Wilcox v. Comm'r of Corr.

• Decision Date: 02 February 2016
• Docket Number: No. 37276.,37276.
• Citation: 129 A.3d 796,162 Conn.App. 730
• Parties: Howard WILCOX v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

162 Conn.App. 730

129 A.3d 796

Howard WILCOX

v.COMMISSIONER OF CORRECTION.

No. 37276.

Appellate Court of Connecticut.

Argued Sept. 16, 2015.

Decided Feb. 2, 2016.

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Peter A. McShane, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellant (respondent).

Jennifer B. Smith, assigned counsel, for the appellee (petitioner).

SHELDON, KELLER and HARPER, Js.

KELLER, J.

The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court granting the amended petition for a writ of habeas corpus filed by the petitioner, Howard Wilcox. On appeal, the respondent claims that the habeas court improperly determined that the petitioner (1) established good cause for failing to raise an instructional error claim at trial or on direct appeal, and (2) established that he suffered actual prejudice from the trial court's jury instructions. We reverse the judgment of the habeas court and remand the case to that court with direction to dismiss the petition.

The following facts and procedural history are relevant to this appeal. In 1997, the petitioner was convicted following a jury trial of one count of kidnapping in the first degree in violation of General Statutes § 53a–92 (a)(2)(A), one count of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(1), one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–70 (a)(1), one count of assault in the third degree in violation of General Statutes § 53a–61 (a)(1), and one count of falsely reporting a motor vehicle theft in violation of General Statutes § 14–198. The trial court sentenced the petitioner to a total effective sentence of forty years incarceration, execution suspended after thirty-four years, followed by ten years of probation. The defendant appealed his conviction to this court and our Supreme Court transferred the appeal to itself pursuant to General Statutes § 51–199(c) and Practice Book § 65–1.

In 2000, our Supreme Court affirmed the judgment of conviction, at which time it set forth the following facts underlying the crimes: "During the evening of September 16, 1996, the victim¹ walked the short distance from her home in East Haddam to J.R.'s Cafe [J.R.'s] in Moodus. The [petitioner], with whom the victim was not acquainted, already was at the bar when she arrived. The victim remained at J.R.'s for approximately one and one-half to two hours during which time she had several drinks, danced, and conversed with acquaintances. The victim also asked the [petitioner] to dance, tugging his arm to encourage him to join her on the dance floor. After dancing with the victim, the [petitioner] bought the victim a drink and they conversed for a few minutes thereafter.

"At approximately 12:30 a.m. on September 17, 1996, the victim left the bar and started walking home. The [petitioner] exited the bar immediately after the victim. As the victim walked down one of the driveways leading away from J.R.'s, the [petitioner] drove up next to her and offered to drive her home. The victim accepted his offer and voluntarily entered the [petitioner's] vehicle. The victim gave the [petitioner] directions to her home, but he failed to turn onto her road as instructed. The victim attempted to exit the moving car by opening the door, but the [petitioner] grabbed her by the arm and pulled her back into the vehicle.

"The [petitioner] then drove the victim to a remote area of Cockaponset State Forest, where he pulled her out of the car onto the wet ground and pulled her shorts and underpants down around her ankles. The [petitioner] squeezed his hands around the victim's neck, choking her, and then performed oral sex on her. The [petitioner] also touched the victim's breasts, vagina and buttocks with his hands, mouth and penis.

During this period the [petitioner] told the victim that she ‘deserved it.’ While the [petitioner] again attempted to perform oral sex on her, the victim managed to kick him away and flee through the woods, pulling up her shorts and underpants as she ran. As the victim ran away, she lost one of her shoes, a sock and her driver's license, which she had kept in her sock. The victim hid for a period of time beneath a tree.

"Eventually, the victim walked to a house adjacent to the woods where she knocked on the door and asked for help. The victim, who had mud on her clothes and body, and marks around her neck, appeared to have been involved in a struggle. Georgia Marica, one of the occupants of the house, testified that the victim appeared to be terrified. Inside the house, the victim telephoned her father and told him that she had just been raped. Marica notified the police, who arrived shortly thereafter.

"In response to the victim's report of a sexual assault, the police conducted a search of the area for any suspects or vehicles. During the early morning of September 17, 1996, the police located the [petitioner's] vehicle approximately 100 feet off a road leading into Cockaponset State Forest. The vehicle's windows were rolled down and the interior was wet due to the rain. A canine search of the vicinity around the vehicle uncovered the victim's shoe, sock and driver's license and the [petitioner's] set of keys.

"At approximately 6 a.m. on September 17, 1996, the [petitioner's] girlfriend, Toni Bartlotta, reported the [petitioner's] vehicle as stolen to the state police. Officers went to the [petitioner's] apartment in Deep River in response to the stolen vehicle report and, upon arriving at the apartment, observed Bartlotta cleaning broken glass panes from the front door. The [petitioner] provided the officers with oral and written statements alleging, inter alia, that he had parked his vehicle outside the Old Lyme Tavern in East Lyme the previous evening and later went home with a friend. The [petitioner] further claimed that, when he returned to the Old Lyme Tavern the next morning to retrieve his vehicle, it was missing.

"Later the same day, a detective for the state police went to the [petitioner's] home and requested that the [petitioner] go down to the state police barracks in order to identify his vehicle and further discuss the previous night's events. At the barracks, the [petitioner] told police that in his previous statement he had lied about his vehicle being stolen because he had been out with another woman the previous evening and did not want his girlfriend to find out.

"The [petitioner] then provided the police with a second version of the previous evening's events, claiming that he had met the victim at J.R.'s, engaged in conversation with her and offered her a ride home when he saw her walking outside the bar. The [petitioner] further stated that they drove to Cockaponset State Forest, parked the vehicle and began kissing and caressing. The [petitioner] then removed the victim's shirt and shorts and performed consensual oral sex on her in the front seat of the vehicle. The [petitioner] claimed that they then decided to have sexual intercourse and the victim laid down on the wet ground next to the car. The [petitioner] further told police that when he was unable to maintain an erection, the victim became angry and got dressed. The [petitioner] claimed that he had then realized that the victim had taken his car keys and, as the victim started to walk away from the car, he reached out, attempting to recover his keys from her. The [petitioner] alleged that as he reached out, he tripped over a rock and accidentally grabbed the victim's neck. The victim then ran away, and the [petitioner], unable to find his keys, walked home, breaking the glass in his front door in order to gain entry.

"The following day, the [petitioner] contacted the state police and again revised portions of his earlier statement. The [petitioner] provided a third version of the events, claiming that when he left J.R.'s he found the victim passed out in the front seat of his car. The [petitioner] woke up the victim and she agreed to go on a ride with him. The [petitioner] did not alter his previous statements concerning the rest of the evening's events. The [petitioner] was arrested later that day." (Footnotes altered.) State v. Wilcox, 254 Conn. 441, 444–48, 758 A.2d 824 (2000).

Following the petitioner's criminal trial and his direct appeal, our Supreme Court issued two watershed decisions pertaining to kidnapping crimes, State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011). Pursuant to the holdings of these decisions, a defendant who has been convicted of kidnapping may collaterally attack his kidnapping conviction on the ground that the trial court's jury instructions failed to require that the jury find that the defendant's confinement or movement of the victim was not merely incidental to the defendant's commission of some other crime or crimes. See State v. Salamon, supra, at 546–50, 949 A.2d 1092 ; see also Luurtsema v. Commissioner of Correction, supra, at 773, 12 A.3d 817 ("We turn ... to the ... question, whether this court's interpretation of [the kidnapping in the first degree statute] in Salamon should apply retroactively in the present case. Because the rationales underlying the general presumption in favor of full retroactivity apply here, we conclude that it should.").

On July 11, 2011, the petitioner filed a petition for a writ of habeas corpus, which he amended on February 4, 2014. In his amended petition, the petitioner challenged his kidnapping conviction on the ground that the instructions given to the jury during his criminal trial were not in accordance with State v. Salamon, supra, 287 Conn. at 550, 949 A.2d 1092.² On February 24, 2014, the respondent filed a return to the amended petition, alleging the special defense of procedural default. The petitioner filed a reply on February...