Hinds v. Comm'r of Corr.

• Decision Date: 05 August 2014
• Docket Number: Nos. 35043,35081.,s. 35043
• Citation: 97 A.3d 986,151 Conn.App. 837
• Parties: Walter HINDS v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

151 Conn.App. 837

97 A.3d 986

Walter HINDS

v.COMMISSIONER OF CORRECTION.

Nos. 35043, 35081.

Appellate Court of Connecticut.

Argued March 11, 2014.

Decided Aug. 5, 2014.

Erika L. Brookman, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, Mary M. Galvin, former state's attorney, and Michael E. O'Hare, former senior assistant state's attorney, for the appellant-appellee (respondent).

Adele V. Patterson, senior assistant public defender, for the appellee-appellant (petitioner).

LAVINE, ALVORD and BISHOP, Js.

BISHOP, J.

In this habeas corpus action, the petitioner, Walter Hinds, appeals from the judgment dismissing the second count of his petition. In support, the petitioner claims that the habeas court incorrectly determined that the cumulative effect of the trial court's alleged errors in his underlying criminal trial did not deprive him of a fair trial. The respondent, the Commissioner of Correction (commissioner), in turn, appeals from the judgment granting the petitioner a new trial on the first count of the petition. The commissionerclaims that the habeas court incorrectly concluded that the petitioner was not procedurally defaulted from asserting his habeas claims and that the court, on the merits, incorrectly determined that the petitioner was denied a fair trial on the count in question. We affirm the judgment of the habeas court.¹

The following undisputed facts and procedural history are relevant to our consideration of the issues on appeal. Following a trial to the jury, the petitioner was found guilty of kidnapping in the first degree in violation of General Statutes § 53a–92 (a)(2)(A) and sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(1). The petitioner was thereafter given consecutive sentences of twenty years and twenty-five years imprisonment for a total effective sentence of forty-five years incarceration. The petitioner remains in the custody of the commissioner.

Following the judgment of conviction and sentencing, the petitioner appealed to this court, which, in turn, affirmed the judgment. State v. Hinds, 86 Conn.App. 557, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005).² In its opinion, this court recited the following legally relevant factual history: “On August 28, 2000, sixteen year old high school student K was working as a cashier at the Super Stop & Shop supermarket in Milford. After finishing work at approximately 9 p.m., K left the store and started on foot to a friend's apartment that was approximately five minutes away. The route K followed required her to walk past buildings adjacent to Super Stop & Shop, to cross Seeman's Lane and to cut through the property of In–Line Plastics Tool Company (In–Line Plastics). As she crossed Seeman's Lane, K noticed a pickup truck exit the driveway of In–Line Plastics, reenter the parking area and come to a stop. As she walked past the truck, she turned around and observed that the driver had exited the vehicle and was walking behind her. She continued walking and, upon turning around again, she saw that the driver was right behind her and wearing only underwear and a sleeveless shirt. Although it was nighttime, the area was lit by lights on the surrounding buildings, enabling her to see the driver's face.

“At that point, K started to run. The [petitioner] ran after K, grabbed her and put one of his hands around her waist and his other hand over her mouth. He instructed her not to scream or he would kill her. The [petitioner] then threw K to the pavement and dragged her by the legs into the bushes behind the In–Line Plastics building. The [petitioner] sat on her chest with his feet on the outside of her arms and instructed K to open her mouth. He inserted his penis into her mouth and forced her to perform fellatio on him, ejaculating into her mouth. The [petitioner] then patted her on the cheek and told her she could leave. Too afraid to move, K remained where she was and, as the [petitioner] walked back toward his truck, pleaded with him not to kill her, telling him that she would not tell anybody what had happened. The [petitioner] turned around and looked at K, enabling her to see his face again. He then entered his truck and drove away.” (Footnote omitted.) Id. at 559–60, 861 A.2d 1219.

In 2008, following his conviction and unsuccessful direct appeal, the petitioner brought a habeas corpus petition in four counts. Hinds v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–03–0823519–S, 2009 WL 2961212 (July 22, 2009). In the first count, the petitioner set forth various allegations of trial counsel's purported ineffectiveness. Id. In count two, the petitioner alleged that the trial judge made prejudicial comments and erred in ordering that the petitioner remain shackled during trial. Id. In count three, he alleged that the cumulative errors of the trial court and his trial counsel deprived him of a fair trial. Id. And, in count four, he alleged that he was actually innocent of the crimes for which he was convicted. Id. Following a habeas trial, the court denied the petition. Id. On review, this court dismissed the appeal. Hinds v. Commissioner of Correction, 126 Conn.App. 905, 12 A.3d 1099, cert. denied, 301 Conn. 901, 17 A.3d 1043 (2011).

On October 20, 2009, the petitioner brought this petition. In a two count amended petition, filed April 5, 2012, the petitioner alleged that (1) his conviction of kidnapping in the first degree should be reversed due to constitutional errors in the jury charge; and (2) multiple errors by the trial court, deemed harmless on direct review, had the cumulative effect of violating his rights to due process of law and a fair trial. In response to the amended petition, the commissioner filed a return alleging, inter alia, that the petitioner's claim regarding the trial court's jury instruction was procedurally defaulted on the basis of the petitioner's failure to raise the jury instruction issue at trial and on direct appeal. The commissioner asserted, as well, that the claim regarding the purported cumulative effect of multiple errors by the trial court was procedurally defaulted and that a claim premised on the aggregation of nonconstitutional errors is not cognizable at law.

In his reply to the return, the petitioner claimed, as to the alleged instructional deficiency, that he should not be procedurally defaulted. He further claimed that, if the doctrine of procedural default applies, he can demonstrate good cause for his failure to raise the instructional claim at trial and that he was prejudiced by the trial court's failure to instruct the jury properly regarding the kidnapping charge. In response to the commissioner's return regarding the second count, the petitioner alleged that the claim regarding multiple errors by the trial court did not arise until this court, on direct review, found that multiple errors had taken place. Additionally, the petitioner claimed that he brought the second count to protect the record for purposes of exhaustion and in the event of a future change in the law regarding whether nonconstitutional missteps by the trial court can be aggregated in assessing whether they had the cumulative effect of denying him a constitutionally fair trial.

Following a trial, the habeas court granted count one of the petition, vacated the petitioner's conviction and sentence on the kidnapping charge and remanded the case to the trial court for further proceedings. The habeas court also denied the petitioner's claim set forth in the second count, which was premised on the cumulative effect of trial court errors. Thereafter,the court granted the commissioner's petition for certification to appeal from the judgment as to the first count and granted the petitioner certification to appeal from the denial of relief on the second count of the petition. This consolidated appeal followed.

IJURY INSTRUCTIONS

We review the court's determination as to each count in turn. As to the first count, regarding the trial court's jury instruction, the petitioner alleges that the court failed to charge the jury in accordance with the jury instruction set forth by our Supreme Court in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). In Salamon, the court held that “to commit a kidnapping 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.” Id. at 542, 949 A.2d 1092. The court further stated: “[A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has 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 relevant factors, including the nature and duration of the victim's movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant's risk of detection and whether the restraint created a significant danger or increased the victim's risk of harm...