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BELL v. COMMISSIONER OF CORRECTION—FIRST CONCURRENCE
D’AURIA, J., concurring. I concur in the result because
I agree with the majority that the lack of an instruction
pursuant to State v. Salamon, 287 Conn. 509, 949 A.2d
1092 (2008), was not harmless. As in my concurrence
in the companion case we also decided today; see Banks
v. Commissioner of Correction, 339 Conn. 1, 56,
A.3d (2021) (D’Auria, J., concurring); which I
hereby incorporate by reference, however, I do not
agree with the standard that the majority adopts for
determining harmless error. The majority determines
that, when a petitioner seeking habeas relief establishes
a Salamon error, the habeas court must assess the harm
of that error according to the legal standard that the
United States Supreme Court articulated in Brecht v.
Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 123 L.
Ed. 2d 353 (1993) (new trial mandated if instructional
error ‘‘had [a] substantial and injurious effect or influ-
ence in determining the jury’s verdict’’ (internal quota-
tion marks omitted)), rather than the more petitioner
friendly standard that the high court adopted in Neder
v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L.
Ed. 2d 35 (1999) (new trial required if it is ‘‘clear beyond
a reasonable doubt that a rational jury would have found
the defendant guilty absent the [instructional] error’’).
As I discussed in detail in my concurrence in Banks, I
take issue with the majority’s holding for two reasons.
First, because I believe that the merits of this case
would be the same under either standard,1 I do not
believe that this court needs to—or should—determine
which standard applies, especially as it is unclear how
many, if any, future cases this standard will apply to.
Second, I believe that the Neder standard is the proper
standard. Accordingly, I respectfully concur.
1
Assuming that the majority is correct that the Brecht standard is the
proper standard, I agree with the majority that the petitioner would prevail
on his Salamon claim. Additionally, assuming that I am correct that the
Neder standard is the proper standard, I agree fully with the Appellate Court
majority’s thorough and well reasoned opinion that the absence of a Salamon
instruction was not harmless beyond a reasonable doubt under the Neder
standard. See Bell v. Commissioner of Correction, 184 Conn. App. 150, 158
n.6, 172, 194 A.3d 809 (2018), aff’d, 339 Conn. 79, A.3d (2021).