Banks v. Commissioner of Correction, SC20222 First

Justice D’Auria (joined by Justice McDonald) concurs in the judgment that the absence of a Salamon jury instruction was harmless in Banks’ habeas petition but disagrees with the majority’s adoption of the Brecht harmless‑error standard.
Salamon reorganized Connecticut kidnapping law, holding that restraint incidental to another crime is not kidnapping and that a jury must be instructed accordingly.
This court in Luurtsema and Hinds applied Salamon retroactively on collateral review and cited the direct‑appeal harmless‑error framework (Neder) in analyzing Salamon claims, prompting lower courts and habeas tribunals to use Neder.
The federal Brecht standard (more favorable to the state on collateral review) governs federal habeas review of state convictions; the question is whether a state habeas Salamon claim should be measured by Brecht or by Neder (the direct‑appeal standard).
D’Auria argues the court should not have decided which standard applies because Banks loses under either test; if decided, Neder is the correct standard on state collateral review because Luurtsema/Hinds suggest it, state‑law retroactivity principles apply, and federalism/finality rationales for Brecht do not control.
Policy and fairness concerns: adopting Brecht now would reduce protections for habeas petitioners already relying on Neder, produce arbitrary distinctions, and undercut the remedial purpose of Salamon’s retroactivity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper harmless‑error standard for Salamon errors in state habeas collateral review	Neder (harmless beyond a reasonable doubt / direct‑appeal standard) applies	Brecht (substantial and injurious effect standard) should govern collateral review	Majority adopts Brecht; D’Auria concurs in result but argues Neder should apply and that deciding the issue was unnecessary
Whether prior decisions (Luurtsema, Hinds) compel Neder	Luurtsema/Hinds already signaled use of direct‑appeal harmless‑error standard for Salamon claims	Respondent points to federal practice and Brecht policy rationales	D’Auria: Luurtsema and Hinds support Neder; lower courts uniformly applied Neder; Brecht is a federal rule and not controlling on state retroactivity
Whether resolving the standard now is prudent	Banks: outcome same under either test; court should avoid altering settled lower‑court practice	State: fairness/comity/finality support adopting Brecht now	D’Auria: because Banks cannot prevail under either standard and only a small universe of cases remain, the court should have declined to decide the standard

State v. Salamon, 287 Conn. 509 (Conn. 2008) (reinterpreted kidnapping statute; restraint incidental to another crime is not kidnapping and required jury instruction)
Luurtsema v. Commissioner of Correction, 299 Conn. 740 (Conn. 2011) (plurality) (held Salamon retroactive to final convictions on state common‑law grounds and cited direct‑appeal harmless‑error standard)
Hinds v. Commissioner of Correction, 321 Conn. 56 (Conn. 2016) (applied Luurtsema; acknowledged harmless‑error analysis and discussed, but did not definitively adopt, Brecht)
Brecht v. Abrahamson, 507 U.S. 619 (U.S. 1993) (federal habeas harmless‑error test: error requires new trial only if it had a substantial and injurious effect or influence on the verdict)
Neder v. United States, 527 U.S. 1 (U.S. 1999) (direct‑appeal harmless‑error standard: conviction stands only if the error was harmless beyond a reasonable doubt)
State v. Sanseverino, 287 Conn. 608 (Conn. 2008) (applied Salamon on direct review; discussed retroactivity to pending appeals)
State v. Hampton, 293 Conn. 435 (Conn. 2009) (applied direct‑appeal harmless‑error analysis in Salamon‑related context)
Epps v. Commissioner of Correction, 327 Conn. 482 (Conn. 2018) (certification posture raised question left unresolved by Hinds regarding misuse of harmless‑error standards on collateral review)