasonable
doubt that the conduct had sufficient independent sig-
nificance to warrant a conviction of kidnapping in the
first degree. Accordingly, the Appellate Court properly
concluded that the habeas court’s judgment should be
affirmed insofar as it granted the petitioner a new trial
on his kidnapping conviction.
II
We turn next to the petitioner’s appeal, which chal-
lenges the Appellate Court’s determination that a claim
of cumulative trial error as a violation of due process
is not cognizable under Connecticut law. See Hinds v.
Commissioner of Correction, supra, 151 Conn. App.
860, citing State v. Samuels, 273 Conn. 541, 562, 871
A.2d 1005 (2005), and State v. Reddick, 33 Conn. App.
311, 338–39, 635 A.2d 848 (1993), cert. denied, 228 Conn.
924, 638 A.2d 38 (1994). The petitioner contends that the
United States Supreme Court and every federal Circuit
Court of Appeals recognize that trial errors individually
insufficiently harmful to warrant a new trial may by
their cumulative effect deprive a defendant of a fair
trial in violation of his right to due process. He further
contends that Connecticut case law does not bar such
a claim, and would violate the supremacy clause of the
federal constitution if it did.
The respondent contends that this claim was proce-
durally defaulted due to the petitioner’s failure to raise
it in his direct appeal, and that the petitioner failed to
establish cause and prejudice to overcome the default.
The respondent alternatively contends that the failure
to recognize claims of cumulative error does not violate
due process under federal law, and even if such claims
were cognizable, the petitioner would not be entitled
to relief on this basis. We conclude that, even if we
were to recognize the cumulative error doctrine as artic-
ulated in the federal courts and to deem it applicable
to habeas proceedings, the trial improprieties in the
present case would not justify relief under that doctrine.
Federal case law in which the ‘‘ ‘cumulative
unfairness’ ’’ doctrine; United States v. Al-Moayad, 545
F.3d 139, 178 (2d Cir. 2008); has required reversal of a
conviction essentially seems to fall into one or more
of the following categories: (1) the errors directly
related to and impacted an identified right essential to
a fair trial, i.e., the right to a presumption of innocence
or the right to present witnesses in one’s own defense;
(2) at least one of the errors was so significant as to
render it highly doubtful that the defendant had
received a fair trial and the remaining errors created
the additional doubt necessary to establish that there
was serious doubt about the fairness of the trial, which
is necessary to reverse a conviction; or (3) the errors
were pervasive throughout the trial.19 The trial impropri-
eties identified in the petitioner’s direct appeal do not
fall within any of these categories.
The Appellate Court identified three improprieties.
First, it determined that the trial court improperly
admitted into evidence a photograph showing the peti-
tioner with his underwear pulled down around his
knees, with black tape covering the part of the photo-
graph showing his genitals, taken when the petitioner
was incarcerated. State v. Hinds, supra, 86 Conn. App.
572–74. The state had used this photograph to rebut the
petitioner’s misidentification theory premised in part on
testimony that he never wore underwear. Id., 572. The
Appellate Court determined that the photograph was
not probative because it had been taken two years after
the assault, but that its admission was harmless because
it was cumulative of testimony, admitted without objec-
tion, that the petitioner had been wearing underwear
when the photograph was taken. Id., 573–74. Second,
the Appellate Court determined that there was an insuf-
ficient evidentiary basis to support the consciousness
of guilt jury instruction regarding certain purportedly
false statements made by the petitioner during the
police investigation as to where he was staying and
how long he had been in town. Id., 563–68. The court
concluded that the statements were neither made in an
effort to exculpate the petitioner nor connected to the
crimes, but that the instruction was harmless given
the strength of the state’s case, in particular, the close
match of the victim’s description of her attacker and
his vehicle to the petitioner and his truck. Id., 568–69.
Third, the Appellate Court determined that the trial
court improperly had failed to give the jury a supple-
mental answer correcting its earlier inaccurate answer
to the jury’s question as to whether a witness had testi-
fied regarding the date and time on a security recording
of the Super Stop & Shop parking lot showing a vehicle
similar to the one identified by the victim. Id., 569–71.
The court deemed this error harmless because the cor-
rect information would have tended to inculpate the
petitioner. Id., 571.
The petitioner claims that ‘‘the combined effect of
[these improprieties] rendered [his] defense of misiden-
tification far less persuasive, in violation of the constitu-
tional right to a fair trial.’’ We are not persuaded that
improprieties of this magnitude present a colorable
basis for application of the cumulative error rule applied
by the federal courts. Therefore, we need not consider
whether our case law is in conflict with federal law.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER and
DiPENTIMA, Js., concurred.
* This appeal originally was argued before a panel of this court consisting
of Chief Justice Rogers, and Justices Palmer, Zarella, Eveleigh, McDonald
and Robinson. Thereafter, Chief Judge DiPentima was added to the panel
and she has read the briefs and listened to a recording of the oral argument
prior to participating in this decision.
1
General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the first degree when such person (1) compels
another person to engage in sexual intercourse by the use of force against
such other person . . . or by the threat of use of force against such other
person . . . which reasonably causes such person to fear physical injury
to such person . . . .’’
General Statutes § 53a-92 (a) 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 . . . .’’
2
We have omitted facts relevant to events that occurred after the petition-
er’s interactions with the victim, which provided additional support for the
petitioner’s convictions, as they are not relevant to our resolution of the
issues in this habeas action. See State v. Hinds, 86 Conn. App. 557, 559–63,
861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005).
3
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim. See General
Statutes § 54-86e.
4
Justice Zarella’s contention that ‘‘the parties have not raised the issue
of whether the rule should be replaced in their separate appeals to this
court’’ is beside the point. The petitioner does not make such a sweeping
argument, but instead argues that procedural default does not apply in this
case because, under Luurtsema II, there is no default of a Salamon claim.
If there is no default, there is no basis to engage in the cause and prejudice
analysis to determine whether procedural default is excused.
5
‘‘ ‘Abduct’ means to restrain a person with intent to prevent his liberation
by either (A) secreting or holding him in a place where he is not likely to
be found, or (B) using or threatening to use physical force or intimidation.’’
General Statutes § 53a-91 (2).
‘‘ ‘Restrain’ means to restrict a person’s movements intentionally and
unlawfully in such a manner as to interfere substantially with his liberty by
moving him from one place to another, or by confining him either in the
place where the restriction commences or in a place to which he has been
moved, without consent. . . .’’ General Statutes § 53a-91 (1).
6
Because we conclude that the petitioner’s Salamon claim is not subject
to procedural default, we need not consider the petitioner’s alternative
argument that the Appellate Court properly determined that he established
good cause to excuse any default under Reed v. Ross, 468 U.S. 1, 104 S. Ct.
2901, 82 L. Ed. 2d 1 (1984), in light of this court’s repeated rejection of a
Salamon type claim. In Reed, the United States Supreme Court identified
three situations in which a new constitutional rule might emerge from that
court, which, if applied retroactively, would result in a circumstance in
which counsel would have had no reasonable basis in existing law to seek
habeas relief. Id., 17. One such situation was that court’s overruling of its
precedent. Id. The court reasoned that, in that situation, ‘‘the failure of a
defendant’s attorney to have pressed such a claim before a state court is
sufficiently excusable to satisfy the cause requirement.’’ Id. Subsequent case
law has raised questions about the scope of this good cause exception. See,
e.g., Bousley v. United States, 523 U.S. 614, 622–23, 118 S. Ct. 1604, 140 L.
Ed. 2d 828 (1998) (distinguishing novel claims from futile claims); Engle v.
Isaac, 456 U.S. 107, 130–34, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982) (same);
but see Peck v. United States, 106 F.3d 450, 456 (2d Cir. 1997) (concluding
that petitioner ‘‘demonstrated ‘cause’ for his failure to pursue on direct
appeal his contention of instructional error because this court had defini-
tively resolved the question as to the proper jury instruction regarding
scienter and the Supreme Court had not agreed to review the issue prior
to the deadline for [the petitioner] to file an appeal’’). Neither Bousley nor
Engle, however, involved claims that would have required the United States
dents. Justice Zarella’s dissenting opinion does not, in our view, fairly address
the question of whether three decades of precedent from the highest
reviewing court renders a legal argument challenging that precedent not
merely futile, but one for which the petitioner would have no reasonable
basis in existing law, even if the claim cannot be deemed ‘‘novel’’ because
it previously has been raised in some form. In light of our resolution of this
appeal on different grounds, we leave those questions for another day.
7
The respondent and Justice Zarella argue that Luurtsema II has no
precedential value because the main opinion, to which we refer, was a
plurality decision, and there were three separate concurring opinions. Justice
Katz’ concurring opinion rested on due process, rather than common-law
grounds, but she expressly addressed the ground on which the plurality
rested its decision and stated: ‘‘I wholly agree with the plurality’s thoughtful
explanation as to why we should reject the state’s call to adopt a per se
rule against retroactivity and its equally persuasive rejection of the state’s
arguments against affording relief to the petitioner in the present case.’’
Luurtsema v. Commissioner of Correction, supra, 299 Conn. 791. Her sole
disagreement with the majority’s resolution of that issue was its recognition
of the possibility of unusual circumstances in which retroactivity would not
apply. Id. Thus, a majority of the court rejected the state’s policy arguments
relating to finality.
8
We are mindful that federal courts have concluded that procedural
default will bar application of a retroactive holding. See, e.g., Ilori v. United
States, 198 Fed. Appx. 543, 545 (7th Cir. 2006); United States v. McCrimmon,
443 F.3d 454, 462 n.44 (5th Cir. 2006); United States v. Pettigrew, 346 F.3d
1139, 1143–45 (D.C. Cir. 2003); see also Bousley v. United States, 523 U.S.
614, 620, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998) (deeming court’s
limiting interpretation of criminal statute not barred by retroactivity princi-
ples but barred by procedural default). As we previously have explained,
federal habeas review is constrained by statutory, constitutional, and pruden-
tial considerations other than finality of judgments. We also note that the
court’s retroactivity analysis in Luurtsema II was not premised on federal
retroactivity or constitutional jurisprudence. Instead, it relied exclusively
on state common law.
9
Luurtsema’s challenge to his jury instruction on direct appeal was
acknowledged in the context of providing background to the case and the
law leading up to Salamon, its sole significance being that Luurtsema’s
criminal case was the most recent occasion on which the court had reiterated
its long-standing interpretation of kidnapping. See Luurtsema v. Commis-
sioner of Correction, supra, 299 Conn. 745–46. This challenge was never
mentioned in the retroactivity analysis. See id., 751–73. This omission was
not an oversight. The court later mentioned this fact in a different part of
the opinion when summarily rejecting Luurtsema’s argument that he should
not have to face retrial because he had challenged his jury instruction at
trial. Id., 774.
10
It does not appear from our review that any of these petitions were
advanced by petitioners who had challenged their kidnapping instructions in
their criminal proceedings. See Luurtsema v. Commissioner of Correction,
Conn. Supreme Court Records & Briefs, September Term, 2010, State’s Brief
pp. 3–4 n.2.
11
State v. Sanseverino, supra, 291 Conn. 579, 595, which superseded in
part State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), was a
companion case to Salamon in which this court applied the holding in
Salamon without reaching the constitutional vagueness challenge raised by
the defendant.
12
See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
13
In his dissent, Justice Eveleigh concludes that ‘‘the kidnapping had
already occurred when [K] was restrained and knocked down in the parking
lot.’’ It is difficult to imagine how a sexual assault can be perpetrated without
grabbing the victim, and the feasibility of accomplishing a sexual assault
while the victim and the perpetrator are standing in the middle of a parking
lot seems rather remote.
14
Although the evidence did not establish a precise distance or time,
because such facts would not have been significant in the absence of a
Salamon instruction, the most reasonable inference from the numerous
photographic exhibits and K’s testimony is that the distance and time of
the asportation were minimal. Put differently, it would be unreasonable to
infer from the evidence that the asportation took minutes rather than
seconds.
 15
By concluding that the asportation did not create a significant danger
or increase K’s risk of harm independent of that posed by the sexual assault,
we do not intend to diminish the fact that K’s fear of suffering harm was
likely made greater by having been moved from a lit spot to one where it
was dark.
16
Justice Scalia’s concurrence in California v. Roy, 519 U.S. 2, 6, 117 S.
Ct. 337, 136 L. Ed. 2d 266 (1996), joined by Justice Ginsburg, appears to
have sown some of the seeds of confusion. See id., 6, 7 (Scalia, J., concurring)
(The concurring justices agreed that the standard in Brecht applied in a
habeas case but concluded with respect to instructional error: ‘‘A jury verdict
that [a criminal defendant] is guilty of the crime means, of course, a verdict
that he is guilty of each necessary element of the crime. . . . Formally, at
least, such a verdict did not exist here: The jury was never asked to determine
that [the defendant] had the ‘intent or purpose of committing, encouraging,
or facilitating’ his confederate’s crime. . . . The absence of a formal verdict
on this point cannot be rendered harmless by the fact that, given the evi-
dence, no reasonable jury would have found otherwise. To allow the error
to be cured in that fashion would be to dispense with trial by jury. . . .
The error in the present case can be harmless only if the jury verdict on
other points effectively embraces this one or if it is impossible, upon the
evidence, to have found what the verdict did find without finding this
point as well.’’ [Citations omitted; emphasis altered.]). Some courts have
relied on this concurrence as providing a functional equivalent test for an
omitted element in a jury instruction. See, e.g., United States v. McDonald,
150 F.3d 1301, 1304 (10th Cir. 1998); Smith v. Horn, 120 F.3d 400, 418 (3d
Cir. 1997).
17
See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963) (state’s suppression of material, exculpatory evidence).
18
The court noted: ‘‘The victim testified that the defendant, after accosting
her, forcibly held her down for five minutes or more. Although the defendant
punched the victim once and shoved his fingers into her mouth, that conduct
was very brief in contrast to the extended duration of the defendant’s
restraint of the victim. In light of the evidence, moreover, a juror reasonably
could find that the defendant pulled the victim to the ground primarily for
the purpose of restraining her, and that he struck her and put his fingers
in her mouth in an effort to subdue her and to prevent her from screaming
for help so that she could not escape. In such circumstances, we cannot
say that the defendant’s restraint of the victim necessarily was incidental
to his assault of the victim. Whether the defendant’s conduct constituted a
kidnapping, therefore, is a factual question for determination by a properly
instructed jury.’’ (Emphasis added; footnote omitted.) State v. Salamon,
supra, 287 Conn. 549–50.
19
See, e.g., Chambers v. Mississippi, 410 U.S. 284, 297–303, 93 S. Ct. 1038,
35 L. Ed. 2d 297 (1973) (application of state rules violated right of accused
to present witnesses in his own defense, in combination with right to present
defense); Taylor v. Kentucky, 436 U.S. 478, 486–90, 98 S. Ct. 1930, 56 L.
Ed. 2d 468 (1978) (instructional errors impaired right to presumption of
innocence); United States v. Haynes, 729 F.3d 178, 197 (2d Cir. 2013) (defen-
dant was improperly tried in shackles, trial court did not fulfill its obligation
to investigate allegation of juror misconduct, court gave improper jury charge
regarding obligations of deadlocked jury regarding further deliberations,
and lay and expert testimony was erroneously admitted, all occurring in
context of relatively short trial during which jury deliberated for approxi-
mately eight hours before returning deadlock note, ‘‘when considered
together . . . call into serious doubt whether the defendant received the
due process guarantee of fundamental fairness’’); United States v. Al-
Moayad, supra, 545 F.3d 178 (The improper admission of certain documen-
tary evidence and the testimony of two witnesses ‘‘ ‘cast such a serious
doubt on the fairness of the trial’ as to warrant reversal of the defendants’
convictions. That doubt is especially grave when we also take into account
the district court’s erroneous admission of the mujahidin form, the wedding
video, and the Croatian last will and testament, as well as its questionable
handling of the derivative entrapment issue.’’); Gaines v. Kelly, 202 F.3d
598, 605–606 (2d Cir. 2000) (cumulative effect of instructional errors
impaired right to have state prove elements of offense beyond reasonable
doubt); United States v. Fields, 466 F.2d 119, 120–21 (2d Cir. 1972) (cumula-
tive effect of instructional errors impaired right to have state prove each
element of offense beyond reasonable doubt); United States v. Guglielmini,
384 F.2d 602, 605–607 (2d Cir. 1967) (total effect of errors, including trial
judge’s conduct suggesting bias in favor of prosecution created ‘‘firm impres-
sion that the defendants did not receive the fair trial to which our law entitles
them,’’ bolstered by prosecutorial improprieties in cross-examination and
argument, as well as improper reasonable doubt charge cast serious doubt
on fairness of trial).
We note that, to the extent that some of these cases involve multiple
defects in a jury charge relating to the same concern; see, e.g., Taylor v.
Kentucky, supra, 436 U.S. 486–90; Gaines v. Kelly, supra, 202 F.3d 605–606;
we question whether they should be characterized as involving cumulative
error rather than simply an improper jury charge on a matter.