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WALTER HINDS v. COMMISSIONER

OF CORRECTION

(AC 35043)

(AC 35081)

Lavine, Alvord and Bishop, Js.

Argued March 11—officially released August 5, 2014

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

Erika L. Brookman, assistant state’s attorney, with

whom, on the brief, were Kevin D. Lawlor, state’s attorney, Mary M. Galvin, former state’s attorney, and

Michael E. O’Hare, former senior assistant state’s attorney, for the appellant-appellee (respondent).

Adele V. Patterson, senior assistant public defender,

for the appellee-appellant (petitioner).
Opinion

BISHOP, J. In this habeas corpus action, the petitioner, Walter Hinds, appeals from the judgment dismissing the second count of his petition. In support,

the petitioner claims that the habeas court incorrectly

determined that the cumulative effect of the trial court’s

alleged errors in his underlying criminal trial did not

deprive him of a fair trial. The respondent, the Commissioner of Correction (commissioner), in turn, appeals

from the judgment granting the petitioner a new trial

on the first count of the petition. The commissioner

claims that the habeas court incorrectly concluded that

the petitioner was not procedurally defaulted from

asserting his habeas claims and that the court, on the

merits, incorrectly determined that the petitioner was

denied a fair trial on the count in question. We affirm

the judgment of the habeas court.1

The following undisputed facts and procedural history are relevant to our consideration of the issues on

appeal. Following a trial to the jury, the petitioner was

found guilty of kidnapping in the first degree in violation

of General Statutes § 53a-92 (a) (2) (A) and sexual

assault in the first degree in violation of General Statutes § 53a-70 (a)(1). The petitioner was thereafter given

consecutive sentences of twenty years and twenty-five

years imprisonment for a total effective sentence of

forty-five years incarceration. The petitioner remains

in the custody of the commissioner.

Following the judgment of conviction and sentencing,

the petitioner appealed to this court, which, in turn,

affirmed the judgment. State v. Hinds, 86 Conn. App.

557, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915,

871 A.2d 372 (2005).2

In its opinion, this courtrecited the

following legally relevant factual history: ‘‘On August

28, 2000, sixteen year old high school student K was

working as a cashier at the Super Stop & Shop supermarket in Milford. After finishing work at approximately 9 p.m., K left the store and started on foot to a

friend’s apartment that was approximately five minutes

away. The route K followed required her to walk past

buildings adjacent to Super Stop & Shop, to cross Seeman’s Lane and to cut through the property of In-Line

Plastics Tool Company (In-Line Plastics). As she

crossed Seeman’s Lane, K noticed a pickup truck exit

the driveway of In-Line Plastics, reenter the parking

area and come to a stop. As she walked past the truck,

she turned around and observed that the driver had

exited the vehicle and was walking behind her. She

continued walking and, upon turning around again, she

saw that the driver was right behind her and wearing

only underwear and a sleeveless shirt. Although it was

nighttime, the area was lit by lights on the surrounding

buildings, enabling her to see the driver’s face.

‘‘At that point, K started to run. The [petitioner] ran
after K, grabbed her and put one of his hands around

her waist and his other hand over her mouth. He

instructed her not to scream or he would kill her. The

[petitioner] then threw K to the pavement and dragged

her by the legs into the bushes behind the In-Line Plastics building. The [petitioner] sat on her chest with his

feet on the outside of her arms and instructed K to

open her mouth. He inserted his penis into her mouth

and forced her to perform fellatio on him, ejaculating

into her mouth. The [petitioner] then patted her on the

cheek and told her she could leave. Too afraid to move,

K remained where she was and, as the [petitioner]

walked back toward his truck, pleaded with him not

to kill her, telling him that she would not tell anybody

what had happened. The [petitioner] turned around and

looked at K, enabling her to see his face again. He then

entered his truck and drove away.’’ (Footnote omitted.)

Id., 559–60.

In 2008, following his conviction and unsuccessful

direct appeal, the petitioner brought a habeas corpus

petition in four counts. Hinds v. Warden, Superior

Court, judicial district of Tolland, Docket No. CV-03-

0823519-S (July 22, 2009). In the first count, the petitioner set forth various allegations of trial counsel’s

purported ineffectiveness. Id. In count two, the petitioner alleged that the trial judge made prejudicial comments and erred in ordering that the petitioner remain

shackled during trial. Id. In count three, he alleged that

the cumulative errors of the trial court and his trial

counsel deprived him of a fair trial. Id. And, in count

four, he alleged that he was actually innocent of the

crimes for which he was convicted. Id. Following a

habeas trial, the court denied the petition. Id. On review,

this court dismissed the appeal. Hinds v. Commissioner of Correction, 126 Conn. App. 905, 12 A.3d 1099,

cert. denied, 301 Conn. 901, 17 A.3d 1043 (2011).

On October 20, 2009, the petitioner brought this petition. In a two count amended petition, filed April 5,

2012, the petitioner alleged that (1) his conviction of

kidnapping in the first degree should be reversed due to

constitutional errors in the jury charge; and (2) multiple

errors by the trial court, deemed harmless on direct

review, had the cumulative effect of violating his rights

to due process of law and a fair trial. In response to

the amended petition, the commissioner filed a return

alleging, inter alia, that the petitioner’s claim regarding

the trial court’s jury instruction was procedurally

defaulted on the basis of the petitioner’s failure to raise

the jury instruction issue at trial and on direct appeal.

The commissioner asserted, as well, that the claim

regarding the purported cumulative effect of multiple

errors by the trial court was procedurally defaulted and

that a claim premised on the aggregation of nonconstitutional errors is not cognizable at law.

In his reply to the return, the petitioner claimed, as
to the alleged instructional deficiency, that he should

not be procedurally defaulted. He further claimed that,

if the doctrine of procedural default applies, he can

demonstrate good cause for his failure to raise the

instructional claim at trial and that he was prejudiced

by the trial court’s failure to instruct the jury properly

regarding the kidnapping charge. In response to the

commissioner’s return regarding the second count, the

petitioner alleged that the claim regarding multiple

errors by the trial court did not arise until this court,

on direct review, found that multiple errors had taken

place. Additionally, the petitioner claimed that he

brought the second count to protect the record for

purposes of exhaustion and in the event of a future

change in the law regarding whether nonconstitutional

missteps by the trial court can be aggregated in

assessing whether they had the cumulative effect of

denying him a constitutionally fair trial.

Following a trial, the habeas court granted count one

of the petition, vacated the petitioner’s conviction and

sentence on the kidnapping charge and remanded the

case to the trial court for further proceedings. The

habeas court also denied the petitioner’s claim set forth

in the second count, which was premised on the cumulative effect of trial court errors. Thereafter, the court

granted the commissioner’s petition for certification to

appeal from the judgment as to the first count and

granted the petitioner certification to appeal from the

denial of relief on the second count of the petition. This

consolidated appeal followed.

I

JURY INSTRUCTIONS

We review the court’s determination as to each count

in turn. As to the first count, regarding the trial court’s

jury instruction, the petitioner alleges that the court

failed to charge the jury in accordance with the jury

instruction set forth by our Supreme Court in State

v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). In

Salamon, the 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 further stated: ‘‘[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. For 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 of the separate offense, whether

the restraint prevented the victim from summoning

assistance, whether the restraint reduced the defendant’s risk of detection and whether the restraint created a significant danger or increased the victim’s risk

of harm independent of that posed by the separate

offense.’’ (Emphasis in original; footnote omitted.)

Id., 547–48.

The parties are in agreement that the jury in the

underlying criminal case was not charged in accordance

with the dictates of Salamon. This is not, of course,

a criticism of the trial court because the decision in

Salamon was issued several years after the petitioner’s

criminal trial. Indeed, the trial court charged the jury

in accordance with the then existing law regarding the

crime of kidnapping in the first degree. Specifically, the

court instructed the jury: ‘‘Count number one; kidnapping in the first degree. A person is guilty of kidnapping

in the first degree when he abducts another person and

when he restrains the person abducted with intent to

inflict physical injury upon him or her, or violates or

abuses her sexually. The information informs, or

alleges, that [the petitioner] on or about the 28th day

of August, 2000, at approximately 9 p.m. in the area of

Bridgeport Avenue and Seeman’s Lane, the said [petitioner] did abduct another person, and he restrained

the person abducted with intent to abuse that person

sexually, in violation of the Connecticut General Statutes. And the person abducted and sexually abused

testified to in this courtroom by [K] as that person,

based upon the testimony if you so believe it.3

‘‘I shall now define for you the various terms used

in the statute. The first term is ‘abduct.’ Abduct means

to restrain a person with intent to prevent her liberation

either by secreting or hiding that person in a place

where she is not likely to be found or by using or

threatening to use physical force or intimidation.

That’s abduction.

‘‘The next term to be defined is ‘restrain.’ Restrain

means to restrict a person’s movement intentionally and

unlawfully in such a manner as to interfere substantially

with herliberty by moving herfrom one place to another

and by confining her in the place where the restrictions

first begin or in a place which she has been moved

without consent. Without consent includes, but is not

limited to, deception. As you can see, the abduction
and restraining must be intentional. There must be an

intent to interfere intentionally with the victim’s liberty.

Here, and I will use the word victim, I mean [K], and

with [K’s] liberty and an intent to prevent [K’s] liberation

either by secreting or hiding her in a place where she

is not likely to be found or by using or threatening to

use physical force or intimidation.

‘‘Intent; intent relates to the condition of mind of the

person who commits the act. His purpose in doing it;

as defined by our statute, a person acts intentionally

with respect to a result or to conduct when his conscious objective is to cause such result or to engage in

such conduct. What a person’s purpose, intention, or

knowledge has been is usually a matter to be determined by inference. No person is able to testify that he

looked into another’s mind and saw therein a certain

purpose or intention or a certain knowledge to do harm

to another. The only way in which a jury can ordinarily

determine what a person’s purpose, intention, or knowledge was at any given time, aside from that person’s

own statements or testimony, is by determining what

that person’s conduct was and what the circumstances

were surrounding that conduct and from that infer what

his purpose, intention, or knowledge was. To draw such

an inference is not only the privilege, but also the proper

function of a jury. To provide, of course, that the inference drawn complies with the standards for inferences

as explained in connection with my instructions on

circumstantial evidence. Thus, either [K] must have

been moved from one place to another, or [K] had been

confined in the place where the restriction first began,

or in the place where she has been moved without

her consent. There is no special requirement that the

restraint be for any particular length of time, or that

[K] be moved over any particular distance. Any time

period of restraint and distance of moving of [K] is

sufficient to constitute these elements of kidnapping.

You may, however, consider the length of time and

distance together with all circumstances in determining

the question of intention. The law which makes kidnapping criminal punishes interference with personal liberty restricting the victim’s freedom of movement. So,

you cannot find kidnapping until you first find it established that there was such restriction of movement and

that it has been done intentionally. That is, it has been

done without right or authority of law. That it has had

the effect of interfering substantially with the victim’s liberty.

‘‘Abduction may be established by satisfactory proof

that [K] had been unlawfully restrained and that with

intent to prevent her liberation, the [petitioner]

restrained her by using or threatening to use physical

force or intimidation. Abduction need not be proved

by establishing the use of force or intimidation if the

proof establishes that the [petitioner] threatened its use

in such a manner that [K] reasonably believed that force
would be applied to her if she sought to escape or to

thwart the abductor’s intention.’’

Notably, the trial court’s instruction did not advise

the jury that in order to find the petitioner guilty of

kidnapping, the jury would have to find that ‘‘the victim

[was] 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,’’ an instruction

made mandatory by Salamon’s holding. State v. Salamon, supra, 287 Conn. 547.

As noted, the trial court’s instruction was entirely in

accord with the then long-standing judicial gloss on

the meaning of the language of our kidnapping statute.

Indeed, in State v. Chetcuti, 173 Conn. 165, 377 A.2d

263 (1977), our Supreme Court affirmed the conviction

of kidnapping in the first degree where a defendant

claimed, on appeal, that the trial court should have

instructed the jury that he should not be found guilty

of kidnapping when the abduction and restraint of the

victim were incidental to his attempted sexual assault

of the victim. Id., 169. In rejecting the defendant’s claim,

the court observed that the charge requested by the

defendant was not an accurate statement of Connecticut law. Id., 171. The court continued: ‘‘In any event,

the legislature of this state has seen fit not to merge

the offense of kidnapping with sexual assault or with

any other felony. Nor has the legislature imposed any

time requirement for the restraint, nor any distance

requirement for the asportation to constitute the crime

of kidnapping. In view of the express terms of the statute and the fact that the defendant’s requests to charge

were not an accurate statement of the law of this state

. . . the court was not in error in denying the requests

to charge.’’ (Citation omitted; footnote omitted.) Id.,

170–71.

Chetcuti was not an outlier. To the contrary, its holding was expressly and routinely followed in ensuing

cases. See, e.g., State v. Lee, 177 Conn. 335, 343–44, 417

A.2d 354 (1979) (‘‘Kidnapping requires that there be

abduction. Abduction means restraint with the intent

to prevent liberation. Whether in a given case the

restraint is accompanied by the requisite intent, so as to

constitute kidnapping, oris merely incidentalto another

felony, is ordinarily a question for the jury. . . . Where

the requisite intent is present, the fact that the perpetrator’s underlying motive for the detention is the consummation of another crime, the prevention of his

detection, or the facilitation of his flight, does not preclude a conviction for kidnapping.’’ [Citations omitted.]); see also State v. Briggs, 179 Conn. 328, 338–39,

426 A.2d 298 (1979) (‘‘The defendant urges us to adopt

the merger doctrine of People v. Levy, 15 N.Y.2d 159,

256 N.Y.S.2d 793, cert. denied, 381 U.S. 938, 85 S. Ct.

1770, 14 L. Ed. 2d 701 [1965], and its progeny which
would preclude the prosecution for a kidnapping which

is merely incidental to the sexual assault. . . . This

court recently considered the defendant’s argument in

State v. Lee, [supra, 335], and State v. DeWitt, 177 Conn.

637, 419 A.2d 861 [1979] where we held that the defendant may be convicted of kidnapping in the second

degree in addition to a conviction for robbery even

though the convictions grew out of the same conduct as

long as the state was able to prove, beyond a reasonable

doubt, all of the essential elements of each crime. . . .

Where the intent required to constitute a kidnapping

in the second degree is present, the fact that the perpetrator’s underlying motive for the detention is the consummation of another crime . . . does not preclude a

conviction for kidnapping.’’ [Citations omitted; footnote

omitted; internal quotation marks omitted.]), cert.

denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862

(1980); State v. Vass, 191 Conn. 604, 614–15, 469 A.2d

767 (1983) (trial court did not err in refusing to instruct

jury that defendant could not be convicted on kidnapping charge if it found kidnapping was ‘‘ ‘integral or

incidental’ ’’ to sexual assault; where, as here, state

proves all elements of kidnapping, defendant may be

convicted of that crime in addition to another felony

even though two offenses arose out of same course of

conduct); State v. Burak, 12 Conn. App. 613, 615, 533

A.2d 237 (1987) (‘‘[o]ur Supreme Court has rejected the

doctrine which would merge the act of kidnapping into

the other crime charged where the kidnapping was

merely incidental to such crime’’).

Finally, and pointedly, in State v. Luurtsema, 262

Conn. 179, 200, 811 A.2d 223 (2002), released on December 24, 2002, our Supreme Court rejected the defendant’s claim that the movement of the victim from a

couch to the floor, the removal of her clothes, the forcing of her legs apart and the manual choking of the

victim did not constitute an abduction and were acts

merely incidental to the sexual assault. In its response

to the defendant’s arguments, the court opined: ‘‘In light

of our conclusion that the kidnapping statute does not

require movement of the victim, the defendant’s arguments are without merit. In rejecting the defendant’s

arguments, we emphasize that our legislature has not

seen fit to merge the offense of kidnapping with other

felonies, nor impose any time requirements for

restraint, nor distance requirements for asportation, to

the crime of kidnapping.’’ (Internal quotation marks

omitted.)Id., 202. The court continued: ‘‘Thus, any argument imputing a temporal requirement to the restraint

element or a distance requirement for abduction under

the kidnapping statute must fail. Furthermore, any argument that attempts to reject the propriety of a kidnapping charge on the basis of the fact that the underlying

conduct was integral orincidental to the crime of sexual

assault also must fail. . . . The defendant’s interpretation of the kidnapping statute is simply not the law of
this state. . . . Accordingly, [t]he proper inquiry is not

whether the kidnapping was incidental to [other

offenses], but whether the restraint was accomplished

with the requisite intent to constitute kidnapping, as

well as the state of mind required for [the other

offenses].’’ (Citations omitted; internal quotation marks

omitted.) Id., 202–203.

From this brief survey of decisional law from 1979

through 2002, the year of the petitioner’s conviction, it

is manifest that the Supreme Court’s new interpretation

of the kidnapping statute, later set forth in 2008 in

Salamon, was not only not the law of this state at the

time of the petitioner’s criminal trial, but, the holding

embraced by Salamon was expressly and uniformly

rejected in a succession of cases originating with Chetcuti in 1977, and still in effect when the petitioner’s

criminal trial took place.

In sum, Salamon represented a substantive change

in the court’s interpretation of the language of the kidnapping statute. As the court in Salamon stated: ‘‘Upon

examination of the common law of kidnapping, the

history and circumstances surrounding the promulgation of our current kidnapping statutes and the policy

objectives animating those statutes, we now conclude

the following: Our legislature, in replacing a single,

broadly worked 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. Stated otherwise, 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.

‘‘Our failure previously to recognize such an exclusion largely has eliminated the distinction between

restraints and abductions and effectively has merged

the statutory scheme such that it now closely resembles

the provision that the scheme was intended to replace.

Unfortunately, that interpretation has afforded prosecutors virtually unbridled discretion to charge the same

conduct either as kidnapping or as an unlawfulrestraint

despite the significant differences in the penalties that

attach to those offenses. Similarly, our prior construction of the kidnapping statutes has permitted prosecutors—indeed, it has encouraged them—to include a

kidnapping charge in any case involving a sexual assault

or robbery. In view of the trend favoring reform of the

law of kidnapping that existed at the time that our

statutes were enacted, and in light of the [Commission

to Revise the Criminal Statutes’] stated goal of creating
a modern, informed and enlightened penal code, it is

highly likely that our legislature intended to embrace

that reform, thereby reducing the potential for

unfairness that had been created under this state’s prior

kidnapping statutes.’’ (Footnote omitted.) State v. Salamon, supra, 287 Conn. 542–44.

And, as to the court’s more limited interpretation

of the kidnapping statute enunciated in Salamon, the

court, subsequently, adopted a guidepost for the retroactive application of its holding. In Luurtsema v. Commissioner of Correction, 299 Conn. 740, 764, 12 A.3d

817 (2011), the court stated: ‘‘Accordingly, we adopt a

general presumption in favor of full retroactivity for

judicial decisions that narrow the scope of liability of a

criminal statute.’’ The court continued: ‘‘We emphasize

that in the Salamon context in particular, any exceptions to the general presumption in favor of full retroactivity are likely to be few and far between.’’ Id.

Consistent with that reasoning, the court, in State v.

Fields, 302 Conn. 236, 239, 24 A.3d 1243 (2011), which

arose after Salamon, determined that the defendant

was entitled to a new trial on a kidnapping charge

because the trial court had failed to instruct the jury,

in accordance with Salamon, that if it found that the

restraint of the victim was merely incidental to the

defendant’s commission of the assault, it could not find

him guilty of kidnapping.

On the basis of our review of the record, we believe

the petitioner would be entitled to a new trial on the

kidnapping charge because of the court’s failure to

instruct the jury in accordance with the instructional

dictates of Salamon so long as he is not procedurally

defaulted from now making that claim in the habeas

context.

II

PROCEDURAL DEFAULT

We turn now to a consideration of the procedural

default doctrine. In essence, the procedural default doctrine holds that a claimant may not raise, in a collateral

proceeding, claims that he could have made at trial or

on direct appeal in the original proceeding and that if

the state, in response, alleges that a claimant should

be procedurally defaulted from now making the claim,

the claimant bears the burden of demonstrating good

cause for having failed to raise the claim directly, and

he must show that he suffered actual prejudice as a

result of this excusable failure. Our summary is elucidated by the following history.

In the 1977 case of Wainwright v. Sykes, 433 U.S.

72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), the United

States Supreme Court held that a petitioner’s failure to

timely object to certain statements at his criminal trial in

accordance with the applicable state court evidentiary

rule, absent a showing of cause forthe failure to comply
with the evidentiary rule and some showing of actual

prejudice, would bar federal habeas corpus review of

his conviction. Id., 87. In Connecticut, the procedural

default rule set forth in Wainwright was adopted and

applied to state habeas corpus petitions in Johnson v.

Commissioner of Correction, 218 Conn. 403, 409, 589

A.2d 1214 (1991). Since Johnson, a habeas petitioner

is barred from asserting a claim in a habeas petition

that could have been raised in the underlying criminal

proceeding unless he is able to demonstrate good cause

for having failed to raise such a claim and actual prejudice resulting from the failure to raise the claim in the

criminal proceedings. Id., 419.

Cases decided since Wainwright and Johnson have

further elucidated the parameters of‘‘cause’’ and ‘‘prejudice.’’ We turn first to a consideration of cause. In the

United States Supreme Court case of Reed v. Ross, 468

U.S. 1, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984), the court

opined: ‘‘Because of the broad range of potential reasons for an attorney’s failure to comply with a procedural rule, and the virtually limitless array of contexts

in which a procedural default can occur, this court has

not given the term cause precise content. . . . Nor do

we attempt to do so here. Underlying the concept of

cause, however, is at least the dual notion that, absent

exceptional circumstances, a defendant is bound by the

tactical decisions of competent counsel . . . and that

defense counsel may not flout state procedures and

then turn around and seek refuge in federal court from

the consequences of such conduct . . . . A defense

attorney, therefore, may not ignore a State’s procedural

rules in the expectation that his client’s constitutional

claims can be raised at a later date in federal court.

. . . Similarly, he may not use the prospect of federal

habeas corpus relief as a hedge against the strategic

risks he takes in his client’s defense in state court. . . .

In general, therefore, defense counsel may not make a

tactical decision to forgo a procedural opportunity—

for instance, an opportunity to object at trial or to raise

an issue on appeal—and then, when he discovers that

the tactic has been unsuccessful, pursue an alternative

strategy in federal court. . . . On the other hand, the

cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in

pursuit of his client’s interests. And the failure of counsel to raise a constitutional issue reasonably unknown

to him is one situation in which the requirement is

met. If counsel has no reasonable basis upon which to

formulate a constitutional question, setting aside for

the moment exactly what is meant by reasonable basis

. . . it is safe to assume that he is sufficiently unaware

of the question’s latent existence that we cannot attribute to him strategic motives of any sort.’’ (Citations

omitted; footnote omitted; internal quotation marks

omitted.) Id., 13–15. The court in Reed concluded:
‘‘Counsel’s failure to raise a claim for which there was

no reasonable basis in existing law does not seriously

implicate any of the concerns that might otherwise

require deference to a State’s procedural bar.’’ Id., 15.

From this language, we believe that counsel’s failure

to raise an issue for which there was no reasonable

basis may, indeed, satisfy the cause requirement. Our

Supreme Court, in Johnson v. Commissioner of Correction, supra, 218 Conn. 403, appears to have adopted a

similar approach. There, in rejecting the petitioner’s

appeal, the court commented: ‘‘From the viewpoint of

federal constitutional law at the time of the petitioners’

trials, it can hardly be contended that there was no

reasonable basis for challenging a jury array upon the

ground that a statute, such as [General Statutes] § 51-

220, might have a disproportionate impact on the availability of minority jurors. Such a claim had been made

prior to 1975 in State v. Townsend, [167 Conn. 539,

548–50, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S.

Ct. 84, 46 L. Ed. 2d 67 (1975)], before any of these

petitioners had been tried and was not categorically

rejected.’’ Johnson v. Commissioner of Correction,

supra, 422.

In the case at hand, in light of our Supreme Court’s

affirmation and reaffirmation of its holding in Chetcuti,

there was no reasonable basis for counsel to have asked

the court in the petitioner’s criminal trial for an instruction not then permitted and, indeed, expressly rejected

by then controlling decisional law. Moreover, given the

pre-Salamon status of the judicial gloss on the kidnapping statute, there was good reason, based on professionalism, for counsel not to have sought a Salamon

instruction at trial and to have challenged on appeal

the absence of such a charge. This court has stated, in

regard to the practice of raising multiple claims on

appeal: ‘‘A shotgun approach does a disservice both to

this court and to the party on whose behalf it is presented. . . . Naturally, an appellate court is habitually

receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number

of assigned errors increases. Multiplicity hints at lack

of confidence in any one [issue] . . . .’’ (Internal quotation marks omitted.) Boccanfuso v. Conner, 89 Conn.

App. 260, 263 n.2, 873 A.2d 208, cert. denied, 275 Conn.

905, 882 A.2d 668 (2005). See also, to the same effect,

Kilduff v. Adams, Inc., 219 Conn. 314, 320 n.5, 593 A.2d

478 (1991), and Latham & Associates, Inc. v. William

Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d

337 (1991). Because there was no reasonable basis for

trial counsel to have asked for a Salamon type charge

and, indeed, strong reason for counsel not to seek such

a charge in light of the then prevailing judicial gloss on

the kidnapping statute, we agree with the habeas court’s

conclusion that the petitioner satisfied the cause prong

of the cause and prejudice standard.
At the outset, we note that, on the issue of prejudice,

the habeas court stated that it was not clear beyond a

reasonable doubt that the verdict on the kidnapping

charge would have been the same even if the jury had

been properly instructed. To the extent that the habeas

court found that the commissioner has the burden of

proving the absence of prejudice, we disagree. The petitioner has the burden of proving both cause and prejudice. Because the issue of whether the petitioner met

his burden of proving prejudice in order to avoid the

bar of procedural default involves a question of law,

however, we conduct our own analysis, on review, of

whether this legal standard has been met without the

necessity of remanding the case for the habeas court’s

determination. See Mish v. Commissioner of Correction, 133 Conn. App. 845, 849–51, 37 A.3d 179, cert.

denied, 305 Conn. 918, 47 A.3d 390 (2012). In making

his argument that the commissioner should bear the

responsibility to prove prejudice, the petitioner incorrectly attempts to draw an analogy between the scope of

appellate review accorded a defendant on direct appeal

and during the habeas process. On direct appeal, a

defendant may obtain review of an unpreserved claim

if the record is adequate for review of the claim and if

the claim is of constitutional magnitude. See State v.

Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).

And, a defendant asserting a constitutional claim pursuant to Golding may succeed if a constitutional violation

clearly took place and clearly deprived him of a fair

trial, unless the state, in response, is able to demonstrate

that the constitutional error was harmless beyond a

reasonable doubt. Id. The analogy, however, is not apt,

as there are sufficient reasons founded on public policy

regarding the due administration of justice as well as

fairness that justify the requirement that a petitioner,

in a habeas case, who failed to raise an issue in his

underlying criminal prosecution, should be required to

bear the burden of demonstrating his entitlement to

subsequent collateral review.

The differences in the lens of review between a direct

appeal and a collateral attack on a conviction were

recognized by our Supreme Court in Johnson v. Commissioner of Correction, supra, 218 Conn. 403. There,

our Supreme Court opined: ‘‘We have concluded, however, that our dictum in [Payne v. Robinson, 207 Conn.

565, 568–69, 541 A.2d 504, cert. denied, 488 U.S. 898,

109 S. Ct. 242, 102 L. Ed. 2d 230 (1988)] concerning the

applicability of the [State v. Evans, 165 Conn. 61, 327

A.2d 576 (1973)]4

standard of appellate review to constitutional claims first raised in postconviction habeas

corpus proceedings was inappropriate. We failed to give

sufficient consideration to the special problems that

are likely to arise relating to the feasibility of a second

trial when a conviction is set aside by a habeas court

rather than by an appellate court. These problems are

related mainly to the more extended delay of the second
trial that frequently results from a reversal of a conviction by a habeas court. There is no statute of limitation

or other time limit that would bar a habeas petition.

. . . Ordinarily the petition may not be filed until appellate remedies have been exhausted, lest the petitioner

be charged with a deliberate bypass of an appeal. An

additional record must be created in the habeas court,

which may require extensive testimony. If the petitioner

is successful in overturning his conviction, another

appeal is almost inevitable.

‘‘A direct appeal following a conviction, on the other

hand, is subject to strict time limits at each stage of

the proceeding. Except for extraordinary cases, an

appeal in this state is ordinarily determined within

approximately one year from the date it was filed. The

greater time lapse that results when a second trial is

ordered by a habeas court has a serious impact on

the availability of witnesses and other evidence for the

second trial. Memories fade with the passage of time,

exhibits are lost, and other evidence is less likely to be

available. Appellate counsel would have less incentive

to raise on appeal all arguable constitutional claims of

the defendant if another opportunity to raise such

claims were available in the habeas court. We are convinced that these consequences would be sufficiently

harmful to the administration of justice in this state

as to require that we withdraw our dictum in Payne

concerning the applicability of the Evans standard for

appellate review to habeas corpus proceedings.’’ (Citation omitted; footnote altered.) Johnson v. Commissioner of Correction, supra, 218 Conn. 415–16.

While the United States Supreme Court in Wainwright applied the doctrine of procedural default as a

bar to collateral attacks on criminal convictions, the

court expressly declined to elucidate the parameters

of cause and prejudice. Wainwright v. Sykes, supra,

433 U.S. 87. The court stated, however, that the prejudice must be actual and not merely speculative. Id.

Following Wainwright, the Supreme Court, in United

States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L.

Ed. 2d 816 (1982), opined that, in order to satisfy the

prejudice component of the cause and prejudice doctrine, one must ‘‘shoulder the burden of showing, not

merely that the errors at his trial created a possibility

of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with

error of constitutional dimensions.’’ (Emphasis in original.) Id., 170.

In the case at hand, we are satisfied that the petitioner

demonstrated actual prejudice and that the trial court’s

failure to instruct in accordance with the dictates of

Salamon significantly impacted the trial. From our

review of the record, it is clear that evidence of the

petitioner’s restraint and abduction of the victim indicated that it was closely aligned in time and place to
his sexual assault of the victim. Put another way, the

record reveals that the state did not present evidence

that the petitioner’s restraint and abduction of the victim was sufficiently disconnected from his sexual

assault of the victim so as to render the absence of a

Salamon instruction harmless. To the contrary, given

the evidence regarding the proximity in time and location of the restraint and abduction to the sexual assault,

there is a reasonable probability that the absence of the

Salamon instruction prejudiced the petitioner because

the presence of such a charge would have required the

jury, in order to find him guilty on the kidnapping count,

to determine that the restraint and abduction were not

merely incidental to the sexual assault, a conclusion it

was not asked to make on the basis of the law then

applicable.5 The failure to give a Salamon instruction,

underthe facts presented at trial, substantially deprived

the petitioner of his constitutional right to have the jury

properly informed of the meaning of the language of

the kidnapping charge. Forthese reasons, the petitioner

is entitled to a new trial on the kidnapping count.

III

CUMULATIVE EFFECT

The petitioner claimed, as well, at the habeas trial

that he is entitled to a new trial on the second count of

his petition on the basis of his claim that the cumulative

effect of the trial court’s errors deprived him of a fair

trial. In response to this claim, the habeas court found

that the petitioner had not shown his entitlement to a

new trial because such a claim is not legally cognizable.

We agree.

In response to the petitioner’s claim, the commissioner filed a return setting forth two special defenses:

(1) that this claim regarding the cumulative effect of

the trial court errors is procedurally defaulted; and (2)

such a claim is notrecognizable at law. The court denied

relief on the second basis. Confronted with a similar

claim, this court has stated: ‘‘Our Supreme Court has

rejected a claim that a group of instructional claims of

error, none of which was found to constitute reversible

error, should be aggregated to form a separate basis

for a claim of a constitutional violation of a right to a

fair trial . . . and also rejected a claim that the cumulative effect of a variety of alleged improprieties should

be the basis of a claim of constitutional violation . . . .

We also reject as untenable the creation of a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.’’

(Citations omitted; internal quotation marks omitted.)

State v. Reddick, 33 Conn. App. 311, 338–39, 635 A.2d

848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38

(1994). To the same effect, our Supreme Court, in State

v. Samuels, 273 Conn. 541, 871 A.2d 1005 (2005), held

that the erroneous admission of the constancy of accusation testimony of four witnesses could not be aggre-
gated to create a legally viable constitutional claim that

the cumulative effect of these nonconstitutional missteps deprived the defendant of a fair trial. Id., 562. The

petitioner’s claim premised on the cumulative effect of

the trial court’s missteps is therefore without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Both parties individually appealed from the habeas court’s judgment.

The petitioner challenges the court’s dismissal of the second count of his

petition; the commissioner appealed from that portion of the judgment

granting the petition on the basis of the allegations in the first count. While

both appeals were pending, they were consolidated for reasons of judicial

economy. We now decide the consolidated appeal.

2 Because it may have some relevance to the claims made by the petitioner

in this habeas appeal, we note that, on direct appeal, this court found that

the trial court inappropriately gave a charge on consciousness of guilt, and

that the trial court failed to respond adequately to a note from the jury

during its deliberations, and abused its discretion in the admission of a

certain photograph of the petitioner. State v. Hinds, supra, 86 Conn. App.

568–69, 574. This court, however, found each of these errors harmless in

light of the strength of the state’s case. Id., 569, 574.

3 During its jury charge, the court referred to the victim by name because

she had been identified at trial. In this appeal, however, we follow the course

this court took on direct appeal in referring to the victim only as ‘‘K’’ for the

reasons set forth by this court on direct appeal and in similar circumstances.

Accordingly, although the trial court referred to the victim by name, we

substitute K as part of our recitation of the court’s instructions. State v.

Hinds, supra, 86 Conn. App. 559 n.1.

4 State v. Evans, supra, 165 Conn. 61, has since been superseded by State

v. Golding, supra, 213 Conn. 239–40, and stands, generally, for the same

proposition regarding the availability of appellate review of unpreserved

claims. See also State v. Elson, 311 Conn. 726, A.3d (2014), for the

Supreme Court’s most recent articulation of the Golding requirement.

5

It is noteworthy that at trial, the only seriously contested issue concerned

the adequacy and accuracy of the identification of the petitioner as the

perpetrator. There was no serious dispute as to whether both crimes had

been committed by a perpetrator as their statutory parameters were then

understood.