John B. v. Commissioner of Correction

Citations

• 194 Conn. App. 767

Syllabus

The petitioner, who had been convicted of, inter alia, the crimes of attempt to commit kidnapping in the first degree and attempt to commit sexual assault in the first degree, sought a writ of habeas corpus, claiming, inter alia, that under current case law interpreting the kidnapping statutes, including State v. Salamon (287 Conn. 509), his due process rights under the federal and state constitutions were violated due to the trial court's failure to properly instruct the jury. The petitioner's conviction stemmed from his conduct in bursting through the door of the victim's apartment, choking her and engaging in a physical struggle with her, after which he dragged her out of the apartment and into a nearby hallway. Eventu- ally the struggle moved outdoors, where a bystander heard the victim's screams and restrained the petitioner until the police arrived. While at the police station, the petitioner admitted that he intended to bring the victim back to his apartment to rape and torture her. Although the trial court did not instruct the jury that in order to find the petitioner guilty of attempted kidnapping, it had to find that he intended to restrain the victim to a greater degree than was necessary to commit sexual assault, the habeas court concluded that the trial court was not required to give a Salamon instruction and that even if it had been required to do so, the absence of a Salamon instruction was completely harmless because there was no reasonable possibility that a jury instructed pursuant to Salamon would have reached a different result than it did. Accordingly, the habeas court rendered judgment denying the amended petition, and, thereafter, granted the petition for certification to appeal, and the petitioner appealed to this court. Held: 1. The petitioner's claim that the habeas court's failure to give the jury a Salamon instruction was not harmless error was unavailing, that court having properly concluded, on the basis of the evidence, that the peti-