White v. Comm'r of Corr.

• Decision Date: 31 January 2017
• Docket Number: AC 38453
• Citation: 154 A.3d 1054,170 Conn.App. 415
• Court: Connecticut Court of Appeals
• Parties: Phillip WHITE III v. COMMISSIONER OF CORRECTION

170 Conn.App. 415

154 A.3d 1054

Phillip WHITE III

v.COMMISSIONER OF CORRECTION

AC 38453

Appellate Court of Connecticut.

Argued October 18, 2016

Officially released January 31, 2017

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Susann E. Gill, former supervisory assistant state's attorney, Craig P. Nowak, senior assistant state's attorney, and Yamini Menon, special deputy assistant state's attorney, for the appellant (respondent).

Wade Luckett, assigned counsel, with whom, on the brief, was Walter C. Bansley IV, assigned counsel, for the appellee (petitioner).

Alvord, Prescott and Mihalakos, Js.

PRESCOTT, J.

The respondent, the Commissioner of Correction, appeals from the summary judgment rendered by the habeas court in favor of the petitioner, Phillip White III, granting his amended petition for a writ of habeas corpus.¹ On appeal, the respondent claims that the habeas court improperly granted the petition after concluding that the jury in the petitioner's underlying criminal case should have been instructed on the intent and conduct necessary to find the petitioner guilty of kidnapping in accordance with State v. Salamon , 287 Conn. 509, 550, 949 A.2d 1092 (2008). Having thoroughly reviewed the record, we conclude that the habeas court properly granted the amended petition for a writ of habeas corpus, and, accordingly, we affirm the judgment.

The following facts, as set forth by this court in the petitioner's direct criminal appeal, and procedural history are relevant to this appeal. "On June 24, 2003, the [teenage] complainant was alone inside her parents' home in the town of Fairfield. At approximately 4 p.m., the [petitioner] approached the front door and rang the doorbell. The complainant answered the door, and the [petitioner] informed her that he was selling magazine subscriptions to earn money for college. The [petitioner] asked the complainant to look at a brochure to determine if she was interested in purchasing any of the magazines. The complainant informed the [petitioner] that she could not purchase anything because her parents were not home. She recommended that he return sometime around 6 p.m. when her parents would be home from work.

"The [petitioner] asked the complainant if he could use the bathroom. The complainant hesitated. The [petitioner] explained that he really had to use the bathroom. Without invitation, the [petitioner] brushed by the complainant, who was standing in the doorway, and walked straight down the hallway of the foyer toward the bathroom located off the kitchen. The [petitioner] remained in the bathroom for approximately thirty seconds. When he emerged from the bathroom, the [petitioner] walked slowly toward the complainant. While the [petitioner] was in the bathroom, the complainant did not hear the bathroom door shut or the water running from the bathroom plumbing. The complainant remained near the front doorway while the [petitioner] was in the bathroom.

"The [petitioner], again, asked the complainant to look at the magazine brochure. The complainant briefly looked at the brochure, handed it back to the [petitioner] and told him that she had not heard of any of the magazines on the list. The [petitioner] took the brochure, walked toward the [front] door and closed [it]. Placing his hand in the rear pocket of his trousers, the [petitioner] told the complainant that he had a gun and ordered her to sit on a couch in the den adjacent to the foyer. The complainant entered the den and sat on the couch closest to the foyer. The [petitioner] asked her what time her parents would arrive home. Though the complainant had told him earlier that her parents would be home at approximately 6 p.m., this time she told the [petitioner] that they would arrive at approximately 5:30 p.m., hoping that he would believe that her parents would arrive sooner. The [petitioner] then asked if anyone else was home, and she told him that no one else was home at the time.

"After approximately three minutes, the [petitioner] told the complainant to stand up because he wanted to go upstairs. Walking sideways facing the complainant, the [petitioner] slowly approached the stairwell just off the den. After taking several slow steps, the [petitioner] placed his hand on the complainant's elbow to hurry her along. As the [petitioner] touched the complainant's arm, she began to scream and cry. The [petitioner] told the complainant to be quiet, and she attempted to leave the house via the front door. The [petitioner] blocked the doorway, as the complainant continued to scream. The [petitioner] suddenly stopped and said that he was just playing. The [petitioner] then called the complainant a ‘scaredy-ass,’ opened the front door and ran out of the house. Approximately ten minutes elapsed from the time the [petitioner] first arrived at the home to the time that he departed.

"The complainant closed the door and locked it. She immediately called a friend, who lived up the street, to warn her that the [petitioner] was running in her direction. She was unable to contact her friend. The complainant then unsuccessfully called both of her parents. Finally, she reached her boyfriend by telephone and told him what had happened. She then called the police and gave a brief description of the [petitioner].

"Within approximately ten minutes, Officer Joseph Kalson of the Fairfield police department arrived at the home. The complainant again gave a description of the [petitioner], and Kalson broadcast over the police radio that the original description was correct. Officer Christopher Ioli of the Fairfield police department also responded to the call. Ioli observed the [petitioner] jogging on a street. By the time that Ioli had turned his vehicle around and turned down that street, the [petitioner] was sitting on the front lawn of a house. According to Ioli, the [petitioner] was sweating and appeared slightly nervous. Ioli conducted a patdown search for weapons but found none. The complainant was transported to that location, where she identified the [petitioner], and the [petitioner] was taken into custody." State v. White , 97 Conn.App. 763, 766–68, 906 A.2d 728, cert. denied, 280 Conn. 939, 912 A.2d 476 (2006).

Following a jury trial, the petitioner was convicted of kidnapping in the second degree with a firearm in violation of General Statutes § 53a–94a (a)² and burglary in the second degree with a firearm in violation of General Statutes § 53a–102a (a).³

He was sentenced by the trial court to fifteen years incarceration on the kidnapping charge and ten years incarceration on the burglary charge, both sentences to run concurrently, for a total effective sentence of fifteen years. On direct appeal, this court affirmed the petitioner's kidnapping conviction, but reversed the petitioner's burglary conviction on the ground that the trial court improperly declined to instruct the jury on the lesser included offense of criminal trespass in the second degree. State v. White , supra, 97 Conn. App. at 765, 906 A.2d 728. After this court remanded the case for a new trial on the burglary charge, the state, on January 25, 2007, nolled that charge.

The petitioner subsequently filed his first habeas action, in which he alleged ineffective assistance of counsel. After a trial, the habeas court denied in part and granted in part the petition for a writ of habeas corpus, restoring the petitioner's right to sentence review. White v. Warden , Superior Court, judicial district of Tolland, Docket No. CV–04–4000100–S, 2007 WL 3173665 (Oct. 15, 2007). On appeal, this court affirmed that judgment of the habeas court. White v. Commissioner of Correction , 113 Conn.App. 901, 964 A.2d 1261, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). After the petitioner applied for sentence review, his sentence was affirmed.

State v. White , 97 Conn.App. 763, 906 A.2d 728 (2009).

On January 5, 2015, in a second habeas action, the petitioner filed an amended petition, alleging a violation of his due process rights under our federal and state constitutions in light of our Supreme Court's decisions in State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092, and Luurtsema v. Commissioner of Correction , 299 Conn. 740, 12 A.3d 817 (2011). The petitioner claimed that the trial court did not properly instruct the jury as to the charge of kidnapping because, pursuant to Salamon , a defendant cannot be convicted of kidnapping in conjunction with another crime if the confinement or movement necessary to support the kidnapping charge is merely incidental to the commission of the other crime.⁴ State v. Salamon , supra, at 546–47, 949 A.2d 1092.

On February 5, 2015, the petitioner filed a motion for summary judgment on his amended petition pursuant to Practice Book § 23–37,⁵ which was accompanied by a memorandum of law in support. On March 9, 2014, the respondent filed an objection to the motion. Oral argument on the motion was heard on June 1, 2015, and both sides stipulated to the habeas court treating the June 1 argument as a full habeas trial on the papers.⁶

Thereafter, the habeas court granted the petitioner's motion for summary judgment and, in turn, his amended petition for a writ of habeas corpus. In its memorandum of decision dated September 10, 2015, the court summarily concluded that the petitioner was entitled to an instruction on the kidnapping charge in a manner that comports with Salamon , and, in a more lengthy analysis, concluded that the lack of the proper instruction was not harmless error. The habeas court subsequently granted the respondent's petition for certification to appeal, and this appeal followed.

The respondent claims that the habeas court improperly concluded that the petitioner was entitled to an incidental restraint instruction on the kidnapping charge in accordance with Salamon . The respondent then argues that, even if an incidental restraint instruction should have been given, the...