Bell v. Comm'r of Corr.

• Decision Date: 12 May 2021
• Docket Number: SC 20223
• Citation: 339 Conn. 79,259 A.3d 1073
• Parties: Leon BELL v. COMMISSIONER OF CORRECTION
• Court: Connecticut Supreme Court

339 Conn. 79

259 A.3d 1073

Leon BELL

v.COMMISSIONER OF CORRECTION

SC 20223

Supreme Court of Connecticut.

Argued December 16, 2019

Officially released May 12, 2021^**

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, former state's attorney, and Tamara Grosso, assistant state's attorney, for the appellant(respondent).

David B. Rozwaski, assigned counsel, for the appellee(petitioner).

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

PALMER, J.

This appeal and the companion case we also decide today;seeBanks v. Commissioner of Correction , 339 Conn. 1, 259 A.3d 1082(2021); invite us to further clarify our decision in State v. Salamon , 287 Conn. 509, 949 A.2d 1092(2008), in which we overruled our long-standing interpretation of Connecticut'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 defendant is entitled to a jury instruction that he cannot be convicted of kidnapping if the restraint imposed on the victim was merely incidental or necessary to the underlying crime.Seeid., at 542–50, 949 A.2d 1092.In Banks , we answered two questions left open by Salamon and its progeny.First, we clarified that, in a habeas action, the harmlessness of a Salamon error is to be assessed according to the legal standard that the United States Supreme Court articulated in Brecht v. Abrahamson , 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353(1993), which mandates a new trial if the instructional error "had [a] substantial and injurious effect or influence in determining the jury's verdict"; (internal quotation marks omitted)id., at 623, 113 S. Ct. 1710; rather than the standard set forth in Neder v. United States , 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35(1999), which requires a new trial unless it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the [instructional] error ...."Id., at 18, 119 S. Ct. 1827;seeBanks v. Commissioner of Correction , supra, at 4, 259 A.3d 1082.Second, when, as in Banks , it is clear that a perpetrator moved and restrained his victims, after having robbed them, for the purpose of escaping unobstructed and undetected from the crime scene, a habeas court may conclude as a matter of law that the lack of a Salamon instruction was harmless error.SeeBanks v. Commissioner of Correction , supra, at 44-45, 259 A.3d 1082.As we explain more fully hereinafter, in the present case, unlike in Banks;seeid., at 45, 259 A.3d 1082; it is not clear that the petitioner, Leon Bell, forcibly moved and restrained his victims after having taken property in their possession.For that reason, we can have no fair assurance that the Salamon error did not have a substantial and injurious effect or influence in determining the jury's verdict.Put differently, following a thorough, de novo review of the record, we cannot be confident that a properly instructed jury would have found the defendant guilty beyond a reasonable doubt.Accordingly, we affirm the judgment of the Appellate Court, which reversed the judgment of the habeas court denying Bell's habeas petition and ordered a new trial on the kidnapping charges.Bell v. Commissioner of Correction , 184 Conn. App. 150, 173, 194 A.3d 809(2018).

I

In 2001, the petitioner was arrested and charged in connection with the robberies of two Friendly's restaurants, the first in Manchester and the second in Glastonbury.Id., at 153, 194 A.3d 809.The two cases were consolidated and tried jointly before a jury in 2002.Seeid.The facts that the jury reasonably could have found with respect to both robberies are set forth in the opinion of the Appellate Court.

"At approximately 1 a.m. on April 12, 2001, Cheryl Royer was the last employee to leave the Friendly's restaurant in Manchester.As she was exiting the restaurant, the petitioner approached her, stated that he had a gun, and ordered her to ‘get back inside’ and to ‘give him the money.’Once Royer informed the petitioner that she did not have any money, the petitioner told her ‘to get the money from the safe.’The petitioner and Royer entered the restaurant together and walked to the manager's office, the location of the safe.Royer then opened the safe at the petitioner's direction and ‘was told to sit in the chair in the corner and turn away.’After approximately ‘[one] minute’ or ‘[a] matter of minutes’[during which Royer was] sitting in the chair, the petitioner told Royer ‘to go into the walk-in refrigerator.’The walk-in refrigerator was approximately fifteen feet down the hall from the manager's office, and, after the petitioner finished looting the safe, he ordered Royer to proceed into the refrigerator.Once she entered the refrigerator, and after the refrigerator door shut behind her, the petitioner told her ‘to stay in there for fifteen minutes.’Royer smoked part of a cigarette, and, after a few minutes, she left the refrigerator and ran into the office to call the police.The petitioner was not in the restaurant when Royer exited the refrigerator.

"Two days later, on April 14, 2001, at approximately 6 a.m., Tricia Smith was the first employee to arrive for the opening shift at the Friendly's restaurant in Glastonbury.As she entered the restaurant, the petitioner approached her from behind and ‘told [her] to turn off the alarm.’Smith testified: ‘He told me—he asked me where the safe was, I told him it was in the back dish room, [and]he told me to go back and open it.’Smith did not see a gun, but the petitioner had something underneath his jacket that looked like one.Smith led the petitioner to the safe, and, after opening it, ‘[the petitioner] told [her] to go into the walk-in cooler.So [she] unlocked it and got in.’The walk-in refrigerator was ten feet away from the safe, and the petitioner ordered Smith into the refrigerator ‘[j]ust two [or] three minutes’ after she first saw him.Once she was inside the refrigerator, the petitioner told her that ‘he would let [her] know when he was finished’ and when it was safe to come out.Approximately two minutes after entering the refrigerator, Smith heard the petitioner say something that she could not make out.‘[She] then waited a few more minutes after that’ before she peeked out of the refrigerator to see if the petitioner had left the restaurant.Seeing that the petitioner had left, she exited the refrigerator and ran to the nearby gas station for help.

"Finally, although the petitioner did not testify at [his criminal] trial, his statement to the police was read into the record and became a full exhibit.In that statement, he confessed to both robberies.With respect to the Manchester robbery involving Royer, his statement provided in relevant part: ‘Once we were in the back room, [Royer] opened the safe.After she opened the safe, I asked her which one—which one is the walk-in refrigerator.She pointed to one, and I asked her to step in there for a minute and I'll come back and get you when I'm through.I then took the money out of the safe. ...After I got the money, I left.The manager was still in the refrigerator when I left.’With respect to the Glastonbury robbery involving Smith, the petitioner's statement provided in relevant part: ‘The only other robbery I did was the one in Glastonbury this morning, [April 14, 2001]. ...I told [Smith] to open the safe. ...After she opened the safe, I told her to get in the refrigerator.After I got the money from the safe, I left.’ "(Footnote omitted.)Id., at 160–62, 194 A.3d 809.

The jury found the petitioner guilty of two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a)(2)(B),¹ two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a)(4), two counts of burglary in the third degree in violation of General Statutes § 53a-103 (a), and two counts of larceny in the third degree in violation of General Statutes(Rev. to 2001)§ 53a-124 (a)(2).The trial court rendered judgment in accordance with the jury verdict and sentenced the petitioner to a total effective term of imprisonment of thirty-six years.

The Appellate Court rejected the petitioner's claims on direct appeal, and this court denied his petition for certification to appeal.SeeState v. Bell , 93 Conn. App. 650, 652, 891 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101(2006).At no time on direct appeal did the petitioner challenge the propriety of the trial court's jury instructions on kidnapping.

Subsequently, in 2008, "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 Salamon] 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 statutes 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...