Banks v. Commissioner of Correction

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 MARK BANKS v. COMMISSIONER
OF CORRECTION
(SC 20222)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*

Syllabus

In accordance with this court’s decision in State v. Salamon (287 Conn.
509), when a criminal defendant is charged with kidnapping in conjunc-
tion with another underlying crime, such as robbery, the jury must be
instructed that the defendant cannot be convicted of kidnapping if the
restraint imposed on the victim was merely incidental to the commission
of that underlying crime.
The petitioner, who had been convicted of multiple counts of kidnapping
in the first degree and robbery in the first degree in connection with
armed robberies at two separate retail stores, sought a writ of habeas
corpus, claiming that his due process right to a fair trial under the
fifth and fourteenth amendments to the United States constitution was
violated. In each armed robbery, after the petitioner obtained money
from his victims, he forced them at gunpoint into the store’s bathroom
and attempted to jam the bathroom door shut. The victims remained
inside of the bathroom for only a few minutes, exiting once they believed
that the petitioner left the store. Following this court’s determination
that Salamon, which had been decided more than ten years after the
petitioner’s trial, applied retroactively in habeas actions, the petitioner
challenged his kidnapping convictions on the ground that the jury
instructions at his criminal trial were not in accordance with the require-
ments set forth in Salamon. The habeas court denied the petitioner’s
habeas petition, concluding that the respondent, the Commissioner of
Correction, had demonstrated that the absence of a Salamon instruction
was harmless error. On the granting of certification, the petitioner
appealed to the Appellate Court, which reversed the habeas court’s
judgment. The Appellate Court concluded that a jury reasonably could
have found that the petitioner’s movement and restraint of the victims
were part of a continuous, uninterrupted course of conduct related to
the robberies. The Appellate Court applied the harmless error standard
set forth in Neder v. United States (527 U.S. 1) in determining that the
absence of a Salamon instruction was not harmless beyond a reasonable
doubt. On the granting of certification, the respondent appealed to this
court. Held:
1. The standard articulated in Brecht v. Abrahamson (507 U.S. 619), which
requires a new trial only if the instructional error had a substantial and
injurious effect or influence in determining the jury’s verdict, applies
to Salamon claims raised in habeas proceedings: contrary to the petition-
er’s assertion that stare decisis required the application of the Neder
standard, this court had not previously resolved the question of which
standard applied to Salamon errors on collateral review; moreover,
the Brecht standard provided the proper harmless error standard for
Salamon errors in habeas actions, as it was consistent with the handling
of other claims of error in habeas proceedings by both this court and
the federal courts, a number of sister state courts had adopted that
standard for the collateral review of constitutional errors, and it afforded
a habeas petitioner significant protection, requiring a new trial unless
the reviewing court has confidence that a properly instructed jury would
have found the petitioner guilty beyond a reasonable doubt; furthermore,
two of the principal rationales for applying a different harm standard
(the Brecht standard) to constitutional errors in habeas actions than the
harm standard applied to constitutional errors raised on direct appeal,
namely, the finality of judgments and the extraordinary nature of the
habeas remedy, applied equally to state and federal habeas proceedings,
the United States Supreme Court previously had rejected the petitioner’s
claim that the rule preventing a trial court from directing a guilty verdict
prohibited a reviewing court from finding that a Salamon error was
harmless when the evidence presented at trial compelled such a conclu-
 sion, the Brecht standard was not so vague as to be difficult to apply,
and the application of the Brecht standard would not be unfair to the
petitioner but, rather, would strike a balance between bestowing a wind-
fall on the petitioner and penalizing him for failing to anticipate this
court’s reinterpretation of this state’s kidnapping statutes.
2. The habeas court correctly determined that the trial court’s failure to
instruct the jury at the petitioner’s criminal trial in accordance with
Salamon was harmless because it did not give rise to a risk of prejudice
sufficient to undermine confidence in the verdict, and, accordingly, the
Appellate Court’s judgment was reversed: under Salamon, the jury,
having found abduction, restraint, and the criminal intent associated
therewith, necessarily had to find the petitioner guilty of kidnapping
under the applicable statute (§ 53a-92 (a) (2) (B)) unless it found that
the restraint and associated criminal intent were limited to that inherent
in the robberies; moreover, even though the petitioner did not move his
victims a great distance or restrain them for a long period of time, the
jury could not reasonably have found that the asportation and restraint
were limited to that which was necessary to carry out the robberies,
as the actions occurred after the objective of each robbery had been
completed, were conducted in order to make it more difficult for the
victims to summon assistance and to reduce the petitioner’s risk of
detection, and subjected the victims to unique risks and harms, both
physical and psychological, beyond those inherent in the robberies them-
selves.
(Three justices concurring separately in two opinions)
Argued December 16, 2019—officially released May 12, 2021**

Procedural History

Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to the Appellate
Court, DiPentima, C. J., and Prescott, J., with Keller, J.,
dissenting, which reversed the judgment of the habeas
court and remanded the case with direction to grant
the petition, and the respondent, on the granting of
certification, appealed to this court. Reversed; judg-
ment directed.
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
former state’s attorney, and Jo Anne Sulik, supervisory
assistant state’s attorney, for the appellant (respondent).
Pamela S. Nagy, assistant public defender, for the
appellee (petitioner).
 Opinion

PALMER, J. In this certified appeal and the compan-
ion case decided herewith; see Bell v. Commissioner
of Correction, 339 Conn. 79, A.3d (2021); we
again revisit our decision in State v. Salamon, 287 Conn.
509, 949 A.2d 1092 (2008), in which we overruled our
long-standing interpretation of this state’s kidnapping
statutes and held that, when a criminal defendant is
charged with kidnapping in conjunction with another
underlying crime, such as rape or assault, the jury must
be instructed that the defendant cannot be convicted
of kidnapping if the restraint imposed on the victim
was merely incidental to that underlying crime. See id.,
542–50. We now must resolve two questions left open
by Salamon and its progeny. First, when a petitioner
seeking habeas relief establishes a Salamon error, does
the habeas court 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 is mandated if instructional error ‘‘had [a] substan-
tial and injurious effect or influence in determining the
jury’s verdict’’ (internal quotation marks omitted)), or
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 is required
unless it is ‘‘clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty
absent the [instructional] error’’)? Second, did the
habeas court in the present case, in denying the habeas
petition of the petitioner, Mark Banks, and ruling in
favor of the respondent, the Commissioner of Correc-
tion, correctly conclude, as a matter of law, that a Sala-
mon error is harmless when a perpetrator forcibly
removes his victims from the scene of a robbery after
having taken their property and then restrains them in
order to facilitate his escape? Or, in the alternative, did
the Appellate Court, in reversing the judgment of the
habeas court, correctly conclude that the petitioner was
entitled to a new trial because a jury reasonably could
have found that the petitioner’s postrobbery movement
and restraint of his victims was merely incidental to
the underlying crimes and bore no independent criminal
significance? See Banks v. Commissioner of Correc-
tion, 184 Conn. App. 101, 131–32, 194 A.3d 780 (2018).
We conclude that the Brecht standard, which governs
federal habeas actions, applies in state habeas proceed-
ings as well.1 We further conclude that the habeas court
correctly determined that the trial court’s failure to
instruct the petitioner’s jury in accordance with Sala-
mon was harmless. Accordingly, we reverse the judg-
ment of the Appellate Court.
I
In 1995, the petitioner was arrested and charged in
connection with the armed robberies of two Bedding
Barn stores, the first in Newington and the second in
Southington. The two cases were consolidated and tried
jointly before a jury in October, 1997. The facts that
the jury reasonably could have found with respect to
both robberies are set forth by Judge (now Justice)
Keller in her dissent from the opinion of the Appellate
Court majority in the present case. See Banks v. Com-
missioner of Correction, supra, 184 Conn. App. 140–43
(Keller, J., dissenting). ‘‘With respect to the earlier of the
two robberies . . . Michael Kozlowski testified that he
was working at the Newington Bedding Barn on August
30, 1995, at about 9 p.m. As Kozlowski prepared to close
the store, the petitioner entered. Kozlowski testified
that he approached the petitioner with the belief that
the petitioner was a customer. When Kozlowski showed
the petitioner a king-size bed, the petitioner said, ‘let
me count my money,’ and reached into his bag and
produced a gun. Kozlowski testified that the petitioner
said, ‘[d]on’t try anything, I’ll bust you one, just walk
over to the register.’ The petitioner then told him to get
behind the counter and pointed his gun at Kozlowski’s
chest. Kozlowski testified that, after the petitioner took
the money from the cash register and a wallet from his
coworker, Howard Silk, ‘[the petitioner] moved [Koz-
lowski and Silk] . . . down to the hallway into the
bathroom and . . . he then put [them] into the bath-
room and put a mop handle or something behind the
door.’ Kozlowski testified that the petitioner, as they
walked down the hallway to the bathroom, said, ‘[d]on’t
try anything; I’ll blow your head off . . . .’ Kozlowski
indicated that, after the petitioner closed the bathroom
door and locked Kozlowski and Silk in there, ‘[they]
ducked down thinking he was going to shoot through
the door because it was only a piece of plywood, basi-
cally, and, [a] couple of minutes after, [they] heard a
bell, which [was] on the front door, [and which rings
whenever someone enters or leaves the store] . . . .
[They] then . . . kicked the door, basically, and
went downstairs.’
‘‘Silk testified that he also was working at the Newing-
ton Bedding Barn during the evening of August 30, 1995.
Silk stated that, as he was in the process of closing the
store, he noticed the petitioner following Kozlowski
toward the counter. As the petitioner and Kozlowski
approached, Silk realized that the petitioner was point-
ing a gun at Kozlowski’s back. Silk testified that the
petitioner told Kozlowski and Silk that he wanted the
money, so Kozlowski took the money from the register
as the petitioner pointed the gun at Silk’s chest. After
Silk told the petitioner that there was no safe inside
the store, the petitioner led Silk and Kozlowski toward
the back of the store at gunpoint. Silk testified that he
handed the petitioner the $17 in his wallet and then the
petitioner ‘proceeded to put [them] into the bathroom
area’ and attempted to jam the door with a mop handle.
Silk testified that he believed that the petitioner put
them in the bathroom so that he could escape and that,
after less than two minutes [possibly less than one
minute], he heard the bell ring that ‘goes off when [the
door] opens and . . . [he] hoped that [the bell had
rung] when [the petitioner] left.’ After waiting for thirty
seconds after hearing the doorbell ring, Silk and Koz-
lowski were easily able to open the bathroom door. Silk
testified that they went downstairs into the basement
of the building to the warehouse . . . to call 911 and
wait for the police to arrive in the event that the peti-
tioner was still on the first floor.
‘‘In the second case, Kelly Wright testified that she
was working at the Southington Bedding Barn on Sep-
tember 13, 1995. She recalled that, at 8:55 p.m., five
minutes before the store was set to close, while Wright’s
roommate, Idelle Feltman, was waiting in the store to
take her home, the petitioner and an unidentified female
entered the store. Wright testified that the petitioner
and the female split up and appeared to be shopping
for king-size beds. Wright testified that she was sitting
behind the store counter when the petitioner arrived
and that she rose in order to greet him because it was
store policy to do so whenever a potential customer
arrived. Before Wright could make it around the
counter, however, the petitioner told her to get on the
floor. Wright testified that she noticed that the peti-
tioner had a gun in his hand and was holding it out
parallel to the floor. The petitioner told Feltman to get
the money from the register. Feltman gave the peti-
tioner the money in the register in a bank bag. Wright
testified that the petitioner then inquired if there was
a basement in the store, and Feltman responded by
telling the petitioner that there was no basement . . .
but [that] there was a bathroom. Wright testified that
the petitioner led her and Feltman to the bathroom at
gunpoint and told them to enter the bathroom, lock the
door, and ‘not to be a hero, let the cops do their jobs.’
Wright stated that she heard a buzzer go off, which
indicated that the door to the store had been opened.
She and Feltman waited for a ‘little bit,’ unlocked the
door, and left the bathroom to call 911. Wright estimated
that about five to six minutes elapsed between the time
the petitioner entered the store [and] the time she and
Wright were able to contact the police.
‘‘Feltman testified that she went to the Southington
Bedding Barn to pick up Wright from work because the
two planned to go out to dinner. During her testimony,
she recalled that two people, the petitioner and a
woman, entered the store right before closing and that
the pair split up after they entered the store. Feltman
testified that the petitioner approached the counter and
removed a gun from his bag. He waved the gun and
told her to give him the money in the register. Feltman
emptied the register, which contained less than $100,
and handed the money to the petitioner. Feltman testi-
fied that, after he obtained the money, the petitioner
inquired whether there was a basement in the store
and that Feltman and Wright replied that there was no
basement . . . but [that] there was a bathroom. Felt-
man stated that the petitioner led her and Wright in a
single-file line to the bathroom and then instructed them
to enter, while aiming the gun at them and causing them
to be scared. Feltman and Wright entered the bathroom
and waited a minute or two after they heard the door
buzzer that indicated someone had entered or left the
store. At this point, the two left the bathroom and found
a mattress that had been placed in the narrow hallway
leading to the bathroom as a ‘barricade . . . .’ Feltman
testified that she pushed it off to the side and ‘walked
right through.’ ’’ (Footnote omitted.) Id.
The following additional facts and procedural history
also are relevant to the present appeal. At trial, the
petitioner did not seriously contest that the charged
crimes occurred as alleged. Rather, his primary defense
was that the various victims had misidentified him as
the perpetrator and that no evidence other than the
victims’ eyewitness testimony linked him to the crimes.
Therefore, the vast majority of defense counsel’s ques-
tions during cross-examination pertained to the identity
issue, although counsel did inquire whether the perpe-
trator had physically pushed the victims toward the
bathrooms, how far the bathrooms were situated from
the cash registers where the robberies occurred, and
the ease with which the victims exited the bathrooms.
There was testimony that the bathroom in the Newing-
ton store was located approximately twenty-four feet
from the register.
During closing arguments, the prosecutor acknowl-
edged in his introduction that Connecticut’s definition
of kidnapping was counterintuitive, and he argued that
‘‘what we have here is clearly kidnapping in the state
of Connecticut.’’ His argument as to the alleged kidnap-
ping focused entirely on the petitioner’s conduct after
having completed the robberies: ‘‘[T]he use of the gun
to herd the people into the back room, I’d argue to you,
is that type of restraint. Obviously, they are not free to
leave . . . even that particular area, the path [toward]
the bathroom. They are . . . obviously not free to leave
the building. They are not free to go call the police.
They are restricted in their movements, again, and the
intent of the [petitioner] or again since we are right
now discussing what’s not in dispute, the intent of the
person who committed this crime was to accomplish
the commission of a felony, that is, this was part of
the plan to allow him to escape from committing this
robbery.’’ The prosecutor thus argued the case as if (1)
it was undisputed that the perpetrator had forced the
victims to enter and remain in the bathroom at gunpoint
in order to facilitate his escape from the robbery scene,
and (2) the kidnapping allegedly was predicated on the
restraint of the victims only after the perpetrator had
taken the money from the cash registers.
 In his closing argument, defense counsel conceded
that the robberies took place as alleged, contesting only
that the petitioner was the perpetrator. He also essen-
tially agreed with the prosecutor that the underlying
facts were not in dispute: ‘‘As [the prosecutor] pointed
out to you, this case begins and ends with identification,
and I have conceded essentially that to you.’’ Defense
counsel also conceded that the conduct that the state
had identified as kidnapping transpired after the robber-
ies had occurred: ‘‘You and I, we don’t want to be on
the other side of what we think might be a real, live
gun with a person who appears to be robbing us and
then asking us to go to a back room and saying, don’t
be a hero.’’ (Emphasis added.)
The jury found the petitioner guilty of four counts of
kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (B),2 four counts of robbery in
the first degree in violation of General Statutes § 53a-
134 (a) (4), and two counts of criminal possession of
a pistol or revolver in violation of General Statutes (Rev.
to 1995) § 53a-217c. The trial court rendered judgment
in accordance with the jury verdict and sentenced the
petitioner to a total effective sentence of twenty-five
years incarceration consecutive to any sentence the
petitioner was presently serving. The Appellate Court
rejected the petitioner’s claims on appeal, and this court
denied his petition for certification to appeal to this
court. State v. Banks, 59 Conn. App. 112, 113–14, 755
A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904
(2000). At no time on appeal did the petitioner challenge
the propriety of the trial court’s jury instructions on kid-
napping.
Thereafter, in 2008, more than one decade after the
petitioner’s trial, we decided Salamon, in which ‘‘we
reconsidered our long-standing interpretation of our
kidnapping statutes, General Statutes §§ 53a-91 through
53a-94a. . . . [In that case] [t]he defendant [Scott Sala-
mon] had assaulted the victim at a train station late at
night . . . and ultimately was charged with kidnapping
in the second degree in violation of [General Statutes]
§ 53a-94, unlawful restraint in the first degree, and risk
of injury to a child. . . . At trial, [Salamon] requested
a jury instruction that, if the jury found that the restraint
had been incidental to the assault, then the jury must
[find him not guilty] of the charge of kidnapping. . . .
[Consistent with established precedent of this court]
[t]he trial court declined to give that instruction [and
Salamon was convicted of second degree kidnapping
in addition to the two other crimes]. . . .
‘‘[On appeal, Salamon requested that we reexamine]
our long-standing interpretation of the kidnapping stat-
utes to encompass even restraints that merely were
incidental to and necessary for the commission of
another substantive offense, such as robbery or sexual
assault. . . . We [did so and] ultimately concluded that
[o]ur legislature . . . intended to exclude from the
scope of the more serious crime of kidnapping and its
accompanying severe penalties those confinements or
movements of a victim that are merely incidental to
and necessary for the commission of another crime
against that victim. Stated otherwise, to commit a kid-
napping 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. State v.
Salamon, supra, 287 Conn. 542.
‘‘We explained in Salamon that a defendant may be
convicted of both kidnapping and another substantive
crime if, at any time prior to, during or after the commis-
sion of that other crime, the victim is moved or confined
in a way that had 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. Consequently, when the
evidence reasonably supports a finding that the
restraint was not merely incidental to the commission
of some other, separate crime, the ultimate factual
determination must be made by the jury. For purposes
of making that determination, the jury should be
instructed to consider the various . . . factors [rele-
vant thereto] . . . . Id., 547–48.’’ (Citations omitted;
internal quotation marks omitted.) State v. Hampton,
293 Conn. 435, 459–60, 988 A.2d 167 (2009).
Three years later, in Luurtsema v. Commissioner of
Correction, 299 Conn. 740, 12 A.3d 817 (2011), we held
that Salamon applies retroactively in habeas actions.
See id., 751, 760 (plurality opinion). That is, an individ-
ual, such as the petitioner in the present case, who was
convicted before we decided Salamon can nevertheless
bring a habeas action challenging his conviction on the
ground that his or her jury was not properly instructed
as to the meaning of the kidnapping statutes, as clarified
in Salamon.3
Because, however, Luurtsema involved two ques-
tions reserved by the habeas court for the advice of
this court limited to the issue of retroactivity; see id.,
743 (plurality opinion); we did not have occasion in that
case to decide what harmless error standard applies to
Salamon errors in the habeas context. Subsequently,
in 2014, the petitioner in the present case filed the
petition for a writ of habeas corpus that is the basis
of this appeal. In his amended petition, the petitioner
alleged a violation of his due process right to a fair
trial under the fifth and fourteenth amendments to the
United States constitution, challenging his four kidnap-
ping convictions on the ground that the instructions
given to the jury were not in accordance with Salamon.
 The habeas court denied the petition. The court con-
cluded that the respondent had demonstrated that the
absence of a Salamon instruction at the petitioner’s
criminal trial was harmless error because the ‘‘move-
ments and confinements [of the victims] were perpe-
trated after the crimes of robbery were committed and
[could not] conceivably be regarded as coincidental
with or necessary to complete the substantive crimes
of robbery. Depriving someone of their freedom of
movement by imprisoning them in a bathroom subse-
quent to acquiring their money, although convenient
for the robber, is not inherent in the crime of robbery.
It is crystal clear that the petitioner’s intent and purpose
for locking up his robbery victims [were] to postpone
their summoning of assistance and reporting of the
crime to [the] police, thus facilitating the petitioner’s
escape from the scene and delaying detection of his
crime, identity, and/or whereabouts. Also, the petitioner
extended the period of infliction of duress and distress
for the victims by restraining them beyond the time of
fulfillment of his quest, [that is, his] seizure of cash.’’
(Emphasis in original.)
The habeas court granted the petitioner’s petition
for certification to appeal, and a divided panel of the
Appellate Court reversed. Banks v. Commissioner of
Correction, supra, 184 Conn. App. 132. The Appellate
Court majority, applying the Neder harmless error stan-
dard, determined that the absence of a Salamon instruc-
tion was not harmless beyond a reasonable doubt. Id.,
104, 132; see id., 112–13 n.7. Specifically, the majority,
applying the six factor test that we set forth in State v.
Salamon, supra, 287 Conn. 548, concluded that three
of the factors tipped in the petitioner’s favor; see Banks
v. Commissioner of Correction, supra, 130; and that a
jury reasonably could have found that his movement
and restraint of the four victims were part of ‘‘a continu-
ous, uninterrupted course of conduct related to the
robberies . . . .’’ Id., 132.
Judge Keller penned a dissenting opinion. See id.,
132–50 (Keller J., dissenting). She argued that five of
the six Salamon factors pointed in the respondent’s
favor and that no reasonable jury could conclude that
the petitioner’s forcing his victims into an isolated bath-
room at gunpoint, after having taken their valuables
and emptied the cash registers, was merely incidental
to and necessary for the commission of the robberies.
Id., 143–50 (Keller, J., dissenting).
We granted the respondent’s petition for certification
to appeal, limited to the following two issues: (1) ‘‘When
a habeas petitioner claims that the criminal trial court
erred by omitting jury instructions on the intent element
of kidnapping pursuant to [Salamon], is harm measured
in accordance with [Brecht] or [Neder]?’’ And (2) ‘‘[d]id
the Appellate Court [correctly] conclude that the
absence of a Salamon instruction at the petitioner’s
criminal trial was not harmless error?’’ Banks v. Com-
missioner of Correction, 330 Conn. 950, 197 A.3d 391
(2018). Additional facts will be set forth as necessary.
II
We begin by addressing the first certified question,
that is, whether the Brecht standard or the Neder stan-
dard applies to Salamon claims raised in habeas pro-
ceedings. We agree with the respondent that the Brecht
standard, as defined herein, is applicable.
A
Under Neder, which adopted the Chapman standard;
see Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.
824, 17 L. Ed. 2d 705 (1967); the state must demonstrate
that a trial error was harmless beyond a reasonable
doubt. See Neder v. United States, supra, 527 U.S. 15.
In the context of a criminal conviction in which the
trial court failed to instruct the jury on an element of
the charged offense, the Neder standard often has been
framed as also requiring that the element at issue have
been uncontested at trial, and that the evidence tending
to establish that element be overwhelming, before an
error may be deemed harmless. See, e.g., State v. Vel-
asco, 253 Conn. 210, 232, 751 A.2d 800 (2000). The fed-
eral courts apply Neder to assess the harmlessness of
most constitutional errors on direct review. See, e.g.,
Neder v. United States, supra, 7.
By contrast, under Brecht, the harmlessness of consti-
tutional errors is assessed according to whether the
error ‘‘had [a] substantial and injurious effect or influ-
ence in determining the jury’s verdict.’’ (Internal quota-
tion marks omitted.) Brecht v. Abrahamson, supra, 507
U.S. 637. This standard originated as the Kotteakos test.
See Kotteakos v. United States, 328 U.S. 750, 776, 66 S.
Ct. 1239, 90 L. Ed. 1557 (1946). It has been adopted
as the harmless error standard for nonconstitutional
errors by the federal courts and, more recently, by this
court in State v. Sawyer, 279 Conn. 331, 357, 904 A.2d
101 (2006), overruled on other grounds by State v.
DeJesus, 288 Conn. 418, 953 A.2d 45 (2008). See State
v. Sawyer, supra, 357 (nonconstitutional evidentiary
error is harmless if ‘‘an appellate court has a fair assur-
ance that the error did not substantially affect the ver-
dict’’ (internal quotation marks omitted)). Brecht also
is the standard by which the harmfulness of most consti-
tutional errors is assessed in federal habeas actions.
The Brecht standard reserves the remedy of a new
trial for errors resulting in ‘‘ ‘actual prejudice,’ ’’ as dis-
tinguished from errors giving rise to a mere possibility
of harm. Brecht v. Abrahamson, supra, 507 U.S. 637.
We previously have likened the substantial prejudice
necessary for relief from nonconstitutional error to
error that is sufficiently prejudicial ‘‘to undermine confi-
dence in the fairness of the verdict.’’ (Internal quotation
marks omitted.) State v. Sawyer, supra, 279 Conn. 353;
see also id., 352–54 (citing cases in which this court
has applied ‘‘undermine confidence’’ test for purposes
of determining harmfulness of nonconstitutional error).
Notably, this is the same showing—characterized as a
showing of a reasonable probability of a different
result—required for constitutional claims alleging inef-
fective assistance of counsel under Strickland v. Wash-
ington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), and the suppression of material, exculpatory
evidence under Brady v. Maryland, 373 U.S. 83, 87, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The United States
Court of Appeals for the Second Circuit has explained
that, when Brecht is applied to a trial error in which
the jury is not properly instructed as to an essential
element of the charged crime, the reviewing court must
undertake a careful, de novo review of the entire record
and order a new trial unless the court is persuaded
‘‘that a properly instructed, rational jury would have
found the [required element of the crime proven]
beyond a reasonable doubt.’’ Peck v. United States, 106
F.3d 450, 456–57 (2d Cir. 1997).
Although some courts expressly place the burden of
demonstrating harmlessness under Brecht on the state,
the United States Supreme Court has expressed the
view that it is ‘‘conceptually clearer’’ simply to place
the onus on the reviewing court to determine whether
an error substantially influenced the jury’s decision.
O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992,
130 L. Ed. 2d 947 (1995); see id., 436–37. We agree with
the high court, however, that, when the reviewing court
is in equipoise as to the question, the error must be
deemed to have affected the verdict. See id., 435. For
all intents and purposes, then, once a habeas petitioner
has established a Salamon violation, the respondent
bears the burden of demonstrating that the failure to
instruct the jury in accordance with Salamon was
harmless.
B
Although the petitioner argues that stare decisis
requires us to apply Neder, in reality, this court never
has resolved the question of whether Salamon errors
should be assessed under Neder or Brecht on collateral
review. Most of the Salamon cases that we have decided
have reached us on direct review, where it is undisputed
that Neder is the proper standard. Only twice have we
had occasion to apply Salamon in the habeas context.
In the first case, Luurtsema, as we noted, the issue
reached us in the context of reserved questions from
the habeas court regarding the retroactive applicability
of Salamon. Luurtsema v. Commissioner of Correc-
tion, supra, 299 Conn. 742 (plurality opinion). Accord-
ingly, we did not have cause to address the harmless
error issue. In dictum, however, we strongly suggested
that Brecht—or at least something short of Neder—
would be the appropriate legal standard. See id., 769–70
(plurality opinion). In Luurtsema, we explained why, in
holding that Salamon applies retroactively on collateral
review, we were not persuaded by the argument that
‘‘a finding of retroactivity would flood the court system
with habeas petitioners seeking to overturn kidnapping
convictions . . . .’’ (Internal quotation marks omitted.)
Id., 769 (plurality opinion). We explained that, of those
potential habeas cases that ‘‘fall within the ambit of
Salamon . . . we expect that courts will be able to
dispose summarily of many cases [when] it is suffi-
ciently clear from the evidence presented at trial that
the petitioner was guilty of kidnapping, as properly
defined, [and] that any error arising from a failure to
instruct the jury in accordance with the rule in Salamon
was harmless.’’ (Footnote omitted.) Id., 769–70 (plural-
ity opinion). The fact that we thought that many Sala-
mon cases could be disposed of summarily on the
ground of harmless error strongly suggests that we did
not envision that such claims would be evaluated under
the stringent Neder standard.
The second case—the only one in which we had the
opportunity to review a final judgment from a habeas
action finding a Salamon violation—was Hinds v. Com-
missioner of Correction, 321 Conn. 56, 136 A.3d 596
(2016). In that case, we expressly left open the question
of whether Neder or Brecht applies to Salamon claims
on collateral review. Specifically, after first having
found that the Salamon error was not harmless beyond
a reasonable doubt under Neder; id., 81; the majority
in Hinds stated that ‘‘this court has not had the occasion
to consider whether . . . a more stringent standard of
harm should apply in collateral proceedings . . . .
Brecht v. Abrahamson, supra, 507 U.S. 623 . . . .’’
Hinds v. Commissioner of Correction, supra, 81. We
concluded, however, that ‘‘[w]e need not decide in
[Hinds] whether to enter the fray by adopting the stan-
dard in Brecht and the uncertainties that accompany it
. . . because . . . the petitioner would prevail even
under the more stringent standard . . . .’’ Id., 83. We
then proceeded to explain at some length why the Sala-
mon error in that case would qualify as harmful, even
if we were to employ a standard more favorable to the
respondent. See id., 83–94; see also Epps v. Commis-
sioner of Correction, 323 Conn. 901, 150 A.3d 679 (2016)
(granting certification to appeal to resolve question,
‘‘unresolved by Hinds,’’ of ‘‘[w]hether . . . in a collat-
eral 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’’ (emphasis added)).4 Accordingly, we disagree
with the petitioner’s contention that precedent compels
us to apply Neder. If anything, our prior case law sug-
gests the opposite.
C
 We conclude that Brecht, as characterized herein,
provides the proper harmless error standard in state
habeas actions, at least with respect to Salamon errors.
We reach this conclusion for at least the following
three reasons.
1
First, evaluating Salamon claims according to the
Brecht standard is more consistent with how we handle
other claims of error in habeas actions. The parties
disagree as to which harmlessness standard is more
consistent with our broader habeas jurisprudence, with
each contending that adoption of the other party’s pre-
ferred standard would create a ‘‘ ‘confused patchwork’ ’’
or draw ‘‘arbitrary distinctions . . . .’’ Because harm-
lessness standards vary depending on the stage of
review and the type of error at issue, some appearance
of arbitrariness, from some vantage point, is, perhaps,
inevitable, regardless of which standard we adopt. See
United States v. Dominguez Benitez, 542 U.S. 74, 86,
124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004) (Scalia, J.,
concurring in the judgment) (‘‘[b]y my count, [the
United States Supreme] Court has adopted no fewer
than four assertedly different standards of probability
relating to the assessment of whether the outcome of
trial would have been different if [the] error had not
occurred, or if omitted evidence had been included’’
(emphasis omitted)); Brecht v. Abrahamson, supra, 507
U.S. 649 (White, J., dissenting) (‘‘[o]ur habeas jurispru-
dence is taking on the appearance of a confused
patchwork’’).
It bears noting, however, that the vast majority of
habeas cases that we review are subject to harm-
lessness or prejudice review under some standard that
is more onerous, from the petitioner’s standpoint, than
Chapman/Neder. For example, many habeas cases
present Strickland or Brady claims that require the
petitioner to establish a reasonable probability that,
but for the error, the result of the proceeding would
have been different. See, e.g., Michael T. v. Commis-
sioner of Correction, 307 Conn. 84, 91–92, 52 A.3d
655 (2012).
The primary context in which we have required a
showing of harmlessness beyond a reasonable doubt
in habeas cases is when the prosecution knowingly has
relied on or failed to correct false testimony at trial.
See, e.g., Adams v. Commissioner of Correction, 309
Conn. 359, 370–73, 71 A.3d 512 (2013). In those cases,
we reasoned that a ‘‘strict standard of materiality is
appropriate . . . not just because [the constitutional
violations] involve prosecutorial [impropriety], but
more importantly because they involve a corruption of
the truth-seeking function of the trial process.’’ (Internal
quotation marks omitted.) Id., 372. Neither of those
rationales applies in the Salamon context, in which the
state tried cases appropriately, according to our then
established interpretation of the kidnapping statutes.
The first concurrence ‘‘see[s] no need for this stan-
dard to be ‘consistent with how we handle other claims
of error in habeas actions.’ ’’ Instead, the first concur-
rence contends that alleged Salamon errors are unique
among habeas claims in that ‘‘[a] Salamon violation
. . . is a determination that the state, in prosecuting a
defendant, was unconstitutionally relieved of proving
an essential element of the crime of kidnapping.’’
Although we are not bound by the federal courts in
this regard, we find it noteworthy that they have roundly
rejected the argument that we should carve out this
particular category of constitutional error for review
according to a different standard. In California v. Roy,
519 U.S. 2, 117 S. Ct. 337, 136 L. Ed. 2d 266 (1996), the
United States Supreme Court confronted a scenario
strikingly similar to that presented by our Salamon
jurisprudence. One year after a California jury found the
petitioner, Kenneth Roy, guilty of first degree murder
on a theory of felony murder, the California Supreme
Court clarified the state’s felony murder law, holding
that a stricter instruction on the intent element was
required than the one that had been given in Roy. See
id., 3, citing People v. Beeman, 35 Cal. 3d 547, 561, 674
P.2d 1318, 199 Cal. Rptr. 60 (1984). The United States
Supreme Court agreed with the lower courts that, in
light of Beeman, Roy had been convicted on the basis
of a ‘‘misdescription of an element of the crime . . . .’’
(Internal quotation marks omitted.) California v. Roy,
supra, 5. Nevertheless, the high court held that, not only
was such an error not a structural error that defies
analysis by harmless error standards; id.; but, on collat-
eral review, it was subject to harmless error analysis
under the Brecht standard rather than the Neder stan-
dard. See id., 5–6.
Although Roy involved a federal collateral attack on
a state conviction and, therefore, arguably was predi-
cated in part on considerations of comity and federal-
ism, its holding has been applied in habeas actions
challenging federal convictions, where those concerns
do not weigh in the balance. Peck v. United States,
supra, 106 F.3d 450, a decision of the United States
Court of Appeals for the Second Circuit, provides an
excellent case in point. In Peck, as in Roy and Salamon,
an intervening court decision—this time by the United
States Supreme Court itself—meant that the habeas
petitioner in that case had been found guilty by a jury
that had not been properly instructed as to the intent
element of the charged crime, namely, structuring cash
transactions to evade bank reporting requirements in
violation of various provisions of title 31 of the United
States Code. Id., 451–53. The Court of Appeals, after
reviewing its harmless error jurisprudence; id., 453–55;
concluded that ‘‘Brecht sets forth the correct methodol-
ogy for determining if an instructional error of the type
present in Roy is harmless.’’ Id., 456. As we discussed,
the court emphasized that Brecht requires the reviewing
court to undertake a careful, de novo review of the
entire record; see id., 456–57; and to order a new trial
unless the court is able to conclude ‘‘that a properly
instructed, rational jury would have found the [required
element of the crime proven] beyond a reasonable
doubt.’’ Id., 457.
Although we are free to diverge from the federal courts
in defining the legal standards that govern appellate
review of claims raised in state habeas petitions, we
find Roy and Peck to be persuasive authority. As the
respondent has argued, it is a close question whether
the failure to give a Salamon instruction even consti-
tutes error, let alone reversible error, in a case such as
this, in which the conduct on which the kidnapping
convictions were predicated did not occur until after
the underlying robberies had been completed. By con-
trast, as the companion case demonstrates, the Brecht
standard provides substantial protection and mandates
a new trial when a reviewing court does not retain full
confidence in the fairness of the conviction. See Bell
v. Commissioner of Correction, supra, 339 Conn. 82,
83. Other types of constitutional errors likewise run the
gamut, ranging from more minor, technical violations
to serious deprivations of fundamental constitutional
rights. We see no reason to add epicycle upon epicycle
by carving out a special standard of review solely for
one subset of habeas claims.
2
Second, a number of our sister states have followed
the federal courts in adopting Brecht as the proper
harmlessness standard for collateral review of constitu-
tional errors. See, e.g., White v. State, 729 So. 2d 909,
915 (Fla. 1999); State v. Thomas, 750 So. 2d 1114, 1126
(La. App. 1999), writ denied, 795 So. 2d 1203 (La. 2001);
Sanchez v. State, 272 Or. App. 226, 241 n.10, 355 P.3d
172, review denied, 358 Or. 449, 366 P.3d 719 (2015);
Ex parte Fierro, 934 S.W.2d 370, 372 (Tex. Crim. App.
1996), cert. denied sub nom. Fierro v. Texas, 521 U.S.
1122, 117 S. Ct. 2517, 138 L. Ed. 2d 1019 (1997); see
also Hittson v. Humphrey, Docket No. 5:01-CV-384
MTT, 2012 WL 5497808, *36 (M.D. Ga. November 13,
2012) (Georgia habeas court applied Brecht), rev’d in
part on other grounds sub nom. Hittson v. GDCP War-
den, 759 F.3d 1210 (11th Cir. 2014), cert. denied sub
nom. Hittson v. Chatman, 576 U.S. 1028, 135 S. Ct.
2126, 192 L. Ed. 2d 887 (2015). We do not mean to
suggest that Brecht is the prevailing approach among
our sister states. A number of jurisdictions apply Neder
on collateral as well as on direct review of constitutional
errors. See, e.g., In re Martinez, 3 Cal. 5th 1216, 1224–25,
407 P.3d 1, 226 Cal. Rptr. 3d 315 (2017); Guam v. Ojeda,
Docket No. CRA10-011, 2011 WL 6937376, *13 (Guam
December 23, 2011); Hill v. State, 615 N.W.2d 135,
140–41 (N.D. 2000). Still, the fact that other states have
adopted and successfully applied Brecht goes a long
way toward addressing the potential counterarguments
discussed hereinafter.
3
Third, and most important, insofar as Brecht requires
that a new trial be granted due to the omission of a
Salamon instruction unless, despite the omission, a
reviewing court retains confidence in the fairness of
the kidnapping conviction, the Brecht test affords a
habeas petitioner significant protection. Indeed, under
Brecht, a petitioner seeking a new trial because of such
an omission is afforded no less protection than a peti-
tioner who has established, under Strickland, that coun-
sel’s performance fell below constitutional standards,
or, under Brady, that the state failed to turn over excul-
patory information. In fact, a petitioner who, upon
establishing a Salamon violation, is entitled to applica-
tion of the Brecht standard actually will receive more
protection than a petitioner seeking relief under Strick-
land or Brady because, as we have explained, the state
bears the burden of disproving harm or prejudice. As
in cases involving Strickland and Brady claims, if the
appeals court, upon review of the petitioner’s collateral
attack on his conviction, is satisfied that the error—in
this case the omission of a Salamon instruction—does
not call into question the fairness of that conviction,
then it seems clear that a new trial is not constitutionally
required. Consequently, for the foregoing reasons, we
conclude that, when a habeas petitioner convicted of
kidnapping has demonstrated that the jury was not
properly instructed in accordance with Salamon, the
state meets its burden of establishing harmlessness only
if the reviewing court, following a thorough, de novo
review of the record, has confidence that a properly
instructed jury would have found the defendant guilty
beyond a reasonable doubt.
D
Several additional counterarguments have been asserted
as to why we should assess the harmlessness of Sala-
mon errors under Neder, even in habeas actions. For
the following reasons, we ultimately do not find those
arguments to be persuasive.
1
First, the petitioner and the first concurrence argue
that to adopt the Brecht standard would be inconsistent
with the rationales that animated our decisions in Sala-
mon and Luurtsema. In Brecht, the United States
Supreme Court offered three principal rationales for
why a different harm standard should govern constitu-
tional error in habeas actions than on direct appeal: (1)
the presumption of finality following direct review of
a conviction and the practical challenges that the state
faces in potentially having to retry a petitioner years
or—as in this case—decades after a crime; see Brecht v.
Abrahamson, supra, 507 U.S. 633; (2) the extraordinary
nature of the habeas remedy, which should be granted
only to those petitioners who have been ‘‘grievously
wronged and for whom belated liberation is little
enough compensation’’ (internal quotation marks omit-
ted) id., 633–34; and (3) concerns of federalism and
comity, which counsel that federal courts defer to state
courts that already have fully reviewed a petitioner’s
case and have found no reversible error. Id., 635; see
also Fry v. Pliler, 551 U.S. 112, 117, 127 S. Ct. 2321, 168
L. Ed. 2d 16 (2007) (discussing ‘‘primary reasons’’ for
Brecht decision).
The petitioner argues that, as a general matter, the
Brecht standard is not suitable for state habeas actions
because the federalism and comity concerns on which
Brecht was in part predicated do not apply when a
state court is deciding a state habeas claim in the first
instance. He further argues that Brecht is particularly
ill-suited to the review of Salamon claims. He contends
that, in Salamon and Luurtsema, we assumed that,
although the finality of judgments is an important con-
sideration, ‘‘the interests of finality must give way to
the demands of liberty and a proper respect for the
intent of the legislative branch.’’ Luurtsema v. Commis-
sioner of Correction, supra, 299 Conn. 766 (plurality
opinion). Accordingly, he posits, we already have
decided that the finality considerations addressed in
Brecht are trumped by other considerations in the
unique Salamon context. The first concurrence echoes
these points.
This argument, while perhaps facially appealing, ulti-
mately is unpersuasive. As we noted, two of the three
principal rationales on which Brecht relied—the finality
of judgments and the extraordinary nature of the habeas
remedy—apply to state court habeas proceedings no
less than to their federal counterparts. Moreover, subse-
quent to Brecht, the United States Supreme Court has
downplayed the importance of the federalism and com-
ity considerations discussed in that decision. Most nota-
bly, in Fry, the high court, resolving a split among the
federal courts of appeals, held that Brecht is the proper
standard for assessing harm in a federal habeas action,
even when the state courts failed to recognize the con-
stitutional error and did not review it for harmlessness
under Neder. See Fry v. Pliler, supra, 551 U.S. 114,
121–22; see also Davis v. Ayala, 576 U.S. 257, 268, 135
S. Ct. 2187, 192 L. Ed. 2d 323 (2015) (‘‘[t]he Brecht
standard reflects the view that a [s]tate is not to be put
to th[e] arduous task [of retrying a defendant] based
on mere speculation that the defendant was prejudiced
by trial error; the court must find that the defendant
was actually prejudiced by the error’’ (internal quota-
tion marks omitted)); Calderon v. Coleman, 525 U.S.
141, 146, 119 S. Ct. 500, 142 L. Ed. 2d 521 (1998) (finality
concerns on which Brecht was predicated were espe-
cially compelling when seventeen years had passed
since petitioner’s sentencing). Indeed, in the wake of
Fry, courts and commentators have opined that the
finality and habeas specific concerns were the high
court’s principal rationales for adopting a less onerous
harmless error standard in Brecht. See, e.g., Hittson v.
GDCP Warden, supra, 759 F.3d 1276 (Carnes, C. J.,
concurring) (‘‘Nothing in Brecht implies, let alone
clearly establishes, that state courts must apply [Neder]
on collateral review. If anything, Brecht’s principal
rationale—that ‘collateral review is different from
direct review’ and that the ‘substantial and injurious
effect’ standard is ‘better tailored to the nature and
purpose of collateral review than the [Neder] stan-
dard’—implies that state courts, like federal courts, are
not bound to apply the [Neder] standard when conduct-
ing collateral review. The . . . Fry decision took
Brecht one step further away from [that] position
. . . .’’); 7 W. LaFave et al., Criminal Procedure (4th
Ed. 2015) § 28.9 (b), pp. 382, 398 (most federal courts
of appeals apply Brecht in habeas actions challenging
federal convictions, despite inapplicability of federal-
ism and comity concerns); J. Sullivan, ‘‘Danforth, Retro-
activity, and Federalism,’’ 61 Okla. L. Rev. 425, 497
(2008) (‘‘in Brecht . . . the [c]ourt recognized that
competing interests, including finality, warrant applica-
tion of a different standard for proof of harm in evaluat-
ing claims of constitutional error asserted in federal
habeas proceedings’’ (footnote omitted)). As we noted,
a number of our sister state courts have adopted Brecht
as the proper standard for assessing harmless error in
state habeas actions, despite the inapplicability of the
federalism and comity considerations discussed in
that decision.
We also reject the petitioner’s contention that our cases
already have struck the balance against the state’s inter-
ests in preserving the finality of convictions. His argu-
ment confuses the existence of the right with the proper
remedy for its violation. See United States v. Cappas,
29 F.3d 1187, 1193 (7th Cir. 1994) (‘‘the [Brecht] standard
does not define the scope of underlying substantive
constitutional rights . . . but is rather about what rem-
edy is required [when] it is agreed that constitutional
rights have been violated’’ (emphasis omitted)). In Sala-
mon, we explained why our prior cases had not accu-
rately construed Connecticut’s kidnapping laws and
how, upon a closer examination, it was clear that the
legislature did not intend to criminalize as kidnapping
conduct that was merely incidental to the commission
of another crime, that is, conduct with no real indepen-
dent criminal significance separate and apart from the
underlying crime. See State v. Salamon, supra, 287
Conn. 542. In Luurtsema, we further explained why due
process does not permit the continued incarceration of
someone who has been convicted of a crime that he
or she did not commit, as properly defined. See Luurt-
sema v. Commissioner of Correction, supra, 299 Conn.
758–59 (plurality opinion). In that case, however, we
also made clear that a habeas petitioner may not prevail
on a Salamon claim when ‘‘continued incarceration
would not represent a gross miscarriage of justice, such
as [when] it is clear that the legislature did intend to
criminalize the conduct at issue, if perhaps not under
the precise label charged. In situations [in which] the
criminal justice system has relied on a prior interpreta-
tion of the law so that providing retroactive relief would
give the petitioner an undeserved windfall, the tradi-
tional rationales underling the writ of habeas corpus
may not favor full retroactivity. See Guzman v. Greene,
[425 F. Supp. 2d 298, 315 (E.D.N.Y. 2006), aff’d 337 Fed.
Appx. 27 (2d Cir. 2009)] (‘it is certainly not unjust, let
alone manifestly unjust, to keep a murderer in jail’).’’
Luurtsema v. Commissioner of Correction, supra, 764
(plurality opinion). As we noted, we further emphasized
in Luurtsema that reviewing courts will be able to sum-
marily dispose of many Salamon errors as harmless.
Id., 769–70 (plurality opinion). Accordingly, although
we certainly have not treated finality as the be all and
end all, we also have never said that the mere fact
that a petitioner was found guilty of kidnapping by
an improperly instructed jury necessarily amounts to
reversible error.
2
A related argument advanced by the petitioner is that
for us to apply Brecht in the present case, and to find the
errors harmless because we conclude that the evidence
presented at trial supports a kidnapping conviction
under the proper definition of that crime, would be
tantamount to directing a verdict for the state. The
United States Supreme Court has expressly rejected
this argument.
Only a small share of constitutional errors are struc-
tural, that is, so presumptively harmful that they require
automatic reversal. See, e.g., Washington v. Recuenco,
548 U.S. 212, 218, 126 S. Ct. 2546, 165 L. Ed. 2d 466
(2006). Most, rather, are subject to harmless error
review. See, e.g., id. (‘‘We have repeatedly recognized
that the commission of a constitutional error at trial
alone does not entitle a defendant to automatic reversal.
Instead, most constitutional errors can be harmless.’’
(Internal quotation marks omitted.)). This includes
errors in instructing the jury as to the elements of a
crime. We have said this not only in Luurtsema and
other Salamon cases, but also in numerous other con-
texts. See, e.g., State v. Thompson, 305 Conn. 806, 817–
18, 48 A.3d 640 (2012) (erroneous instruction concern-
ing circumstances under which jury properly could
aggregate value of stolen property for purpose of
determining whether state had proven element of
offense of first degree larceny requiring theft of prop-
erty worth more than $10,000); Small v. Commissioner
of Correction, 286 Conn. 707, 726–29, 946 A.2d 1203
(court improperly failed to instruct jury on definition
of ‘‘attempt,’’ even though petitioner was charged with
felony murder predicated on, inter alia, attempted rob-
bery), cert. denied sub nom. Small v. Lantz, 555 U.S.
975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008); State v.
McDonough, 205 Conn. 352, 354–62, 533 A.2d 857 (1987)
(erroneous instruction concerning inferences jury rea-
sonably might draw from circumstantial evidence), cert.
denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238
(1988). Indeed, Neder itself stands for the proposition
that the omission of a single element of a crime from
the jury charge is not a structural constitutional error
that is exempt from harmless error analysis. Washing-
ton v. Recuenco, supra, 218–19; Lanier v. United States,
220 F.3d 833, 838 (7th Cir.), cert. denied, 531 U.S. 930,
121 S. Ct. 312, 148 L. Ed. 2d 250 (2000). Accordingly,
the well established rule that a trial court may not
direct a verdict of guilty in a criminal trial; State v.
Ubaldi, 190 Conn. 559, 573, 462 A.2d 1001, cert. denied,
464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983);
see General Statutes § 54-89; in no way implies that a
reviewing court cannot adjudge a Salamon error harm-
less when the evidence presented at trial, assessed
under the appropriate legal standard, compels such a
conclusion. See Washington v. Recuenco, supra, 220–22
(rejecting argument that subjecting trial court’s failure
to submit sentencing factor to jury to harmless error
analysis amounted to improper directed verdict of
guilty); Neder v. United States, supra, 527 U.S. 17–19
(same, with respect to failure to properly instruct jury
as to elements of crime charged).
3
The petitioner’s next argument against adopting
Brecht as the standard for assessing the harmlessness
of Salamon errors on habeas review is that the Brecht
standard is vague and not easily applied. Most of the
cases on which the petitioner relies for this proposition,
however, were decided in the mid-1990s, in the immedi-
ate aftermath of the Brecht decision. Since that time, the
United States Supreme Court has provided additional
guidance, clarifying several of the key ambiguities left
open in Brecht itself.5 See, e.g., O’Neal v. McAninch,
supra, 513 U.S. 435–37 (resolving burden of proof ques-
tions); see also Fry v. Pliler, supra, 551 U.S. 121–22
(clarifying that Brecht applies on federal habeas review,
regardless of whether state courts recognized error and
reviewed it for harmlessness beyond reasonable doubt).
Perhaps most significant, the Brecht test, as character-
ized herein, is the same familiar standard—namely,
whether the error undermines confidence in the convic-
tion—used for ascertaining prejudice under Strickland
and Brady, a standard that we are called on to apply
regularly. We do not expect that it will be unduly diffi-
cult to apply that standard in ascertaining the harm
caused by an omitted Salamon instruction when that
task is undertaken with due regard for the broader
context of our holding in Salamon, that is, to ensure
that a defendant is not convicted of kidnapping unless
the conduct at issue has criminal significance indepen-
dent of the underlying offense.
4
Finally, the first concurrence asserts that to apply
Brecht in the present case would be unfair to the peti-
tioner and to others similarly situated. That this court
opted to revisit and revise our interpretation of the
state’s kidnapping laws following his conviction is no
more the fault of the petitioner than of the state.
Although would-be offenders were on notice in 1995
that they could be charged with kidnapping solely on
the basis of the restraint inherent in robberies or
assaults, they, like the state, did not have any reason
to try their cases with the Salamon distinction in mind.
Moreover, it may seem discrepant to assess the impact
of the instructional error according to the more forgiv-
ing Brecht standard when, if we had decided Salamon
one decade earlier, while the petitioner’s direct appeal
was pending, the state would have borne the burden
of proving that the error was harmless beyond a reason-
able doubt.
As we discussed, the somewhat scattershot nature
of harmless error jurisprudence, with standards varying
by the type of error at issue, the stage of review, and
the jurisdiction in which the claim is reviewed, means
that whichever standard we apply to Salamon errors
in state habeas cases may appear to be unfair or incon-
gruous from one vantage point or another. It certainly
will not seem unjust from the respondent’s standpoint
to require a showing that there is some reasonable
likelihood that the failure to give the jury a Salamon
instruction had a substantial and injurious effect or
influence on the outcome before requiring the state to
retry the petitioner for crimes that were committed
more than twenty-five years ago. If the ultimate question
is how to allocate the risk that an appellate court will
revise its interpretation of a criminal statute such as
§ 53a-92 after a conviction has been obtained and
affirmed on direct appeal, we think that the fairest and
most reasonable approach is to adopt the Brecht stan-
dard, as defined herein, to tip the balance in favor of
the petitioner in close cases, and to evaluate the facts
of a particular case with an eye toward whether there
is a reasonable likelihood that the petitioner could and
would have presented a different and potentially suc-
cessful defense with the benefit of Salamon’s guidance.
This avoids bestowing a windfall on the petitioner but
also does not penalize him for failing to anticipate our
reinterpretation of the kidnapping statute.6
III
 A
Having concluded that the harm associated with
depriving the petitioner of a Salamon instruction should
be assessed under the Brecht standard, we turn now to
the second question in this appeal: whether the largely
undisputed facts that were presented at trial and cred-
ited by the jury satisfy the statutory definition of kidnap-
ping, as clarified by this court, such that we are
confident that a properly instructed jury would have
found the petitioner guilty of kidnapping beyond a rea-
sonable doubt notwithstanding the Salamon error.
We note at the outset that the question of whether
conduct bears independent criminal significance as kid-
napping is one of law. It is, of course, the function of
the jury to find the relevant facts, including, ultimately,
whether a crime was committed with the intent neces-
sary to qualify as kidnapping, namely, the specific intent
to prevent the victim’s liberation and not simply to
perpetrate the underlying crime. See State v. Salamon,
supra, 287 Conn. 532, 547–48. At the same time, it is
beyond cavil that it is the role of the judiciary to inter-
pret the relevant statutes and to define, as a matter
of law, what type of conduct constitutes kidnapping
according to those statutes. See id., 529. As we
explained in Salamon, a necessary corollary is that it
falls to the courts to define the intent element of the
crime of kidnapping; see id., 534–35; to delineate the
ways in which kidnapping differs from coterminous
crimes such as robbery and sexual assault; see id., 542;
and to specify the factors that are relevant to that analy-
sis; see id., 548; in light of our understanding of the
legislative history of the kidnapping statutes and the
policy objectives that animated their modern revision.
See id., 542, 546.
As we explain more fully hereinafter; see part III B
of this opinion; our prior cases addressed the Salamon
issue and defined the relevant factors in the context
of the restraint involved in an ongoing sexual and/or
physical assault. We now confront a distinct and novel
scenario—asportation and confinement to facilitate a
perpetrator’s escape following the completion of a rob-
bery—in which we have not previously had cause to
apply Salamon, and in which a different provision of
the kidnapping statutes is at issue. Although it always
will be for the jury to find the relevant facts and to
determine whether the perpetrator had the requisite
criminal intent, it falls to this court to define in the first
instance how that criminal intent differs from the intent
necessary to commit an underlying crime for this cate-
gory of offenses, as well as how the factors that we
have articulated and applied to assess harmless error
in the sexual assault context operate in this novel arena.
As we explained in Salamon, those questions ultimately
are ones of legislative intent, framed by the history and
policy rationales that animate the relevant statutes. See
id., 529, 542.
B
We next consider the standards by which a reviewing
court is to assess the harmfulness of a Salamon error
in the context of a robbery in which the perpetrator
moves and confines the victims after having forcibly
taken valuables in their possession. For the reasons
that follow, we are not persuaded by the reasoning of
the Appellate Court majority, which concluded that a
jury reasonably might find that the restraint and aspor-
tation involved in the present case were undertaken
as part of ongoing robberies and, therefore, that the
petitioner might not have intended to restrain the vic-
tims more than was necessary to carry out those robber-
ies. See Banks v. Commissioner of Correction, supra,
184 Conn. App. 124–25, 131–32.
1
First, there is the matter of the statute at issue. In
Salamon, the defendant was convicted of violating
§ 53a-94 (a), which provides that ‘‘[a] person is guilty
of kidnapping in the second degree when he abducts
another person.’’ See also State v. Salamon, supra, 287
Conn. 529–30 (explaining distinction between kidnap-
ping, which requires abduction, and lesser offense of
unlawful restraint, which merely requires restraint).
Most of our subsequent Salamon cases have involved
violations of that statute; e.g., State v. Fields, 302 Conn.
236, 238, 24 A.3d 1243 (2011); or of § 53a-92 (a) (2) (A),
which provides that ‘‘[a] person is guilty of kidnapping
in the first degree when he abducts another person and
. . . he restrains the person abducted with intent to
. . . inflict physical injury upon him or violate or abuse
him sexually . . . .’’ E.g., Hinds v. Commissioner of
Correction, supra, 321 Conn. 59; State v. Ward, 306
Conn. 718, 721, 51 A.3d 970 (2012); State v. Hampton,
supra, 293 Conn. 437–38; State v. DeJesus, supra, 288
Conn. 420. All of those cases involved allegations that
the alleged kidnapping was intertwined with a sexual
or physical assault.
The present case, by contrast, requires that we con-
strue General Statutes § 53a-92 (a) (2) (B), which pro-
vides that ‘‘[a] person is guilty of kidnapping in the first
degree when he abducts another person and . . . he
restrains the person abducted with intent to . . .
accomplish or advance the commission of a felony
. . . .’’7
As we concluded in Salamon with respect to the
underlying crime of assault; see State v. Salamon, supra,
287 Conn. 542; it is clear that the legislature did not
intend to criminalize as kidnapping unlawful restraint
that is no greater than necessary for, and involves no
wrongful intent other than that inherent in, the comple-
tion of a robbery. It is equally clear, however, that the
legislature, in adopting § 53a-92 (a) (2) (B), did intend
that additional, gratuitous restraint used to accomplish
or advance the commission of a robbery carry the added
penalties associated with kidnapping. In other words,
the mere fact that a perpetrator restrains a victim during
the course of and in the service of a robbery does
not mean that, under Salamon, the conduct does not
constitute kidnapping. To so hold—or to permit a jury
to so reason—would be to render § 53a-92 (a) (2) (B)
a nullity, insofar as that statute criminalizes only such
kidnappings. See State v. Buggs, 219 Kan. 203, 214, 547
P.2d 720 (1976) (construing similar Kansas statute).
Accordingly, we are not persuaded by the reasoning
of the Appellate Court majority that a jury reasonably
might find that the petitioner’s conduct was not kidnap-
ping merely because it occurred as part of the course
of events of the robberies. See Banks v. Commissioner
of Correction, supra, 184 Conn. App. 124–25, 131–32.
As Judge Keller explained in her dissent and Judge
Lavine in his dissent in the companion case, that is not
the relevant legal inquiry. See id., 133 n.1, 145 n.6 (Keller,
J., dissenting); see also Bell v. Commissioner of Correc-
tion, 184 Conn. App. 150, 183 n.5, 194 A.3d 809 (2018)
(Lavine, J., dissenting), aff’d, 339 Conn. 79, A.3d
(2021). Rather, under Salamon, a jury, having found
abduction, restraint, and the criminal intent associated
therewith in the furtherance of a robbery, will necessar-
ily find the petitioner guilty of kidnapping under § 53a-
92 (a) (2) (B) unless it also finds that the restraint,
and the associated criminal intent, was limited to that
inherent in the robbery itself. As we explain in the
discussion that follows, when the question for the jury
is properly framed in that manner, only one answer is
reasonably possible in view of the facts of the pres-
ent case.
We find Virgin Islands v. Ventura, 775 F.2d 92 (3d
Cir. 1985), to be instructive in this regard. In that case,
the United States Court of Appeals for the Third Circuit
construed a territorial statute that provided that ‘‘[w]ho-
ever abducts, takes or carries away any person by force
or threat with the intent to commit rape is guilty of
kidnapping . . . .’’ Id., 96, quoting Act of June 30, 1983,
No. 4838, 1983 V.I. Sess. Laws 100, 101 (codified at V.I.
Code Ann. tit. 14, § 1052 (b)). As has this court; see,
e.g., State v. Salamon, supra, 287 Conn. 548; the Third
Circuit, in Virgin Islands v. Berry, 604 F.2d 221, 227
(3d. Cir. 1979), previously had applied a multifactor
test to assess when, as a general matter, an alleged
kidnapping committed in conjunction with another
crime constitutes a discrete offense. In Ventura, how-
ever, the Third Circuit held that the fact that the legisla-
ture chose to specifically criminalize asportation
incident to rape after Berry was decided meant that,
with respect to cases falling under the new statute,
certain factors of the test were necessarily satisfied and
need not be considered on a case-by-case basis. See
Virgin Islands v. Ventura, supra, 97 (‘‘[t]o apply the
Berry factor [at issue in Ventura] would effectively
override the will of the Virgin Islands legislature’’). Like-
wise, in the present case, to instruct a jury that it could
find that there was no kidnapping merely because the
restraint occurred in the course of an ongoing robbery
would effectively override the will of our state’s legisla-
ture, which was to impose heightened penalties for
precisely such conduct.
2
Second, the decision of the Appellate Court in this
case not only runs afoul of the statutory language, but
also fails to take due account of the particular factual
scenario presented by this case. This case is categori-
cally distinct from all of our prior Salamon cases insofar
as the petitioner indisputably had accomplished the
criminal objective of his underlying crimes prior to the
commencement of the alleged kidnapping. Under such
circumstances, there simply is no concern that the
intent of the legislature will be frustrated by prosecuting
a defendant for kidnapping solely on the basis of the
restraint inherent in or necessary to accomplish the
underlying crime. Many if not most robbers choose to
leave the scene immediately upon obtaining the fruits
of their crime. Numerous sister state courts have con-
cluded, as a matter of law, that a perpetrator’s choice
to remain at the crime scene and further restrict a
victim’s liberty after having robbed him or her manifests
independent, criminal significance. See, e.g., Black v.
State, 630 So. 2d 609, 619 (Fla. App. 1993) (when
restraint and removal occurred after perpetrator had
taken money from store, court deemed it ‘‘obvious that
the movement and confinement . . . [were] not inher-
ent in the nature of the robbery . . . [but] had some
significance independent of the robbery’’ (internal quo-
tation marks omitted)), review denied, 639 So. 2d 976
(Fla. 1994); State v. Blouvet, 965 S.W.2d 489, 492 (Tenn.
Crim. App. 1997) (‘‘[h]olding [the victim] at gunpoint
and moving her about the store [are] certainly not inci-
dental to the already accomplished felony of aggravated
robbery’’); State v. Allen, 94 Wn. 2d 860, 864, 621 P.2d
143 (1980) (concluding that brief abduction that
occurred after robbery to facilitate perpetrators’ flight
from scene was ‘‘a wholly separate event’’ and not inci-
dental to robbery because ‘‘[n]either the flight from the
scene of the robbery nor the means of flight therefrom
[were] statutorily or logically . . . part of [the] rob-
bery’’), overruled on other grounds by State v. Vladovic,
99 Wn. 2d 413, 662 P.2d 853 (1983); see also State v.
Golder, 127 Conn. App. 181, 190–91, 14 A.3d 399 (when
defendant moved victim to different room and
restrained her therein to facilitate his escape after tak-
ing her jewelry, restraint bore independent criminal
significance from completed burglary), cert. denied, 301
Conn. 912, 19 A.3d 180 (2011); People v. Bautista, 147
App. Div. 3d 1214, 1218, 47 N.Y.S.3d 503 (2017) (‘‘a
kidnapping is generally deemed to merge with another
offense . . . [when] there is minimal asportation
immediately preceding the other crime or [when] the
restraint and underlying crime are essentially simulta-
neous’’ (internal quotation marks omitted)).
Although we have not yet had occasion to expressly
state this proposition, we implied it in two prior cases.
In State v. Fields, supra, 302 Conn. 236, we addressed
the state’s contention that the defendant was not enti-
tled to a new trial on the challenged kidnapping count
because the alleged kidnapping did not occur until after
the assault of the victim had been completed. See id.,
251. We indicated that ‘‘[w]e might agree with this con-
tention’’ had the factual premises for the state’s argu-
ment not been in dispute. Id. Subsequently, in Hinds
v. Commissioner of Correction, supra, 321 Conn. 56,
we distinguished certain cases from other jurisdictions
that held the lack of a Salamon-type instruction to be
harmless error because those cases involved ‘‘contin-
ued restraint after completion of the nonkidnapping
offenses . . . .’’ Id., 87.
This makes sense. There is nothing specific to—let
alone inherent in—the crime of robbery about forcing
someone at gunpoint to the back of a store and
restraining them in a bathroom or cooler. That conduct
could just as well follow, and facilitate the offender’s
escape from, a physical or sexual assault, or other
crime. The purpose is to escape unhindered from a
crime scene—which, presumably, is a goal of most crim-
inals—and the specific nature of the underlying crime
is simply irrelevant.
3
The Appellate Court majority rejected the respon-
dent’s argument—and the conclusion of the habeas
court—that the petitioner’s asportation and restraint
of his victims necessarily bore independent criminal
significance because they did not commence until after
the petitioner had accomplished his primary goal of
obtaining wrongful possession of the cash in the store
registers. See Banks v. Commissioner of Correction,
supra, 184 Conn. App. 114, 120. The majority reasoned
that, according to some authorities, a robbery is not
necessarily completed at the time that a perpetrator
obtains unlawful possession of a victim’s property and,
therefore, that force exercised after the petitioner had
taken the victims’ money reasonably could be consid-
ered to be incidental to the robberies. See id., 120–28.
Judge Keller responded, and we agree, that we need
not engage in an ‘‘unduly legalistic’’ analysis of the pre-
cise moment at which a robbery ends. Id., 148 (Keller,
J., dissenting). Regardless of whether the robberies can
be said to have been ongoing in some sense, even after
the petitioner took possession of the victims’ money,
the important point for present purposes is that any
movement and confinement imposed after that time
served a fundamentally different objective. Whether
this category of restraints implicates the concerns that
we addressed in Salamon and, more broadly, whether
they are of the type that the legislature intended to
independently criminalize are questions of law that fall
to this court to resolve.
C
Both the Appellate Court majority, in concluding that
the Salamon error in the present case prejudiced the
petitioner, and Judge Keller, in maintaining that it did
not, contended that the six Salamon factors, on bal-
ance, tipped in favor of their positions. Id., 115–30; id.,
143–50 (Keller, J., dissenting). Those factors are (1)
the nature and duration of the victim’s movement or
confinement, (2) whether that movement or confine-
ment occurred during the commission of the separate
offense, (3) whether the restraint was inherent in the
nature of the separate offense, (4) whether the restraint
prevented the victim from summoning assistance, (5)
whether the restraint reduced the perpetrator’s risk
of detection, and (6) whether the restraint created a
significant danger or increased the victim’s risk of harm
independent of that posed by the separate offense. State
v. Salamon, supra, 287 Conn. 548. We agree with Judge
Keller that, in cases such as this, in which it is undis-
puted that the perpetrator unlawfully restrained his vic-
tims following, and to facilitate his escape from the
location of, a robbery, the Salamon factors typically
will tip against the petitioner’s claim. But see footnote
14 of this opinion.
There is little dispute that the first Salamon factor—
the extent of the victims’ asportation and confine-
ment—tends to favor the petitioner in the present case,
as will often be true in cases of this ilk. See Banks v.
Commissioner of Correction, supra, 184 Conn. App.
115–20 (comparing cases in which this court and Appel-
late Court concluded that conduct did, or did not, as
matter of law, have independent criminal significance).
That is to say, a jury reasonably could conclude that
moving robbery victims fewer than ten yards and con-
fining them for, at most, a few minutes during a perpe-
trator’s escape from the crime scene does not, simply
by virtue of the times and distances involved, bear inde-
pendent criminal significance.
In the preceding discussion, we explained why the
second and third Salamon factors ordinarily will tip
against the petitioner in a postrobbery kidnapping sce-
nario. The conduct at issue occurred after the objective
of the robbery had been completed. Nor was it inherent
in the crime of robbery, insofar as many, if not most,
robberies end with the perpetrator’s simply fleeing the
premises rather than moving and confining the victims.
In the discussion that follows, we explain why the final
three Salamon factors also favor the respondent in
such situations.
 1
The parties, and the Appellate Court majorities and
dissents, in both this case and the companion case,
Bell, disagree as to how the Salamon factors are to be
balanced and whether any of the six factors is disposi-
tive. Although the relative importance of the various
factors will vary depending on the context, we have
made clear that the touchstone in any Salamon case,
in assessing whether conduct associated with a rape,
robbery, or assault has independent criminal signifi-
cance as a kidnapping, is the intent of the offender. See
State v. Salamon, supra, 287 Conn. 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’’); id., 534 (intent element is what defines
abduction, the sine qua non of kidnapping); id., 542
(‘‘to commit a kidnapping in conjunction with another
crime, a defendant must intend to prevent the victim’s
liberation’’). We have continued to emphasize this point
in our subsequent Salamon cases. See, e.g., Hinds v.
Commissioner of Correction, supra, 321 Conn. 90 (‘‘the
ultimate question [is] the perpetrator’s intent in taking
these actions’’ (emphasis in original)); State v. Fields,
supra, 302 Conn. 247 (referring to Salamon instruction
as ‘‘incidental intent instruction’’); State v. Winot, 294
Conn. 753, 762, 988 A.2d 188 (2010) (‘‘we repeatedly
[have] explained [that] the touchstone for determining
whether the movement or confinement at issue consti-
tuted kidnapping was not its extensiveness, but rather,
whether it was accomplished with the requisite intent’’
(internal quotation marks omitted)). The fourth and
fifth Salamon factors—whether the restraint prevented
the victim from summoning assistance or reduced the
perpetrator’s risk of detection—must be understood in
that light.
In a scenario such as this, in which the perpetrator
removes the victims from the scene of the robbery and
restrains them after having forcibly taken their prop-
erty, we agree with the respondent that the fourth and
fifth Salamon factors are the ones that speak most
directly to the intent of the perpetrator. The goal of a
robbery is to take possession of another’s property.
Once that property has been taken by force, the purpose
of leading the victims to a different, more isolated loca-
tion and requiring that they remain there for some
period of time is, undoubtedly, to facilitate the offend-
er’s escape from the premises, undetected and unob-
structed. The Kansas Supreme Court put the point most
succinctly: ‘‘The forced direction of a store clerk to
cross the store to open a cash register is not a kidnap-
ping; locking him in a cooler to facilitate escape is.’’
State v. Buggs, supra, 219 Kan. 216. Indeed, sister state
courts have found it apparent that restraining robbery
victims after having taken their property bespeaks an
independent criminal intention to facilitate escape with-
out detection or apprehension. See, e.g., Miles v. State,
839 So. 2d 814, 820 (Fla. App. 2003).
Nothing in the record of the present case suggests
that a different result is warranted. Silk provided the
only direct evidence regarding the petitioner’s rationale
for forcing his victims into the bathrooms after robbing
them. In response to the question ‘‘what was the pur-
pose in your going into the bathroom,’’ Silk answered:
‘‘I would say just so he could get away.’’8 The petitioner
has not been able to articulate any other plausible ratio-
nale for his postrobbery treatment of the victims other
than to facilitate his escape, and none is apparent.9 In
cases involving strikingly similar fact patterns, sister
state courts have had no difficulty concluding that the
purpose for secreting and restraining robbery victims
after taking their property is to facilitate the perpetra-
tor’s escape. See, e.g., Ferguson v. State, 533 So. 2d
763, 764 (Fla. 1988) (forced confinement of restaurant
employees in restroom after robbery was ‘‘intended to
make it more difficult for the victims to identify the
perpetrator and immediately call for help’’); Richardson
v. State, 875 So. 2d 673, 678 (Fla. App. 2004) (confining
convenience store clerk in back freezer room after tak-
ing money from cash register ‘‘facilitated the robbers’
flight from the crime scene . . . and substantially les-
sened the risk of quick detection’’); State v. Buggs,
supra, 219 Kan. 215–16 (restraint or asportation that
substantially lessens risk of detection is sufficient to
constitute kidnapping). We conclude, then, that the
fourth and fifth Salamon factors also tip in the respon-
dent’s favor.
2
Turning to the sixth Salamon factor, we also agree
with the respondent that shepherding a victim at gun-
point into a back room of a retail establishment after
having robbed her invariably ‘‘create[s] a significant
danger or increase[s] the victim’s risk of harm indepen-
dent of that posed by the separate offense.’’ State v.
Salamon, supra, 287 Conn. 548. In Salamon, we sug-
gested that the distinct danger that is relevant to the
question of whether criminal conduct bears indepen-
dent significance as kidnapping need not be physical
danger. See id., 536. Criminal conduct that inspires dis-
tinct fears or has a uniquely harmful psychological
impact on the victim also qualifies. See id. (‘‘[a]mong
the evils that both the common law and later statutory
prohibitions against kidnapping sought to address were
the isolation of a victim from the protections of society
and the law and the special fear . . . inherent in such
isolation’’). Other courts and commentators have
reached the same conclusion. See, e.g., People v. Ngu-
yen, 22 Cal. 4th 872, 886, 997 P.2d 493, 95 Cal. Rptr.
2d 178 (2000) (holding that conduct that substantially
increases risk of psychological trauma to victim is legiti-
mate basis for finding separate offense); 2 A.L.I., Model
Penal Code and Commentaries (1980) § 212.1, p. 222
(discussing unique evil of kidnapping as means of ter-
rorizing victim).
Isolating and restraining victims at gunpoint after
having robbed them causes them to experience fears
that are different both in degree and in kind from the
fears that naturally accompany being robbed. This is
especially true in a highly visible commercial setting.
When a retail store or restaurant is robbed, the victim
reasonably may expect that the perpetrator will release
her and flee the premises as soon as he has taken the
property, bringing the danger to an end. When a perpe-
trator opts to restrain a victim after a commercial rob-
bery rather than leaving the premises, however, the
victim justifiably fears that her ordeal may be just begin-
ning. See, e.g., Latimore v. Barnes, Docket No. C11-5527
(SBA), 2015 WL 1406904, *2 (N.D. Cal. March 27, 2015).
The case books are filled with instances in which a
robber restrains, isolates, and/or moves his victims after
taking their money as a prelude to committing addi-
tional, more dangerous crimes. The robbery victim who
is led at gunpoint away from the visibility of a commer-
cial storefront understands that the offender may be
isolating and restraining her not merely to facilitate his
escape but as a prelude to a physical assault,10 sexual
assault,11 use of the victim as a hostage or human
shield,12 or even murder.13 The prospect is undeniably
terrifying. See, e.g., Commonwealth v. Hughes, 264 Pa.
Super. 118, 126, 399 A.2d 694 (1979); N. Kanellis, Note,
‘‘Kidnapping in Iowa: Movements Incidental to Sexual
Abuse,’’ 67 Iowa L. Rev. 773, 782 (1982).
It is undisputed that the victims in the present case
did in fact experience such heightened and distinct
psychological harm as a result of their postrobbery
asportation and restraint. One of the victims, Feltman,
testified that she feared for her life during the kidnap-
ping. Another, Kozlowski, testified that he ducked down
while imprisoned in the bathroom for fear that the peti-
tioner would shoot him through the door. Defense coun-
sel conceded as much in his closing argument,
acknowledging that ‘‘all four victims had a very hard
experience. . . . I will concede for you that . . .
Wright and . . . Feltman had probably the most diffi-
cult . . . harshest, the most traumatic experiences of
their [lives] . . . .’’
Moreover, the harms and dangers involved in a post-
robbery kidnapping are not solely psychological. Even
if the perpetrator does not plan to assault, imperil, or
kill his victims following a robbery, spiriting them at
gunpoint to a more isolated location necessarily
increases the risk that they will suffer serious physical
injury or death. See, e.g., Eaglehorse v. State, 286 N.W.2d
329, 331 (S.D. 1979); see also Note, ‘‘A Rationale of the
Law of Kidnapping,’’ 53 Colum. L. Rev. 540, 547–48
(1953). As the Supreme Court of California has
explained, ‘‘[i]t takes but little imagination to envision
the kind of violent events whose likelihood of occur-
rence is great [when a kidnapping victim is forced to
travel a great distance under the threat of injury by
a deadly weapon]. Ready examples include not only
desperate attempts by the victim to extricate himself
but also unforeseen intervention by third parties.’’ Peo-
ple v. Lara, 12 Cal. 3d 903, 908 n.4, 528 P.2d 365, 117
Cal. Rptr. 549 (1974); see, e.g., Latimore v. Barnes,
supra, 2015 WL 1406904, *4 (in assessing whether
restraint constitutes independent crime of ‘‘kidnapping
to commit robbery,’’ jury considers ‘‘whether the move-
ment increased a victim’s risk of harm . . . [including]
the danger inherent in a victim’s foreseeable attempts
to escape’’ (internal quotation marks omitted)); N.
Kanellis, supra, 67 Iowa L. Rev. 782 (‘‘[t]aking a victim
from familiar surroundings to an unknown location
. . . may aggravate the victim’s [freedom seeking]
impulses, causing the victim to attempt an escape and
thus possibly incur more serious bodily harm’’ (footnote
omitted)). Once again, one need not look far to find
cases in which a victim, fearing that kidnapping would
be a precursor to rape, assault, or murder, panicked
or tried to resist, bringing about a tragic, self-fulfilling
prophesy. See, e.g., People v. Laursen 8 Cal. 3d 192,
196, 501 P.2d 1145, 104 Cal. Rptr. 425 (1972) (motorist
was shot when resisting kidnapping during escape from
robbery), appeal dismissed and cert. denied, 412 U.S.
915, 93 S. Ct. 2738, 37 L. Ed. 2d 142 (1973); Johnson v.
State, 281 Ga. App. 7, 8, 635 S.E.2d 278 (2006) (when
robbery victim resisted being locked in camper, defen-
dant struck him in head with revolver, causing him to
fade in and out of consciousness).
3
When we examine the six Salamon factors, then, five
of the factors most often will resolve in favor of the
respondent when the perpetrator of a robbery forces
his victims to leave the relative safety of a highly visible
commercial store front and sequesters them in a more
isolated area after having robbed them. The asportation
and confinement take place after the completion of the
primary objective of the robbery. The restraint is not
inherent in the nature of the robbery, insofar as many, if
not most, robberies culminate with the offender simply
fleeing with the fruits of the robbery; leading a victim
to a back room at gunpoint is no more linked to the
crime of robbery than to rape, assault, or any other
crime. Such removal and restraint typically are for the
purpose of, and have the effect of, making it more
difficult for the victim to summon assistance and reduc-
ing the offender’s risk of detection, if not a prelude to
the commission of a distinct crime, such as a sexual
assault. Finally, the conduct necessarily subjects the
victim to unique risks and harms, both physical and
psychological, beyond those inherent in the robbery
itself. Under such circumstances, these five factors
almost invariably will outweigh the first factor—the
nature and duration of the movement and confine-
ment—which is more subjective and fact based, and
takes center stage in close cases such as Salamon.14
D
Finally, we take this opportunity to clarify some of
the language in Salamon and Hinds that has been a
source of confusion among litigants and the lower
courts, the present case included. Specifically, in Sala-
mon we stated that ‘‘[o]ur legislature, in replacing a
single, broadly worded kidnapping provision with a gra-
dated scheme that distinguishes kidnappings from
unlawful restraints by the presence of an intent to pre-
vent 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 kid-
napping 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.) State v. Salamon, supra, 287 Conn.
542. Subsequently, in Hinds, in response to the dis-
senting justices, the majority explained that, ‘‘by focus-
ing solely on whether there was any restraint or
asportation beyond that necessary for the commission
of the sexual assault, the dissenting justices ignore[d]
the ‘incidental to’ language in Salamon. . . . Restraint
may be incidental to a sexual assault that is not neces-
sary for its commission.’’ (Citations omitted; emphasis
omitted.) Hinds v. Commissioner of Correction, supra,
321 Conn. 89–90.
We did not invent the highlighted language in Sala-
mon. Substantially similar articulations of the ‘‘inciden-
tal and necessary’’ test appeared in the decisions of
many of our sister states prior to Salamon. See, e.g.,
People v. Daniels, 71 Cal. 2d 1119, 1139, 459 P.2d 225,
80 Cal. Rptr. 897 (1969); Cejvanovic v. State, Docket
No. 05-1226, 2006 WL 3614067, *2 (Iowa App. December
13, 2006) (decision without published opinion, 728
N.W.2d 223); State v. Robbins, 272 Kan. 158, 175, 32
P.3d 171 (2001); State v. Rogers, 17 Ohio St. 3d 174,
181, 478 N.E.2d 984, vacated on other grounds, 474 U.S.
1002, 106 S. Ct. 518, 88 L. Ed. 2d 452 (1985); State v.
Atkin, 135 P.3d 894, 898–99 (Utah App.), cert. denied,
150 P.3d 58 (Utah 2006); State v. Harris, Docket No.
55561-8, 2006 WL 2246194, *2 (Wn. App. August 7, 2006)
(decision without published opinion, 134 Wn. App.
1029), review denied, 160 Wn. 2d 1015, 161 P.3d 1027
(2007). Nevertheless, that language, both on its own
and in conjunction with the cited language in Hinds,
has led to confusion about, first, what it means for force
or restraint to be necessary to the commission of a rape,
robbery, or assault, and, second, whether the incidental
and necessary test is to be understood as conjunctive
or disjunctive. That is, does Salamon apply only when
an offender’s conduct is not only incidental to but also
necessary to commit the underlying crime, or is a defen-
dant entitled to Salamon’s protections if either prong
of the test applies (if, for example, restraint of the victim
was incidental to a sexual assault but was not necessary
to accomplish the assault). Both questions are front
and center in the present case, in which the parties
disagree over the proper application of the incidental
and necessary test.
With respect to the meaning of the word ‘‘necessary,’’
greater clarity may be achieved and ambiguities
resolved by emphasizing three points often made by
sister state courts. First, although restraint is not strictly
necessary to accomplish a rape, robbery, or assault—
restraint is not an essential element of those crimes—
some degree of restraint, whether by physical force
or threat and fear, almost always accompanies their
commission. See Frederick v. State, 931 So. 2d 967, 970
(Fla. App. 2006); State v. White, 362 S.W.3d 559, 568
(Tenn. 2012). We have used the word ‘‘necessary’’ in
that spirit.
Second, our statement that kidnapping requires pre-
vention of the victim’s liberation for a longer period of
time or to a greater degree than that which is necessary
to commit the underlying crime does not mean that an
offender must commit the underlying crime in the least
intrusive manner lest he be subjected to criminal liabil-
ity for kidnapping. Hinds itself is an excellent illustra-
tion of this point. We suggested in that case that if, for
example, a jury concluded that the petitioner decided
to move his victim the short distance from the parking
lot where he abducted her to a nearby grassy area not
to avoid detection or identification but, rather, because
‘‘he could not perform in the lit space [of the parking
lot], or simply to avoid the hard paved surface while
kneeling on the ground [as he assaulted her]’’; Hinds
v. Commissioner of Correction, supra, 321 Conn. 80;
then there was no indication that our legislature
intended to criminalize his conduct as kidnapping
merely because the act might have been completed less
intrusively. See id., 79–80.
Third, one complication of thinking about necessity
in this manner is that doing so forces a reviewing court
to confront thorny, angels on the head of a pin questions
about the degree of restraint employed in any particular
crime. Could an offender have accomplished a rape,
robbery, or assault using less restraint? Would an under-
lying crime committed less intrusively have been the
same crime?
 To avoid having to confront these sorts of prickly
metaphysical and counterfactual questions, sister state
courts have framed the issue in terms of whether the
restraint involved in a crime reflects a different criminal
intention or creates a different risk of harm than that
necessarily present in the underlying crime.15 In other
words, the jury looks not to whether each of the offend-
er’s specific physical actions was strictly necessary to
commit the underlying crime but, instead, to whether
his actions demonstrated an animus or purpose beyond
that necessarily involved in the underlying crime (e.g.,
to wrongfully obtain property from, sexually violate, or
physically injure the victim) or whether they imposed
harms or risks on the victim beyond those that necessar-
ily accompany any rape, robbery, or assault.
Understanding Salamon in this way also resolves
the second question that divided the parties and the
members of the Appellate Court in this case and the
companion case, namely, whether conduct that is
merely incidental to but goes beyond that necessary to
commit the underlying crime satisfies the legislative
definition of kidnapping. The cited language from Sala-
mon is ambiguous and, arguably, consistent with either
party’s interpretation. Certainly, in Hinds, we suggested
that the reading favored by the petitioner is the correct
one; conduct that is wholly incidental to the commis-
sion of an underlying crime cannot qualify as kidnap-
ping, regardless of whether it is strictly necessary to
commit that crime. See id., 89–90. Understanding neces-
sity in the manner that we have suggested is consistent
with that approach.
It also is consistent with the approach followed by
many of our sister state courts, on whose decisions we
relied in Salamon. See State v. Salamon, supra, 287
Conn. 518, 527 and n.16. Those courts speak of
restraints or restrictions on a victim’s liberty as being
merely incidental to the underlying crime, necessary to
commit the underlying crime, inherent in the nature
of the underlying crime, and having no independent
criminal significance, often using those and related
expressions more or less interchangeably. See, e.g.,
United States v. Santistevan, 25 M.J. 123, 126 (C.M.A.
1987); Mackerley v. State, 754 So. 2d 132, 137 (Fla. App.
2000), quashed on other grounds, 777 So. 2d 969 (Fla.
2001); State v. Martin, 222 N.C. App. 213, 221, 729 S.E.2d
717, review denied, 366 N.C. 413, 735 S.E.2d 187 (2012),
and review dismissed, 372 N.C. 300, 826 S.E.2d 710
(2019); see also F. Wozniak, Annot., ‘‘Seizure or Deten-
tion for Purpose of Committing Rape, Robbery, or Other
Offense as Constituting Separate Crime of Kidnapping,’’
39 A.L.R.5th 283, 357, § 2[a] (1996) (describing tests
used by different jurisdictions as being more or less
formulaic ‘‘but not substantially different’’). Our own
cases have, at times, followed the same approach. See,
e.g., State v. Fields, supra, 302 Conn. 247, 252 (citing
Salamon and conflating independent criminal signifi-
cance, conduct that is not merely incidental to underly-
ing offense, and restraint beyond that necessary to
commit underlying offense).
These various terms, then, are merely different ways
of expressing the same concept, namely, whether the
restraint imposed evidenced an independent criminal
intent or subjected the victims to risks distinct from
those necessarily entailed by or inherent in the underly-
ing offenses. The six Salamon factors offer a useful
framework for answering those questions.
IV
We therefore conclude that the petitioner cannot
prevail on his claim under Salamon because the respon-
dent has demonstrated, in light of the undisputed facts
presented at trial, that the absence of the instruction
mandated by Salamon gave rise to no discernible risk
of prejudice, let alone a risk sufficient to undermine
confidence in the verdict, such that a properly
instructed jury would have found the petitioner guilty
beyond a reasonable doubt. Indeed, as we explained,
we agree with our sister state courts, which have con-
cluded, as a matter of law, that, when a perpetrator,
having taken his victims’ valuables, then leads them at
gunpoint away from a highly visible commercial store-
front and confines them in an isolated area of the store
while he makes his escape, thereby exposing them to
new and different risks, such conduct is not inherent
in the nature of the robbery but, rather, indisputably
has independent criminal significance.16
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
render judgment affirming the judgment of the habeas
court.
In this opinion ROBINSON, C. J., and MULLINS and
KAHN, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** May 12, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
As we explain more fully hereinafter, the Brecht harmless error standard,
as we apply it in the context of Salamon errors, requires essentially the
same showing as that required for constitutional claims alleging ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and suppression of material, exculpatory
evidence under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L.
Ed. 2d 215 (1963).
2
The relevant statutory text is discussed in part III B of this opinion.
3
After Luurtsema, we held, in Hinds v. Commissioner of Correction,
321 Conn. 56, 136 A.3d 596 (2016), that the procedural default rule does not
bar postconviction claims that the trial court failed to instruct the jury as
required under Salamon in cases rendered final before our decision in
Salamon. Id., 61. We discuss our decision in Hinds in greater detail in parts
II B and III D of this opinion.
4
After granting certification to appeal, this court ultimately determined
in Epps that certification had been improvidently granted and dismissed
the respondent’s appeal. See Epps v. Commissioner of Correction, 327
Conn. 482, 485, 175 A.3d 558 (2018).
5
As Justice Scalia noted in his concurring opinion in Dominguez Benitez,
we also would observe that the very same critique can be leveled with
respect to the other standards of prejudice/harmless error that we regularly
apply. See United States v. Dominguez Benitez, supra, 542 U.S. 86–87 (Scalia,
J., concurring in the judgment) (‘‘Such ineffable gradations of probability
seem to me quite beyond the ability of the judicial mind (or any mind) to
grasp, and thus harmful rather than helpful to the consistency and rationality
of judicial [decision making]. That is especially so when they are applied
to the hypothesizing of events that never in fact occurred. Such an enterprise
is not [fact-finding], but closer to divination.’’).
6
The first concurrence also queries, first, why it is necessary to decide
by which standard to assess the harmfulness of Salamon errors on collateral
review and, second, whether it is fair to apply Brecht in the petitioner’s
case when our trial courts and the Appellate Court, acting without the
benefit of this opinion, have in the past applied Neder to other petitioners’
Salamon claims. The short answer to the first question is that it ordinarily
is the duty of this court to clarify the law when called on to do so in the
context of a justiciable case. In the present case, the respondent contends
that the Appellate Court has applied the incorrect harmless error standard,
and this court granted certification to address that question. Banks v. Com-
missioner of Correction, 330 Conn. 950, 197 A.3d 391 (2018). Although it
is true that, on rare occasion, we refrain, for prudential reasons, from
resolving a legal question that is squarely and properly before us, that is
the exception rather than the rule, and we perceive no compelling reason
why we should shrink from our duty in this instance. The fact that today’s
ruling potentially may impact a relatively small universe of future cases
surely does not justify a failure to resolve the certified question, especially
as the companion case itself demonstrates the broad range of configurations
in which Salamon claims may present themselves.
We are no more troubled by the first concurrence’s second charge. It is
not at all uncommon for courts of last resort—the United States Supreme
Court not least among them—to allow difficult legal questions to percolate
in the lower courts for some time before ultimately resolving them. This,
and the very nature of our judicial system, means that appellate tribunals
frequently will resolve legal controversies in novel ways, such that future
litigants are subject to rules different from those that bound past litigants.
Far from unfair, this is the very essence of the common law. To hold
ourselves yoked to a legal rule simply because the lower courts previously
have applied it would be to turn the concept of controlling legal authority
on its head. This we decline to do.
7
We note that one of our Salamon cases, namely, State v. Flores, 301
Conn. 77, 79, 17 A.3d 1025 (2011), did involve an underlying robbery and a
conviction under § 53a-92 (a) (2) (B). In that case, we concluded that the
lack of a Salamon instruction was not harmless error because, among other
things, the victim was released immediately after the defendant forcibly
took her property and the state did not argue that the restraint occurred
for any longer than was necessary to commit the robbery. Id., 85, 87. For
that reason, Flores is readily distinguishable from the present case.
8
There also was testimony that the petitioner originally sought to force
his victims into the basement, which would have further isolated them, until
he was informed that the stores had no basement.
9
Indeed, in his brief to this court, the petitioner essentially acknowledges
that the victims were forced into the bathroom to facilitate his escape,
stating that ‘‘it is conceivable that jurors would view the fact that [the]
petitioner moved the employees into the bathrooms so that he could escape
as being part and parcel of the robberies.’’ (Emphasis added.)
10
See, e.g., People v. Shay, 60 App. Div. 2d 698, 698, 400 N.Y.S.2d 383 (1977).
11
See, e.g., Lovette v. State, 636 So. 2d 1304, 1305–1306 (Fla. 1994); Mills
v. State, 236 Ga. 365, 365, 223 S.E.2d 725 (1976); State v. Coleman, 865
S.W.2d 455, 456 (Tenn. 1993).
12
See, e.g., State v. Vue, Docket No. C4-92-86, 1992 WL 153093, *2 (Minn.
App. July 7, 1992); People v. Addison, 151 App. Div. 2d 372, 372, 543 N.Y.S.2d
74, appeal denied, 74 N.Y.2d 946, 549 N.E.2d 483, 550 N.Y.S.2d 281 (1989),
and appeal denied, 74 N.Y.2d 946, 549 N.E.2d 483, 550 N.Y.S.2d 281 (1989).
13
See, e.g., Lovette v. State, 636 So. 2d 1304, 1305–1306 (Fla. 1994); State
v. Robinson, Docket No. 01C01-9207-CR-00234, 1993 WL 273953, *3 (Tenn.
Crim. App. July 22, 1993).
14
We note that our conclusion that removing and restraining a victim after
a robbery to facilitate the perpetrator’s escape usually holds independent
criminal significance does not mean that there could not be close cases in
which the failure to submit the question to a jury would constitute prejudicial
error. For example, we would hesitate to find harmless a trial court’s failure
to give the jury a Salamon instruction in a case in which the alleged postrob-
bery conduct involved no asportation and only minimal restraint, such as
a parting order that the victim lie on the ground or ‘‘don’t be a hero.’’ See,
e.g., Hill v. State, 642 So. 2d 796, 797–98 (Fla. App. 1994) (jury could find
restraint was incidental to robbery when perpetrators merely forced victims
to lie down on floor before escaping); State v. White, 362 S.W.3d 559, 562–63
(Tenn. 2012) (whether confinement was incident to robbery was question
for jury when defendant, while leaving scene of robbery, removed telephones
and directed victims to lie down on floor and wait eight or nine minutes).
It is debatable, for example, whether the victims are placed at increased
risk of harm under such circumstances. The present case, however, is funda-
mentally different from those cases. The petitioner took each victim at
gunpoint to a different, more isolated part of the store, where he ordered
them to remain confined in an enclosed space and attempted to block
their escape.
15
See, e.g., People v. Daniels, supra, 71 Cal. 2d 1139 (‘‘the intent of the
[California] [l]egislature . . . was to exclude from [the] reach [of the felony
kidnapping statute] not only standstill robberies . . . but also those in
which the movements of the victim are merely incidental to the commission
of the robbery and do not substantially increase the risk of harm over and
above that necessarily present in the crime of robbery itself’’ (citation
omitted; emphasis added; internal quotation marks omitted)); State v. Hart-
ley, Docket No. 90AP-859, 1991 WL 132417, *6 (Ohio App. July 18, 1991)
(because ‘‘the kidnapping by deception in order to lure [the victim] to a
place where he could be raped involved a separate animus from the restraint
necessary to effectuate the rape . . . the trial court properly sentenced the
[defendant] to consecutive sentences for rape and kidnapping’’); State v.
Rollins, 605 S.W.2d 828, 830 (Tenn. Crim. App. 1980) (‘‘a number of courts
have held that the forced movement of a crime victim during the course of
a crime [that] is merely incidental to the perpetration of the crime, as from
one room of a house to another, is not kidnapping if there is no substantially
increased risk of harm over and above that necessarily present in the crime
of robbery itself’’ (emphasis added)); State v. Williams, Docket No. 36772-
2-I, 1997 WL 469623, *3 (Wn. App. August 18, 1997) (relevant issue to consider
in determining if confinement, movement or detention is sufficient to warrant
separate kidnapping conviction is ‘‘whether the defendant’s conduct substan-
tially increased [the] risk of harm over and above that necessarily present
in the [underlying] crime . . . itself’’ (internal quotation marks omitted)),
review denied, 134 Wn. 2d 1026, 958 P.2d 315 (1998).
16
Consequently, it is apparent, as Judge Keller concluded; see Banks v.
Commissioner of Correction, supra, 184 Conn. App. 133 (Keller, J., dis-
senting); that the petitioner could not prevail on his claim, even if we agreed
with him that the respondent was required to establish harmlessness beyond
a reasonable doubt. The concurring justices do not disagree with this con-
clusion.