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*********************************************** 
BANKS v. COMMISSIONER OF CORRECTION—DISSENT

KELLER, J., dissenting. I respectfully dissent. I conclude that under the facts and circumstances of this

case, as well as the analysis established in our Supreme

Court precedent, the absence of the instruction mandated by State v. Salamon, 287 Conn. 509, 949 A.2d

1092 (2008), was harmless beyond a reasonable doubt.

I do not believe there is a reasonable probability that

a properly instructed jury would reach a different result

based on its required analysis of the factors enunciated

in Salamon. Therefore, I would affirm the judgment of

the habeas court denying the amended petition for a

writ of habeas corpus filed by the petitioner, Mark

Banks.

The majority correctly states both the standard of

review and the burden of the respondent, the Commissioner of Correction. Thus, I begin with a discussion

of the Salamon decision, because I believe the majority

strays too far from the rule enunciated therein, which

distinguishes a kidnapping from a restraint that is incidental to and necessary for the commission of some

other crime against a victim.1

The facts in Salamon involved the defendant being

charged with kidnapping in the second degree as a

result of the following conduct.2

‘‘The victim disembarked the train in Stamford and began walking toward

a stairwell in the direction of the main concourse. At

that time, the victim noticed the defendant, who was

watching her from a nearby platform. As the victim

approached the stairwell, she observed that the defendant was following her. The defendant continued to

follow the victim as she ascended the stairs. Before

the victim reached the top of the stairs, the defendant

caught up to her and grabbed her on the back of the

neck, causing her to fall onto the steps. The victim, who

had injured her elbow as a result of the fall, attempted

to get up, but the defendant, who had positioned himself

on the steps beside her, was holding her down by her

hair. The victim screamed at the defendant to let her

go. The defendant then punched the victim once in the

mouth and attempted to thrust his fingers down her

throat as she was screaming. Eventually, the victim was

able to free herself from the defendant’s grasp, and

the defendant fled. . . . According to the victim, the

altercation with the defendant lasted at least five

minutes.’’ Id., 515.3

In Salamon, our Supreme 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., 542. The court noted that the issue in Salamon

‘‘directly implicates only a relatively narrow category
of criminal cases, that is, kidnapping cases in which

the restraint involved is incidental to the commission

of another crime.’’ Id., 523.

‘‘First, in order to establish a kidnapping, the state

is not required to establish any minimum period of

confinement or degree of movement. When that confinement or movement is merely incidental to the commission of another crime, however, the confinement or

movement must have exceeded that which was necessary to commit the other crime. [T]he guiding principle

is whether the [confinement or movement] was so much

the part of another substantive crime that the substantive crime could not have been committed without such

acts . . . . In other words, the test . . . to determine

whether [the] confinements or movements involved

[were] such that kidnapping may also be charged and

prosecuted when an offense separate from kidnapping

has occurred asks whether the confinement, movement,

or detention was merely incidental to the accompanying

felony or whether it was significant enough, in and of

itself, to warrant independent prosecution. . . .

‘‘Conversely, 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. . . .

‘‘Second, we do not retreat from the general principle

that an accused may be charged with and convicted of

more than one crime arising out of the same act or

acts, as long as all of the elements of each crime are

proven. Indeed, because the confinement or movement

of a victim that occurs simultaneously with or incidental

to the commission of another crime ordinarily will constitute a substantial interference with that victim’s liberty, such restraints still may be prosecuted under the

unlawful restraint statutes. Undoubtedly, many crimes

involving restraints already are prosecuted under those

provisions.’’ (Citations omitted; emphasis added; footnotes omitted; internal quotation marks omitted.) Id.,

546–48. Our Supreme Court noted that the rule of Salamon ‘‘is relatively narrow and directly affects only those

cases in which the state cannot establish that the

restraint involved had independent significance as the

predicate conduct for a kidnapping’’ and would not

‘‘force a major shift in prosecutorial decision making.’’
Id., 548.

The Supreme Court also stated that ‘‘[f]or purposes

of making [the] determination [of whether a criminal

defendant’s movement or confinement of a victim was

necessary or incidental to the commission of another

crime] the jury should be instructed to consider the

various relevant factors, including [1] the nature and

duration of the victim’s movement or confinement by

the defendant, [2] whether that movement or confinement occurred during the commission of the separate

offense, [3] whether the restraint was inherent in the

nature of the separate offense, [4] whether the restraint

prevented the victim from summoning assistance, [5]

whether the restraint reduced the defendant’s risk of

detection and [6] whether the restraint created a significant danger or increased the victim’s risk of harm independent of that posed by the separate offense.’’ Id. I

believe an analysis of the Salamon factors, half of which

the majority does not analyze in any detail, requires

affirmance of the kidnapping convictions in this case.

Prior appeals addressing the lack of a Salamon

instruction at a criminal trial in which the defendant

or habeas petitioner was convicted of both kidnapping

and an underlying offense reveal that the determination

of whether the absence of such an instruction was harmless beyond a reasonable doubt is highly dependent on

the facts and circumstances of each case. ‘‘Analyses of

Salamon claims have focused on a variety of factors

in determining whether a kidnapping conviction can

stand, but the timing, location, and manner in which

the [petitioner] commits criminal acts against a victim

are particularly crucial factors.’’ Wilcox v. Commissioner of Correction, 162 Conn. App. 730, 743, 129 A.3d

796 (2016).

After Salamon, this court and our Supreme Court

have concluded that restraining a victim for a brief

duration in connection with an underlying offense can

still constitute kidnapping. See State v. Ward, 306 Conn.

718, 736–37, 51 A.3d 970 (2012); State v. Lewis, 148

Conn. App. 511, 517, 84 A.3d 1238, cert. denied, 311

Conn. 940, 89 A.3d 349, cert. denied, U.S. , 135

S. Ct. 132, 190 L. Ed. 2d 101 (2014); State v. Ayala, 133

Conn. App. 514, 522–23, 36 A.3d 274, cert. denied, 304

Conn. 913, 40 A.3d 318 (2012).4

This court has observed that the movement and confinement of a victim after the defendant commits the

underlying offense is more likely to have independent

criminal significance. See White v. Commissioner of

Correction, 170 Conn. App. 415, 436, 154 A.3d 1054

(2017); see also State v. Golder, 127 Conn. App. 181,

190–91, 14 A.3d 399, cert. denied, 301 Conn. 912, 19 A.3d

180 (2011). In State v. Golder, supra, 183, the defendant

entered the victim’s residence with the intent to steal

her jewelry. Upon unexpectedly encountering the victim inside the residence as she walked toward her bed-
room, the defendant grabbed her, moved her to the

kitchen while holding her in a bear hug, released her,

and took a bag of jewelry from the closet. Id., 184. At

that point, the defendant told the victim that he was

going to have to put her in the basement, but changed

his mind after the victim told him she was claustrophobic and asthmatic, and moved her instead to the bedroom. Id. The defendant then ‘‘asked if she had any

rope. [The victim] responded that she did not have any,

so the defendant took some neckties . . . and ‘hogtied’ her to the bed. The defendant then asked [the

victim] where she kept her car and where the keys for

it were located. [The victim] told him the keys were in

her pocketbook, and the defendant went into the

kitchen. [The victim] attempted to release herself from

the bed, and the defendant returned to ask [the victim]

if the car had an alarm. When the defendant left for the

second time, [the victim] freed herself and called 911.

[The victim] was tied to the bed for a total of twenty

to twenty-five minutes.’’ Id., 184–85. On the basis of

these facts, this court concluded that there was no

reasonable possibility that the jury was misled by the

lack of a Salamon instruction. Id., 191.

Faced with a similar issue, this court reached the

same result in Nogueira v. Commissioner of Correction, 168 Conn. App. 803, 845, 149 A.3d 983, cert. denied,

323 Conn. 949, 169 A.3d 792 (2016), and concluded

that a reasonable fact finder could not find that the

petitioner’s restraint and confinement of the victim was

incidental to and necessary for the completion of his

crime of sexual assault. The petitioner in Nogueira was

convicted of kidnapping and sexual assault following

a trial to the court, but claimed in a subsequent habeas

proceeding that the kidnapping conviction did not comply with the principles set forth in Salamon. Id., 809.

This court disagreed because the petitioner dragged the

victim approximately 113 feet to a window well, where

he sexually assaulted her for two hours. Id., 838. By

moving the victim to the window well, the petitioner

decreased his risk of detection and increased the risk

of harm to the victim because the window well was

lined with rocks. Id., 841–42. Moreover, the window well

served as a secondary form of restraint and hindered

the victim’s ability to escape. Id., 842.

In light of the principles of Salamon and guided by

the cases which have applied those principles, I conclude that the respondent in the present case has met

the burden of establishing that the lack of a Salamon

instruction in the petitioner’s underlying criminal trial

was harmless beyond a reasonable doubt. On the basis

of my review of the record and my cognizance of the

dictates of Salamon, I conclude that when presented

with the facts of the underlying crime, a reasonable jury

could not find the petitioner’s restraint of the victims

in each of the cases against him to have been incidental

to and necessary for the commission of the robberies.
I agree with the habeas court’s conclusion that the

evidence in the record demonstrates that the petitioner’s restraint and abduction of the victims were sufficiently distinct from his crimes of robbery to constitute

independently significant kidnappings.

The following facts were before the jury when it

reached its verdict in the first case. With respect to the

earlier of the two robberies, on direct examination,

Michael Kozlowski testified that he was working at the

Newington Bedding Barn on August 30, 1995, at about

9 p.m. As Kozlowski prepared to close the store, the

petitioner entered. Kozlowski testified that he

approached the petitioner with the belief that the petitioner was a customer. When Kozlowski showed the

petitioner a king-size bed, the petitioner said, ‘‘let me

count my money,’’ and reached into his bag and produced a gun. Kozlowski testified that the petitioner said,

‘‘[d]on’t try anything, I’ll bust you one, just walk over

to the register.’’ The petitioner then told him to get

behind the counter and pointed his gun at Kozlowski’s

chest. Kozlowski testified that, after the petitioner took

the money from the cash register and a wallet from his

coworker, Howard Silk, ‘‘[the petitioner] moved us . . .

down to the hallway into the bathroom and . . . he

then put us into the bathroom and put a mop handle

or something behind the door.’’ Kozlowski testified that

the petitioner, as they walked down the hallway to the

bathroom, said, ‘‘[d]on’t try anything; I’ll blow your head

off . . . .’’ Kozlowski indicated that after the petitioner

closed the bathroom door and locked Kozlowski and

Silk in there, ‘‘we ducked down thinking he was going

to shoot through the door because it was only a piece

of plywood, basically, and [a] couple of minutes after,

we heard a bell, which is on the front door, [which

rings whenever someone enters or leaves the store]

. . . we then . . . kicked the door, basically, and

went downstairs.’’

Silk testified that he also was working at the Newington Bedding Barn during the evening of August 30, 1995.

Silk stated that, as he was in the process of closing the

store, he noticed the petitioner following Kozlowski

toward the counter. As the petitioner and Kozlowski

approached, Silk realized that the petitioner was pointing a gun at Kozlowski’s back. Silk testified that the

petitioner told Kozlowski and Silk that he wanted the

money, so Kozlowski took the money from the register

as the petitioner pointed the gun at Silk’s chest. After

Silk told the petitioner that there was no safe inside

the store, the petitioner led Silk and Kozlowski toward

the back of the store at gunpoint. Silk testified that he

handed the petitioner the $17 in his wallet and then,

the petitioner ‘‘proceeded to put us into the bathroom

area’’ and attempted to jam the door with a mop handle.

Silk testified that he believed that the petitioner put

them in the bathroom so that he could escape and that

after less than two minutes, he heard the bell ring that
‘‘goes off when [the door] opens and . . . [he] hoped

that [the bell rung] when [the petitioner] left.’’ After

waiting for thirty seconds after hearing the doorbell

ring, Silk and Kozlowski were easily able to open the

bathroom door. Silk testified that they went downstairs

into the basement of the building to the warehouse

there to call 911 and wait for the police to arrive in the

event that the petitioner was still on the first floor.

In the second case, Kelly Wright testified that she

was working at the Southington Bedding Barn on September 13, 1995. She recalled that at 8:55 p.m., five

minutes before the store was set to close, while Wright’s

roommate, Idelle Feltman, was waiting in the store to

take her home, the petitioner and an unidentified female

entered the store. Wright testified that the petitioner

and the female split up and appeared to be shopping

for king-size beds. Wright testified that she was sitting

behind the store counter when the petitioner arrived

and that she rose in order to greet him because it was

store policy to do so whenever a potential customer

arrived. Before Wright could make it around the

counter, however, the petitioner told her to get on the

floor. Wright testified that she noticed that the petitioner had a gun in his hand and was holding it out

parallel to the floor. The petitioner told Feltman to get

the money from the register. Feltman gave the petitioner the money in the register in a bank bag. Wright

testified that the petitioner then inquired if there was

a basement in the store, and Feltman responded by

telling the petitioner that there was no basement, but

there was a bathroom. Wright testified that the petitioner led her and Feltman to the bathroom at gunpoint

and told them to enter the bathroom, lock the door,

and ‘‘not to be a hero, let the cops do their jobs.’’ Wright

stated that she heard a buzzer go off, which indicated

that the door to the store had been opened. She and

Feltman waited for a ‘‘little bit,’’ unlocked the door, and

left the bathroom to call 911. Wright estimated that

about five to six minutes elapsed between the time the

petitioner entered the store to the time she and Wright

were able to contact the police.

Feltman testified that she went to the Southington

Bedding Barn to pick up Wright from work because the

two planned to go out to dinner. During her testimony,

she recalled that two people, the petitioner and a

woman, entered the store right before closing and that

the pair split up after they entered the store. Feltman

testified that the petitioner approached the counter and

removed a gun from his bag. He waved the gun and

told her to give him the money in the register. Feltman

emptied the register, which contained less than $100,

and handed the money to the petitioner. Feltman testified that after he obtained the money, the petitioner

inquired whether there was a basement in the store,

and that Feltman and Wright replied that there was no

basement, but there was a bathroom. Feltman stated
that the petitioner led her and Wright in a single-file

line to the bathroom and then instructed them to enter,

while aiming the gun at them and causing them to be

scared.5 Feltman and Wright entered the bathroom and

waited a minute or two after they heard the door buzzer

that indicated someone had entered or left the store.

At this point, the two left the bathroom and found a

mattress that had been placed in the narrow hallway

leading to the bathroom as a ‘‘barricade . . . .’’ Feltman

testified that she pushed it off to the side and ‘‘walked

right through.’’

The petitioner argues that the habeas court improperly concluded that the lack of a Salamon instruction

was harmless beyond a reasonable doubt. On the basis

of my review of the record in the present cases, I conclude that the lack of an instruction was harmless

because I am persuaded beyond a reasonable doubt

that the omission of an instruction on incidental and

necessary restraint did not contribute to the verdict. In

doing so, I, unlike the majority, set forth an analysis of

all of the Salamon factors.

With respect to the first factor, the petitioner asserts

that the nature and duration of the victims’ movement

or confinement supports his claim because the confinement lasted only a few minutes and the victims were

moved a short distance. Although the respondent must

prove that the petitioner restrained and abducted the

victims, proof ‘‘of kidnapping does not require proof

that the victim was confined for any minimum period

of time or moved any minimum distance.’’ State v. Salamon, supra, 287 Conn. 531–32. In order to ‘‘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., 542. With respect to the nature of the confinement,

the petitioner led the victims to the bathrooms at gunpoint under the threat of deadly force. The explicit

threat of death constitutes sufficient control of the victims’ liberation to support a kidnapping conviction. See

State v. Ayala, supra, 133 Conn. App. 522–23 (implicit

threat against victim’s life constitutes sufficient confinement to prevent victim’s liberation). Though the shortterm duration of the victims’ confinement does support

the petitioner’s claim that he is entitled to a new trial

on the kidnapping charge, the petitioner’s conduct,

viewed in its entirety, evinces that he intended to

frighten the victims, prevent their escapes and restrain

them beyond what was necessary to commit the robberies. The short period of restraint does not outweigh the

fact that the petitioner confined the victims at gunpoint

after his prior activities in the stores had met all the

elements of robbery in the first degree in violation of

General Statutes § 53a-134 (a) (4). A jury could not

reasonably conclude that the nature and manner of

confinement of the victims by forcing them into the
bathrooms with the threat of deadly force after the

petitioner obtained the money was merely incidental

to and necessary for the commission of the robberies.

Rather than finding that the movement and confinement

of the victims at gunpoint was incidental to and necessary to complete the robberies, reasonable jurors would

undoubtedly find that a kidnapping also occurred

because the defendant needlessly moved and confined

the victims at gunpoint in order to further advance, or

facilitate, his commission of the robberies.

Like the majority, I would conclude that the second

factor weighs in the petitioner’s favor. The evidence

demonstrates that the petitioner’s movement and confinement of the victims occurred during the commission

of the robbery.6

With respect to the third factor, I observe that the

petitioner asserts that because the restraint of the victims occurred contemporaneously with the robberies,

a reasonable juror could consider that the restraint was

merely incidental to the robberies. Restraint, however,

is not an element of the crime of robbery; the inquiry

is whether the restraint was incidental to and necessary

for the commission of the robberies in these particular

cases. See White v. Commissioner of Correction, supra,

170 Conn. App. 436. Restraint that occurs after the

underlying crime already has been committed supports

the conclusion that the lack of a Salamon instruction

was harmless error. See State v. Golder, supra, 127

Conn. App. 190–91. Once the petitioner obtained the

money from the registers at gunpoint, his conduct satisfied all the elements of robbery in the first degree.

Although the use of force after taking money can be

viewed as part of the continuum of conduct that can

constitute the crime of robbery; State v. Ghere, 201

Conn. 289, 297, 513 A.2d 1226 (1986); the relevant

inquiry under Salamon is not whether the crime of

robbery was still ongoing, but whether the use of force

‘‘exceed[ed] that which was necessary to accomplish

or complete’’ the robbery. (Emphasis added.) State v.

Salamon, supra, 287 Conn. 547. The petitioner ‘‘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.’’ (Emphasis added.) Id. The

analysis does not need to pinpoint a precise moment

when the crime of robbery ended because the petitioner’s threatened use of force in leading the victims to

the bathroom can be considered as occurring during

the commission of the simultaneous crimes of robbery

and kidnapping, and the prolonged use of force was

not necessary to complete the robberies. Once the petitioner obtained the money from the register, he could

have left the stores. Instead of leaving immediately,
however, the petitioner led the victims to isolated parts

of the stores at gunpoint and threatened to use deadly

force. Cf. State v. Flores, 301 Conn. 77, 80–83, 17 A.3d

1025 (2011) (defendant entitled to new trial with Salamon instruction when use of force occurred solely in

connection with commission of robbery and defendant

immediately departed from scene after completing

robbery).

Key facts that persuaded our Supreme Court in Flores

that the lack of a Salamon instruction in that case could

not be considered harmless beyond a reasonable doubt

are absent in the present case. Specifically, in Flores,

the restraint of the victim occurred at the location the

defendant initially found the victim and occurred prior

to the taking of any property, while the defendant and

his accomplices searched that room for valuables. Additionally, the victim recognized the defendant in Flores,

which alleviated her fear, and the victim was released

immediately after the defendant and his accomplices

had taken possession of the valuables. By contrast, the

petitioner in the present case moved the victims, and

confined them in a more secluded location and ensured

that they did not emerge until after he escaped. Additionally, nothing in the present case alleviated the victims’ fear. There is evidence that the petitioner’s

conduct after acquiring the money actually increased

the victims’ fear. Although, as our Supreme Court recognized in Flores, whether the use of force is necessary

to complete the underlying crime is generally a question

of fact for the jury, the factual dissimilarities in the

present case when compared to Flores highlight why

a reasonable jury would be precluded from finding that

the petitioner’s conduct did not constitute kidnapping.

As previously stated, I do not view the petitioner’s

restraint of the victims as incidental to and necessary

to commit the robberies. Although the petitioner’s

threatened use of force in moving or confining a victim

can be considered as occurring during the commission

of the simultaneous crimes of robbery and kidnapping,

his prolonged use of that threat of force cannot reasonably be considered as incidental to and necessary for

the completion of the robberies. After the petitioner

took possession of the money, his decision to move

and confine the victims in a more secluded location

can be viewed as an inflection point that shifts how

a reasonable jury would view the significance of the

petitioner’s continuing use of the threat of force. As

the evidence in the record reveals, the victims believed

that the defendant’s initial use of force upon entering

the stores was to effectuate his goal of taking possession of the money. Once the petitioner possessed the

money, the continued threat of deadly force to move

the victims to a secluded part of the stores prolonged

their fear and facilitated his escape. Viewing the petitioner’s conduct in this light is not an unduly legalistic

syllogism because the decisions the petitioner made
increased the harmful and terrorizing impact on the

victims.

Turning my attention to the fourth and fifth factors,

I observe that the petitioner also argues that the victims

were not prevented from summoning assistance and

that the restraint did not make it easier for him to

escape. The facts, however, reflect that this assertion

is incorrect because the restraint of the victims, which

was not incidental to and necessary for completion of

the robberies, facilitated the petitioner’s escape. After

the petitioner obtained the money, the victims were

led into the bathrooms at gunpoint. The victims were

neither able to call 911 as the petitioner led them to

the bathrooms, nor were they able to summon assistance from inside the bathrooms. Moreover, out of fear

that the petitioner was still in the stores, the victims

remained in the bathrooms even after they heard the

doorbells. It was not until the petitioner had escaped

that the victims were able to call for help. The petitioner

also made it more difficult for the victims to seek assistance by propping a broom or mop handle against the

door after forcing the victims into bathroom at the

Newington Bedding Barn and partially blocking the hallway leading from the bathroom with a mattress as he

departed the Southington Bedding Barn. Even if the

victims were able to get past these obstacles without

great difficulty, the obstacles increased the amount of

time that elapsed before the victims were able to summon assistance. For the same reasons that I conclude

that the petitioner’s actions facilitated his escape and

prevented the victims from seeking assistance, I conclude that the petitioner, by placing the victims in the

bathroom, decreased his risk of detection. By hindering

the victims’ ability to call for help, the petitioner was

able to get farther away from the crime scenes before

emergency responders were aware of the crimes.

Last, with respect to the sixth factor, the petitioner

argues that the victims were not placed at risk of harm

independent of that posed by the robberies. The facts

in these cases reflect that this assertion is incorrect

because the victims were subjected to an additional

risk of both physical and emotional harm. In order to

lead the victims to the bathrooms, the petitioner kept

his gun targeted on them for a greater length of time

than was necessary to effectuate the crime of robbery.

This was inherently dangerous simply because the gun

could have discharged due to a malfunction or an accident at any time. Furthermore, it increased the risk of

a catastrophe because the victims, fearing for their lives,

may have attempted to flee, resist or overcome the

petitioner. The petitioner’s actions after he obtained the

money caused the victims to suffer additional emotional

distress. As the evidence in the record reveals, the petitioner’s decision to lead the victims down narrow corridors, to secluded parts of the stores, hidden from public

view, caused the victims additional fear.7 The impact
of this additional fear-provoking behavior would not

have occurred if the petitioner had just left the stores

after he took possession of the money.8

Under the facts and circumstances of this case, I

conclude that a reasonable jury, provided with the

proper, current interpretation of our kidnapping law,

could not find that the restraint of the victims was

incidental to and necessary to complete the commission

of the robberies. The evidence presented by the state,

considered as a whole, would prevent a reasonable jury

from finding that no kidnappings occurred. Thus, the

lack of a Salamon instruction in the petitioner’s underlying criminal trial was harmless error, and I would

affirm the judgment of the habeas court.

1 At one point, the majority concludes that the jury was free to determine

‘‘that the confinement and movement of the [four individuals] after the

taking of the money was part of the course of events of the robberies,’’

which is not the standard we are required to apply under State v. Salamon,

287 Conn. 509, 949 A.2d 1092 (2008). I agree completely with Judge Lavine’s

eloquent dissent in Bell v. Commissioner of Correction, 184 Conn. App.

150, 174, A.3d (2018) (Lavine, J., dissenting), a case of two robberies

that involved stealing money from restaurant safes and the petitioner’s

ordering the victims into restaurant walk-in refrigerators, closing them

inside, and telling them not to leave. Judge Lavine’s criticism of the majority’s

analysis in that case aptly describes the problem I have with the majority’s

analysis here. The majority expands the definition of the word ‘‘necessary’’

to apply to conduct that was unnecessary to complete the robberies, but

simply made their completion easier.

2 The defendant in Salamon also was charged with risk of injury to a

child and unlawful restraint in the first degree. Charges of attempted sexual

assault in the third degree and three counts of assault in the third degree

were withdrawn before trial, but the court concluded that the defendant

was entitled to an instruction that he cannot be convicted of kidnapping if

the restraint imposed on the victim was merely incidental to an assault,

regardless of whether the state tried him for assault because the facts

reasonably supported an assault conviction. State v. Salamon, supra, 287

Conn. 550 n.35.

3

I note that in light of these facts, our Supreme Court concluded that a

reasonable jury could find either that the defendant’s restraint of the victim

was merely incidental to or necessary for his underlying assault, or that his

restraint of the victim constituted a kidnapping. It determined that the facts

of the case were a close call and ordered a new trial for the defendant on

the kidnapping charge. State v. Salamon, supra, 287 Conn. 549. If the actions

of the defendant in Salamon could reasonably have constituted a kidnapping,

I do not see how the defendant’s actions in the present cases could reasonably constitute anything but kidnappings.

4

I note that State v. Ward, supra, 306 Conn. 718, State v. Ayala, supra,

133 Conn. App. 514, and State v. Lewis, supra, 148 Conn. App. 511, are

direct criminal appeals analyzing whether there was sufficient evidence to

support a kidnapping conviction. Reliance on these cases can be problematic

in habeas appeals because the petitioner only has to demonstrate that the

respondent cannot prove that the absence of a Salamon instruction at his

underlying criminal trial was harmless beyond a reasonable doubt, a different

standard than proving lack of sufficient evidence to convict on direct appeal.

See Hinds v. Commissioner of Correction, 321 Conn. 56, 91, 136 A.3d 596

(2016). My reliance on these cases is limited to support the proposition that

a reasonable jury, having been instructed in accordance with Salamon,

properly may find that confinement of a short duration constitutes kidnapping.

In State v. Ward, supra, 306 Conn. 741, our Supreme Court determined

that the trial court improperly granted the defendant’s motion for a judgment

of acquittal on his kidnapping conviction because the jury, provided with

a proper Salamon instruction, reasonably could have decided that moving

the victim down a hallway and restraining her for ten to fifteen minutes

was not incidental to the crime of sexual assault. In State v. Lewis, supra,

148 Conn. App. 517, the evidence was sufficient to support the defendant’s
kidnapping conviction under the rule of Salamon when, after committing

the crime of assault, the defendant dragged the victim across the ground

and tried to force her into a car. The victim resisted until plainclothes police

officers arrived, forcing the defendant to let go of the victim. Id., 514. Also,

in State v. Ayala, supra, 133 Conn. App. 522–23, this court found that after

the defendant committed the crime of burglary, his actions against the victim

amounted to restraint with sufficient independent criminal significance to

constitute the crime of kidnapping. The defendant in Ayala forced his way

into the victim’s apartment and once inside ‘‘stuck . . . a black handgun

into [the victim’s] stomach, threatened to kill her and inquired about the

whereabouts of his girlfriend. The victim informed the defendant that his

girlfriend was not at her residence, at which time the defendant pushed her

and demanded that she sit on the couch. The defendant then searched the

residence for his girlfriend, and when he was unable to find her, he left

. . . .’’ (Footnote omitted.) Id., 516–17.

5 Feltman, when describing her emotions as the petitioner led her down

the hallway, testified: ‘‘I was scared. There was something about [his] eyes.

I wanted to make sure that he knew that he was in control. I didn’t want

to . . . show him that I was fearful or anything like that. I didn’t want him

to think that I was going to freak out . . . .’’

6

In White v. Commissioner of Correction, supra, 170 Conn. App. 415,

this court stated: ‘‘We next address the second relevant Salamon factor, that

is, whether the movement or confinement occurred during the commission

of the separate offense. The respondent argues that the absence of a Salamon

instruction did not contribute to the kidnapping verdict here because the

burglary had been completed prior to the petitioner’s conduct comprising

the kidnapping. More specifically, he argues that the offense of second

degree burglary was complete once there [was] an unlawful entering or

remaining in a building with the intent to commit a crime [therein] . . .

and the petitioner gestured to his back pocket and told the [complainant]

he had a gun. Therefore, he argues, any additional action the petitioner took

after he represented by his words or conduct that he possessed a firearm—

e.g., ordering the [victim] to sit on the couch, instructing her to move

upstairs, touching her elbow in an attempt to get her to move faster—was

not necessary to accomplish the already concluded offense of burglary. We

do not find this unduly legalistic line of reasoning persuasive.

‘‘The respondent’s syllogism fails to recognize that the jury could have

viewed the petitioner’s actions here as a continuous, uninterrupted course

of conduct all relating to the burglary offense. . . . [A]lthough liability for

a burglary premised on an unlawful entry attaches upon a defendant crossing

the threshold . . . authority exists that a burglary, once begun, continues

until all parties participating in the burglary have left the property.’’ (Citations

omitted; emphasis omitted; internal quotation marks omitted.) Id., 433–34.

I am troubled by the suggestion in White that there cannot be a finding of

harmless error so long as the underlying crime is still ongoing and continuing,

which contradicts the holding in Salamon that 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.’’ (Emphasis added.) State v.

Salamon, supra, 287 Conn. 547. A proper analysis does not entail pinpointing

a precise moment when the crime of robbery ended so as to confine our

consideration of whether a kidnapping occurred during conduct that

occurred after the robberies.

7

I disagree with the majority’s assessment that the movement and confinement of the victims was ‘‘de minimis . . . .’’ The victims’ testimony reflects

that the movement and confinement at issue, occurring at gunpoint, gave

rise to very real feelings of fear. The victims testified that they waited until

they believed the defendant had fled before emerging from the bathrooms

for fear they would be shot if they again confronted the defendant.

8 Potential victims of robberies often are advised, if robbed, to hand over

their valuables without resistance so that their risk of harm will not be

increased. Imagine, then, the thoughts that rush through the mind of a

cooperative victim when the perpetrator does not flee after obtaining the

valuables sought, but instead, continues to threaten his victim with a weapon

and forces him into a more secluded location. What victim at that point would

not anxiously contemplate the possibility that he may possibly be murdered?