Banks v. Commissioner of Correction

• Decision Date: 12 May 2021
• Docket Number: SC 20222
• Citation: 259 A.3d 1082,339 Conn. 1
• Parties: Mark BANKS v. COMMISSIONER OF CORRECTION
• Court: Connecticut Supreme Court

339 Conn. 1

259 A.3d 1082

Mark BANKS

v.COMMISSIONER OF CORRECTION

SC 20222

Supreme Court of Connecticut.

Argued December 16, 2019

Officially released May 12, 2021^*

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).

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.^**

PALMER, J.

In this certified appeal and the companion case decided herewith; see Bell v. Commissioner of Correction , 339 Conn. 79, 259 A.3d 1073 (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., at 542–50, 949 A.2d 1092. 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] substantial 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 Correction, correctly conclude, as a matter of law, that a Salamon 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 Correction , 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 proceedings 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 Salamon was harmless. Accordingly, we reverse the judgment 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. Commissioner of Correction , supra, 184 Conn. App. at 140–43, 194 A.3d 780 (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 [Kozlowski and Silk] ... down to the hallway into the bathroom and ... he then put [them] into the bathroom 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, basically, 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 Newington 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 pointing 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 Kozlowski 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 petitioner was still on the first floor.

"In the second case, Kelly Wright testified that she was working at the Southington Bedding Barn on September 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 petitioner 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 petitioner 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 testified 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. Feltman 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...