State v. Luis Neftali Flores.

• Decision Date: 24 May 2011
• Docket Number: No. 18592.,18592.
• Citation: 301 Conn. 77,17 A.3d 1025
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticutv.Luis Neftali FLORES.

301 Conn. 77

17 A.3d 1025

STATE of Connecticut

v.Luis Neftali FLORES.

No. 18592.

Supreme Court of Connecticut.

Argued Oct. 18, 2010.Decided May 24, 2011.

David J. Reich, for the appellant(defendant).Toni M. Smith–Rosario, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Chris A. Pelosi, senior assistant state's attorney, for the appellee(state).ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.^*PALMER, J.

A jury found the defendant, Luis Neftali Flores, guilty of kidnapping in the first degree in violation of General Statutes §§ 53a–92 (a)(2)(B)and53a–8 (a), robbery in the first degree in violation of General Statutes §§ 53a–134 (a)(4)and53a–8 (a), conspiracy to commit robbery in the first degree in violation of § 53a–134 (a)(4)andGeneral Statutes § 53a–48 (a), burglary in the second degree in violation of General Statutes(Rev. to 2003)§ 53a–102 (a)(2)and§ 53a–8 (a), conspiracy to commit burglary in the second degree in violation of General Statutes(Rev. to 2003)§ 53a–102 (a)(2)and§ 53a–48 (a), and two counts of larceny in the third degree in violation of General Statutes(Rev. to 2003)§ 53a–124 (a)(1)and§ 53a–8 (a).The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective sentence of sixteen years imprisonment.On appeal,¹the defendant raises several claims of instructional impropriety.Specifically, the defendant claims that the trial court improperly failed (1) to instruct the jury on the intent and conduct necessary to find him guilty of kidnapping in accordance with State v. Salamon,287 Conn. 509, 542, 550, 949 A.2d 1092(2008), (2) to instruct the jury that, to commit the crimes of conspiracy to commit robbery in the first degree and conspiracy to commit burglary in the second degree, the defendant must have had the specific intent to commit the substantive crimes of robbery and burglary, respectively, (3) to specify which of two possible victims was the alleged victim of the robbery, (4) to specify which of the two larceny charges related to which of two stolen motor vehicles, and (5) to require a unanimous verdict on the charge of burglary in the second degree.We agree with the defendant's first claim but reject his remaining claims.²Accordingly, we reverse the trial court's judgment only with respect to the defendant's kidnapping conviction.

The jury reasonably could have found the following facts.At approximately 6 a.m. on August 13, 2004, the defendant, together with Luis Vega and Jorge Marrero, entered the apartment of Madeline Garay on Zion Street in the city of Hartford.All three men were dressed in dark clothing and wearing ski masks.Garay knew Vega and Marrero from the neighborhood but did not socialize with them.The defendant and Garay, however, had known each other for many years, and Garay considered him to be a friend.After entering the apartment, the three men proceeded to the bedroom where Garay and her boyfriend, Carlos Ortiz, were sleeping.Garay's two children were asleep in another bedroom.The defendant awakened Garay by tapping her on the shoulder with a gun and whispering, “[where's] the money ...?”Garay, fearing for her life, responded in a loud voice that there was no money.The defendant then passed the gun to one of his accomplices and attempted to cover Garay's mouth with duct tape, but Garay immediately resisted.While the defendant was attempting to cover her mouth, Garay recognized the defendant's voice and a distinctive roll of fat on the back of his neck.She called out his name to see if it was him, and the defendant immediately responded and told her, “don't worry, we're not going to hurt you.”He then turned to Vega and Marrero and said: “Fuck it.She ... know[s] who we are.”Immediately thereafter, the defendant, Vega and Marrero removed their masks.Garay testified that, when the defendant told her that he was not going to hurt her, she believed him because he used to be the boyfriend of her best friend's sister, and she had known him for many years.

The defendant then proceeded to search the room for valuables.While he was doing so, one of his accomplices pointed the gun between Garay and Ortiz and appeared to pull the trigger, although no bullets discharged.³At some point, Ortiz got up from the bed, hoping to escape through a window.When he attempted to lift the window shade, however, Vega asked him what he was doing.Vega then pointed the gun at Ortiz, demanded that he open his mouth, placed the gun inside his mouth, told him to “calm down” and asked, “who's the man?”At the same time, Marrero came over and hit Ortiz on the head.Although Garay, who was on the bed the entire time, did not see Marrero hit Ortiz, she did see Vega put the gun inside Ortiz' mouth, at which point she told everyone to whisper so as not to wake her children.

The defendant, Vega and Marrero left the apartment as soon as they had finished searching the bedroom, taking with them Garay's two sets of car keys, the keys to her apartment, her jewelry, and her cell phone.Once outside, the defendant, Vega and Marrero drove away in Garay's two automobiles.The entire incident lasted between five and twenty minutes.⁴Later that morning, when Garay called her cell phone, Marrero answered it and told her where she could find one of the vehicles.Marrero also told her that he, the defendant and Vega had had no intention of hurting her that morning and that what they had done “had nothing to do with [her].”Additional facts and procedural history will be set forth as necessary.

I

We first address the defendant's claim that he is entitled to a new trial on the kidnapping charge because the trial court failed to instruct the jury in accordance with State v. Salamon,supra, 287 Conn. at 509, 949 A.2d 1092, in which we determined that a person cannot be convicted of the crime of kidnapping unless the jury finds beyond a reasonable doubt that the restraint or movement involved in the kidnapping was not merely incidental to the commission of another crime.⁵Seeid., at 542, 949 A.2d 1092.The state does not dispute that the omission of a Salamon instruction was improper but contends that the impropriety was harmless because there is no reasonable possibility that the jury, even if instructed in accordance with Salamon, would have found that the force and restraint used in the commission of the robbery was merely incidental to that crime.We conclude that the impropriety was not harmless.⁶

“It is well established that a defect in a jury charge [that] raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled....[T]he test for determining whether a constitutional error is harmless ... is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”(Citation omitted; internal quotation marks omitted.)State v. Cook,287 Conn. 237, 252, 947 A.2d 307, cert. denied, ––– U.S. ––––, 129 S.Ct. 464, 172 L.Ed.2d 328(2008).“An improper instruction on an element of an offense ... is of constitutional dimension.”(Internal quotation marks omitted.)State v. DeJesus,260 Conn. 466, 472–73, 797 A.2d 1101(2002).

“In Salamon ... 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 ... concluding that [o]ur legislature, in [enacting our kidnapping and unlawful restraint statutes], 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.”(Citation omitted; internal quotation marks omitted.)State v. DeJesus,288 Conn. 418, 429, 953 A.2d 45(2008).Thus, we concluded 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.”State v. Salamon,supra, 287 Conn. at 542, 949 A.2d 1092.Consequently, when, as in the present case, a defendant is charged with kidnapping in conjunction with another crime or crimes, “the jury must be instructed that, if it finds that the defendant's restraint of the victim was merely incidental to the defendant's commission of another crime against the victim ... then it must find the defendant not guilty of the crime of kidnapping.”Id., at 550, 949 A.2d 1092.

As we emphasized in Salamon, however, “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.”Id., at 547–48, 949 A.2d 1092.Moreover, “[f]or 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...