State v. Kitchens, No. 18421.

• Court: Supreme Court of Connecticut
• Writing for the Court: ROGERS
• Citation: 10 A.3d 942,299 Conn. 447
• Parties: STATE of Connecticut v. Marvin KITCHENS.
• Decision Date: 05 January 2011
• Docket Number: No. 18421.

10 A.3d 942
299 Conn. 447

STATE of Connecticut
v.
Marvin KITCHENS.

No. 18421.

Supreme Court of Connecticut.

Argued March 23, 2010.
Decided Jan. 5, 2011.^*

10 A.3d 946

Meghan L. Greco, special public defender, with whom was Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Herbert Carlson, former supervisory assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.^**

ZARELLA, J.

299 Conn. 449

The defendant, Marvin Kitchens, appeals ¹ from the judgment of conviction,

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rendered after a jury trial, of kidnapping in the second degree in violation of General Statutes § 53a-94 (a) ² and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a).³ On appeal, the defendant claims that the trial court improperly (1) failed to instruct the jury,

299 Conn. 450

in accordance with State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), that any confinement or movement of the victim had to exceed that which was incidental or necessary to the commission of the underlying offenses, and (2) included in its jury instructions the conduct element of the statutory definition of intent under General Statutes § 53a-3 (11),⁴ even though kidnapping and unlawful restraint are specific intent crimes.⁵ We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On the night of April 19, 2007, the victim, Jennaha Ward, was playing cards with her godfather, Ronald Sears, at Sears' second story apartment in the city of Hartford. While playing cards, the victim and Sears decided to eat, and Sears went out and purchased shrimp for them to fry. The victim then prepared the shrimp while Sears heated cooking oil in a cast iron skillet. While they were eating the shrimp, the defendant called Sears' cell phone looking for the victim, with whom the defendant had been in a five month extramarital relationship that the victim recently had ended. The defendant told the victim that he was around the corner

299 Conn. 451

from Sears' apartment and asked whether she would come down and talk to him, and the victim said that she would. The victim, however, did not intend to speak to the defendant. Rather, she went downstairs to lock the door to make sure that he could not get inside. When the victim reached the first floor landing, she jumped up to look out the window above the door to see whether

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the defendant had arrived yet. As soon as she landed back on her feet, he burst through the door, grabbed her by her clothing and pulled her outside. After the defendant heard a woman say that she was calling the police, he again grabbed the victim by her clothing and dragged her back inside and upstairs to Sears' apartment.

Once upstairs in the apartment, the defendant asked the victim why she had ended their relationship and physically ⁶ blocked her from leaving the apartment when she tried to run out the door. Following the altercation that ensued between the defendant and the victim, during which Sears asked them to take their dispute outside, she sustained first and second degree burns to her face after her head made contact with the skillet containing the frying oil. ⁷ The defendant then fled the apartment, at which time Sears called for the police

299 Conn. 452

and emergency assistance. The victim received treatment for her facial burns at Saint Francis Hospital and Medical Center, and the Burn Center at Bridgeport Hospital.

After a police investigation,⁸ the defendant was arrested, and the state charged him in a five count information with assault in the first degree in violation of General Statutes § 53a-59 (a)(1), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a)(2) and 53a-49 (a)(2), burglary in the second degree in violation of General Statutes (Rev. to 2007) § 53a-102 (a)(1), kidnapping in the second degree in violation of § 53a-94 (a), and unlawful restraint in the first degree in violation of § 53a-95 (a). Following a jury trial and the trial court's denial of defense counsel's oral motion for judgment of acquittal, the jury returned a verdict of not guilty on the assault, attempted assault and burglary charges, but guilty on the kidnapping and unlawful restraint charges. The trial court then rendered judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of twelve years imprisonment, execution suspended after eight years, and five years probation. This appeal followed.

I

The defendant first claims that the trial court failed to instruct the jury, in accordance with the line of cases starting with State v. Salamon, supra, 287 Conn. 509, 949 A.2d 1092, that it could not find the

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defendant guilty of kidnapping if the restraint or movement of the victim was limited

299 Conn. 453

to that necessary or incidental to the commission of an underlying offense. Relying on footnote 35 of the majority opinion in Salamon, the defendant argues that he was entitled to this instruction because a reasonable jury could have found that the restraint in this case was incidental to the underlying offense of assault, notwithstanding the fact that the jury had found him not guilty on that charge. In response, the state, relying on our recent decision in State v. Winot, 294 Conn. 753, 762 n. 7, 988 A.2d 188 (2010), contends that a new trial is not required under Salamon because the defendant had completed the crime of kidnapping before engaging in the conduct that gave rise to the assault and attempted assault charges of which he was acquitted, and that the force underlying the assault charges was different from that utilized to accomplish the kidnapping. The state also contends that the acquittal on the assault charges rendered any failure to give the Salamon instruction harmless error not requiring reversal because an acquittal on those charges is a binding determination that there were no underlying crimes and, further, would create confusion on retrial. We agree with the state and conclude that the acquittal on the underlying assault charges rendered the lack of a Salamon instruction harmless error.

The record reveals the following additional facts and procedural history. The case was tried in late February and early March of 2008, four months prior to the July 1, 2008 release of our decision in State v. Salamon, supra, 287 Conn. 509, 949 A.2d 1092. The trial court's instruction on kidnapping in the second degree did not direct the jury to consider whether the restraint imposed exceeded that necessary or incidental to the underlying assault crimes. ⁹ Further, the defense did not file a request to

299 Conn. 454

charge the jury, or take an exception to the instructions as given, to that effect.

Notwithstanding the defendant's failure to preserve this issue at trial, our interpretation of the kidnapping statutes in Salamon "may be applied to the present case because of the general rule that judgments that are not by their terms limited to prospective application are presumed to

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apply retroactively ... to cases that are pending.... Marone v. Waterbury, 244 Conn. 1, 10-11, 707 A.2d 725 (1998)." (Internal quotation marks omitted.) State v. Thompson, 118 Conn.App. 140, 154, 983 A.2d 20 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010); see also State v. Hampton, 293 Conn. 435, 462 n. 16, 978 A.2d 1089 (2009) (following Marone and concluding that Salamon is applicable to pending appeal in case tried nearly two years prior to its release).

"We begin with the well established standard of review governing the defendant's challenge to the trial court's jury instruction. Our review of the defendant's claim requires that we examine the [trial] court's entire

299 Conn. 455

charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction.... While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request.... If a requested charge is in substance given, the [trial] court's failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.... Additionally, we have noted that [a]n [impropriety] in instructions in a criminal case is reversible ... when it is shown that it is reasonably possible for [improprieties] of constitutional dimension or reasonably probable for nonconstitutional [improprieties] that the jury [was] misled." (Citations omitted; internal quotation marks omitted.) State v. Hampton, supra, 293 Conn. at 458, 978 A.2d 1089.

In State v. Salamon, supra, 287 Conn. 509, 949 A.2d 1092, we "reconsidered and reversed our long-standing jurisprudence holding that the crime of kidnapping encompasses restraints that are necessary or incidental to the commission of a separate underlying crime; see, e.g., State v. Luurtsema, 262 Conn. 179, 201-203, 811 A.2d 223 (2002); concluding that '[o]ur legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent 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.' " State v....