137 Conn. App. 29
Conn. App. Ct.2012Background
- Kirby was convicted by jury in 2010 of kidnapping in the second degree (53a-94) and assault in the third degree (53a-61).
- Buck, a 57-year-old teacher, attended a sorority meeting May 2, 2002, and later reported being abducted and assaulted following the meeting.
- The incident began in Buck’s garage, Buck was bound, struck, and driven around in her Buick by Kirby over a period of time.
- Police recovered Buck’s key ring and items linking Kirby to the crime (bag with pistol, stun guns, rope, gloves, Buck’s glasses) and Kirby’s home was searched; Buck’s key ring was found on Kirby.
- Kirby moved to dismiss kidnapping second degree as vague; the court instructed on unlawful restraint as a lesser included offense; the jury convicted of kidnapping second degree and assault; sentence was 21 years; on appeal the vagueness and jury charge issues were raised, and the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of kidnapping second degree vs unlawful restraint first degree | Kirby argues the distinction is vague as applied | Kirby contends the language leaves a reasonable person without fair warning | No, statute not void as applied; jury could reasonably find restraint longer than incidental to assault |
| Failure to temper the Salamon framework in jury charge | State argues defendant invited error by objecting to Salamon factors | Kirby argues the jury was misled by the charge | Harmless error; any error was cured by focusing on Salamon factors and the evidence was overwhelming |
Key Cases Cited
- State v. Salamon, 287 Conn. 509 (2008) (distinguishes kidnapping from unlawful restraint by intent; six Salamon factors for consideration)
- State v. Winot, 294 Conn. 753 (2010) (outlines vagueness standard and fair warning requirements)
- State v. Hampton, 293 Conn. 435 (2009) (harmful to constitutional impropriety if it reasonably misleads the jury)
- State v. Kitchens, 299 Conn. 447 (2011) (induced error doctrine; invited error limits review of jury instructions)
- Crawford v. Washington, 541 U.S. 36 (2004) (confrontation clause; admissibility of out-of-court statements)
- State v. DeJesus, 288 Conn. 418 (2008) (modifies prior Sanseverino rulings on vagueness in statutory interpretation)
- State v. Sanseverino, 291 Conn. 574 (2009) (discusses ambiguity between abduct and restrain; six-factor Salamon framework)