Grant v. Commissioner of Correction ( 2023 )

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DAVID GRANT v. COMMISSIONER
OF CORRECTION
(SC 20679)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Alexander and Keller, Js.
Argued September 7—officially released December 27, 2022*
Procedural History
Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland,
and tried to the court, Bhatt, J.; judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant (peti-
tioner).
Nathan J. Buchok, deputy assistant state’s attorney,
with whom, on the brief, were Paul J. Narducci, state’s
attorney, Stephen M. Carney, supervisory senior assis-
tant state’s attorney, and Mitchell S. Brody, former
senior assistant state’s attorney, for the appellee (respon-
dent).
Opinion
ALEXANDER, J. The petitioner, David Grant, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus,1 in which he sought
to vacate his conviction of manslaughter in the first
degree with a firearm in violation of General Statutes
§§ 53a-55 (a) (1) and 53a-55a (a), assault in the first
degree in violation of General Statutes § 53a-59 (a) (5),
and criminal possession of a firearm in violation of
General Statutes § 53a-217. The petitioner claims that
the habeas court incorrectly determined that (1) McCoy
v. Louisiana, U.S. , 138 S. Ct. 1500, 200 L. Ed.
2d 821 (2018), which recognized a criminal defendant’s
right under the sixth amendment to the United States
constitution to autonomy in deciding the fundamental
objectives of his defense,2 was not implicated under
the facts of this case, and (2) his trial counsel, Sebastian
DeSantis, did not render ineffective assistance of coun-
sel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), when he conceded,
during closing argument, that the petitioner was guilty
of manslaughter. After a thorough review of the record
and applicable law, we affirm the judgment of the
habeas court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In the early morn-
ing of June 24, 2012, the petitioner shot his gun into a
crowd of patrons gathered on a deck at a bar in Nor-
wich, killing Donna Richardson and wounding Crystal
Roderick. In a video-recorded confession to the police,
the petitioner stated that he had gone to the bar with
Steven Velez, a local drug dealer, and that, shortly
before closing time, Velez handed him a gun. Velez
pointed out a bar patron named Isaiah Lee, who was
standing on the outdoor deck adjacent to the bar.
Although the petitioner did not know Lee personally,
he believed that he was a dangerous person who ‘‘run[s]
around . . . shooting at people . . . .’’ As a result, the
petitioner became ‘‘nervous’’ and ‘‘scared’’ that Lee
might shoot him. According to the petitioner, ‘‘[t]he
deck was packed because the bar was full . . . . I saw
[Lee] standing off to my left while I was walking to the
back stairs. . . . [Lee] was moving around like he was
getting ready to do something. He had his hands in his
pocket. . . . I was scared, and I thought he might shoot
at me. I didn’t see . . . a gun [in his hand], but I didn’t
know what he was going to do. . . . As I walked past
[Lee] with the gun in my right hand, I shot. I wasn’t
trying to kill him. I was shooting [just] to scare him
because I was scared.’’
According to the petitioner’s confession, as the peti-
tioner made his way across the deck, he slipped and
fell down some stairs and, in the process, his ‘‘hand
went up,’’ and he fired another shot. He then heard a
loud noise and ‘‘thought maybe someone was shooting
back at [him], so, when [he] got up [and] . . . was
walking away, [he] shot again back [toward] the bar
. . . .’’ In his confession, the petitioner described his
own conduct as ‘‘reckless’’ and stated that he would
not have done what he did had he not been so ‘‘wasted.’’
The petitioner further stated that, after the shooting,
he and Velez fled to New York. On their way to New
York, the petitioner disposed of the firearm and bullets,
which the police subsequently recovered.
The state presented ample evidence corroborating
the petitioner’s confession that he was the shooter. The
state’s evidence included the presence of the petition-
er’s DNA on the recovered firearm and the forensic
matching of the firearm to the bullets recovered from
the victims’ bodies. Additionally, Velez implicated the
petitioner in the shooting, and several eyewitnesses
identified the petitioner as the shooter.
The petitioner was arrested and charged with murder
in violation of General Statutes § 53a-54a (a), assault
in the first degree in violation of § 53a-59 (a) (5), and
criminal possession of a firearm in violation of § 53a-217
(a). At the petitioner’s criminal trial, DeSantis requested
that the jury be instructed on self-defense, as well as
on the lesser included offenses of manslaughter in the
first degree with a firearm pursuant to §§ 53a-55 (a) (1)
and 53a-55a (a) (intentional), manslaughter in the first
degree with a firearm pursuant to §§ 53a-55 (a) (3) and
53a-55a (a) (extreme indifference), and manslaughter
in the second degree with a firearm pursuant to General
Statutes §§ 53a-56 (a) (1) and 53a-56a (a) (reckless).
The trial court agreed to include each of these requested
instructions in its jury charge.
During closing argument, DeSantis argued: ‘‘[There
was no] evidence presented that [the petitioner] intended
to kill anybody. . . . [The state] ha[s] to prove beyond
a reasonable doubt that [the petitioner] intended to
kill another person. . . . [I]t’s a horrible tragedy [that
Richardson died], and you can’t get around it. But he
did not have the intent; it is not a murder case. The same
thing with . . . Roderick . . . . It wasn’t his intent to
do that, and I’ll get more into the reason why, but he
was reckless, he was intoxicated, and careless; he is
not a murderer.’’
DeSantis continued: ‘‘[The petitioner] is told by . . .
Velez that . . . [Lee] is out there; [the petitioner] testi-
fies he gets scared. At some point . . . Velez gives [the
petitioner] the gun . . . . The only way in and out of
that bar is to go out that entrance on the porch. So,
[the petitioner] is going out there, he’s leaving, he wants
to get out of there, and he sees . . . Lee standing there.
He gets scared, he gets nervous, and he thinks [Lee] is
maybe going to shoot him. He—you’ll hear more of this,
about what’s allowable under self-defense—thinks that
he’s in immediate threat of harm. So, he takes out the
gun [and] tries to fire a warning shot; he’s intoxicated,
he’s scared, there’s a crowd of people, and he fires a
shot. . . . [H]e’s trying to get out of the situation. . . .
It doesn’t make sense that that would be something
that he is doing on purpose. It’s something that he’s
acting recklessly, and he doesn’t have the intent to
murder or he’s intending to shoot the person; he’s aim-
ing the gun in a reckless manner and not [toward] any-
body specific.
***
‘‘He just gets more afraid, so he’s going to fire a
warning shot. In looking back, it was stupid. At the
time he was drunk, he was scared; it seemed like the
best thing to do, so he fires a shot. He doesn’t know
where that shot went, but he was scared, and he was
trying to get out of there. . . . He heard a shot when
he was leaving, as he’s trying to get out of there, and
that’s why he reaches back and fires a shot, and it was
in self-defense and because he was scared. That, again,
goes [toward] either he was defending himself or to
manslaughter charges; again, not murder charges.’’
DeSantis closed by noting: ‘‘[The petitioner] gets on
the video and cooperates with [the police] and admits
he shot into the crowd; he did the shooting, he caused
the death of . . . Richardson, but it’s a manslaughter
not a murder. And he certainly didn’t intend to assault
. . . Roderick, and the injury to [her] did not reach the
level of assault in the first degree.’’
During the state’s closing argument, the prosecutor
disputed the petitioner’s contention that he never
intended to hurt anyone, arguing, instead, that the
shooting was premeditated. The prosecutor maintained
that the petitioner and Velez had gone to the bar
intending to shoot Lee, a rival drug dealer. The prosecu-
tor argued that the gun used in the shooting belonged
to the petitioner, not Velez, as the petitioner claimed,
and that the petitioner’s actions following the shooting
were consistent with a finding that he intended to kill
Lee. The prosecutor further argued that the evidence
belied the petitioner’s claim that he acted in self-
defense. The prosecutor noted that, when the petitioner
first saw Lee and became scared, the petitioner was
inside the bar and could have left through the front
door, thereby avoiding contact with Lee,3 but, instead,
he chose to go out onto the deck, where Lee was stand-
ing.
The jury found the petitioner not guilty of murder
but guilty of the lesser included offense of manslaughter
in the first degree with a firearm and assault in the first
degree. The trial court found the petitioner guilty of
criminal possession of a firearm. Thereafter, the court
sentenced the petitioner to a total effective sentence
of forty-seven years of incarceration, followed by ten
years of special parole.
On August 26, 2019, the petitioner filed an amended
petition for a writ of habeas corpus, alleging, inter alia,
that his sixth amendment rights to autonomy under
McCoy and the effective assistance of counsel under
Strickland were violated when DeSantis ‘‘conceded in
his closing argument, without informing the petitioner
and/or obtaining the petitioner’s consent, that the peti-
tioner had acted recklessly and was guilty of manslaugh-
ter.’’
At his habeas trial, the petitioner testified that, prior
to his criminal trial, DeSantis met with him on several
occasions to discuss the strengths and weakness of his
case and the best defense strategies to pursue. The
petitioner stated that, although he favored claiming self-
defense—based on the danger that he perceived Lee
posed—he also wanted the jury instructed on man-
slaughter in the second degree. According to the peti-
tioner, DeSantis informed him that, if they asked for
an instruction on manslaughter in the second degree,
the state would insist that the instruction for man-
slaughter in the first degree be given as well. When the
petitioner was asked by habeas counsel whether there
was ‘‘ever any consent on your part to concede that
you were guilty of manslaughter as a part of [your]
defense,’’ he responded, ‘‘[n]o, we never discussed
that.’’ When asked whether ‘‘DeSantis ever discuss[ed]
with you the idea that conceding guilt on manslaughter
may be helpful in a jury finding you not guilty on mur-
der,’’ the petitioner responded, ‘‘[n]o, we never dis-
cussed none of that.’’
DeSantis recalled his conversations with the peti-
tioner rather differently. He believed that the petition-
er’s best defense was to focus on the element of intent
and to argue that the petitioner lacked the requisite
intent to commit murder. Nevertheless, DeSantis agreed
to present a dual trial strategy of arguing self-defense4
while also characterizing the petitioner’s conduct as
manslaughter to avoid a conviction on the murder
charge, which carried a much greater penalty. DeSantis
believed that it was necessary to argue that the petition-
er’s conduct was reckless in order to effectively carry
out either strategy. DeSantis testified that he conferred
with the petitioner several times regarding this strategy
and that the petitioner agreed to it.
In his posttrial habeas brief, the petitioner argued
that ‘‘[DeSantis’] concession of the petitioner’s guilt to
the charge of manslaughter . . . without [his] prior
approval . . . violated [his] rights to effective assis-
tance of counsel [under Strickland and] personal auton-
omy [under McCoy] . . . .’’ The habeas court found no
merit in either contention. In a thorough and compre-
hensive memorandum of decision, the court explained
that, in McCoy, the United States Supreme Court recog-
nized a sixth amendment right to autonomy allowing a
criminal defendant ‘‘to make fundamental choices
about his own defense, including whether to persist in
maintaining his innocence . . . .’’ (Internal quotation
marks omitted.) The habeas court, quoting McCoy v.
Louisiana, supra, 138 S. Ct. 1507, noted that McCoy
made clear that the right to autonomy is violated only
when defense counsel ‘‘concede[s] guilt over the defen-
dant’s intransigent and unambiguous objection.’’ (Inter-
nal quotation marks omitted.)
Applying McCoy to the petitioner’s claim, the habeas
court concluded: ‘‘[I]t was virtually unchallengeable
that [the petitioner] fired the shots that caused the death
of Richardson and [injured] Roderick. Thus, the only
viable defense strategies were self-defense—I did it,
but I was justified in doing so—or manslaughter—I did
not intend to kill. Both . . . defenses, even the one
favored by the [petitioner], require[d] an admission that
[the petitioner] was the individual who fired the shots.
Defense counsel undoubtedly has a duty to discuss
potential strategies with [a] defendant . . . [and]
DeSantis did so. In discussing the defense strategies
and [the petitioner’s] desire to pursue self-defense,
DeSantis necessarily discussed the mechanism by
which those defenses would be presented to the jury.
This is supported by [the petitioner’s] own testimony
that he wanted the jury instructed on manslaughter in
the second degree. There is no evidence before this
court that [the petitioner] objected to DeSantis’ strategy
of conceding that [the petitioner] fired the shots in
question, but either acted in self-defense when doing
so or did not possess the requisite mental state for
murder, when both strategies were discussed with [the
petitioner] before the trial.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Because the
right to autonomy is implicated only when a defendant
expressly objects to counsel’s concession of guilt, the
habeas court concluded that McCoy was inapplicable
under the facts of this case.5
The habeas court also rejected the petitioner’s claim
that DeSantis rendered ineffective assistance of counsel
by conceding the petitioner’s guilt as to manslaughter.
The court found that the concession was a legitimate
trial strategy ‘‘necessitated by the overwhelming evi-
dence proving almost indisputably that [the petitioner]
was present at the scene and wantonly fired shots into
a crowd.’’ The court further reasoned that the strategy
was undeniably effective because the petitioner was
acquitted of the murder charge. Lastly, the court noted
that, even if DeSantis’ performance fell below an objec-
tive standard of reasonableness, there was no possibil-
ity that the petitioner was prejudiced by it given the
overwhelming strength of the state’s case.
I
We begin with the petitioner’s claim that the habeas
court incorrectly determined that McCoy was inapplica-
ble. The standard of review applicable to this claim is
well established. Although a challenge to the facts found
by the habeas court is reviewed under the clearly erro-
neous standard; see, e.g., Duperry v. Solnit, 261 Conn.
309, 335, 803 A.2d 287 (2002); whether those facts con-
stituted a violation of the petitioner’s rights under the
sixth amendment is a mixed question of law and fact
subject to this court’s plenary review. See Taylor v.
Commissioner of Correction, 324 Conn. 631, 637, 153
A.3d 1264 (2017).
On appeal, the petitioner does not contest the habeas
court’s finding that he never objected to DeSantis’ con-
cession. Rather he claims that his right to autonomy
was violated by DeSantis’ failure to ‘‘adequately inform’’
him of the ‘‘ramifications’’ the concession would have
with respect to arguing his self-defense claim. The peti-
tioner contends that he never would have agreed to the
concession had he fully understood those ramifica-
tions.6 The respondent, the Commissioner of Correc-
tion, counters that the habeas court correctly deter-
mined that McCoy was inapplicable to the facts of this
case. We agree with the respondent.
In McCoy, the United States Supreme Court recog-
nized a criminal defendant’s sixth amendment right to
autonomy in deciding the objectives of his defense and
concluded that the right prohibits defense counsel from
‘‘admit[ting] [a] client’s guilt of a charged crime over
the client’s intransigent objection to that admission.’’
McCoy v. Louisiana, supra 138 S. Ct. 1510. ‘‘When a
client expressly asserts that the objective of his defense
is to maintain innocence of the charged criminal acts,
his lawyer must abide by that objective and may not
override it by conceding guilt.’’ (Emphasis omitted;
internal quotation marks omitted.) Id., 1509.
The facts in McCoy were not in dispute. The peti-
tioner, Robert Leroy McCoy, was charged with three
counts of first degree murder. Id., 1506. Throughout the
proceedings, McCoy maintained his innocence,
insisting that he was out of state at the time of the
killings. Id. McCoy’s defense counsel, Larry English,
‘‘concluded that the evidence against McCoy was over-
whelming and that, [in the absence of] a concession at
the guilt stage that McCoy was the killer, a death sen-
tence would be impossible to avoid at the penalty
phase.’’ Id.
McCoy was ‘‘ ‘furious’ ’’ when English told him that
he intended to concede McCoy’s guilt to the murders.
Id. Two days before trial was set to begin, McCoy sought
to terminate English’s representation, and English simi-
larly requested that the court remove him as McCoy’s
counsel, given their disagreement over trial strategy.
Id. The trial court denied both requests; id.; and, subse-
quently, English argued to the jury that ‘‘there was no
way reasonably possible that [it] could hear the prose-
cution’s evidence and reach any other conclusion than
. . . McCoy was the cause of these individuals’
death[s]’’; (internal quotation marks omitted) id.; and
that ‘‘the evidence is unambiguous, [McCoy] committed
three murders.’’ (Internal quotation marks omitted.) Id.,
1507. Thereafter, McCoy took the witness stand to
assert his innocence and to ‘‘[press] an alibi difficult to
fathom.’’ Id. The jury found McCoy guilty on all three
murder counts, and, following the penalty phase hear-
ing, the trial court sentenced him to death in accordance
with the jury’s verdicts. Id. The Louisiana Supreme
Court subsequently upheld the trial court’s ruling that
English had authority to concede McCoy’s guilt, despite
McCoy’s opposition to any admission of guilt, conclud-
ing that ‘‘[t]he concession was permissible . . . because
[English] reasonably believed that admitting guilt afforded
McCoy the best chance to avoid the death [penalty].’’ Id.
The United States Supreme Court reversed the Louisi-
ana Supreme Court’s judgment, holding that ‘‘a defen-
dant has the right to insist that counsel refrain from
admitting guilt, even when counsel’s [experienced based]
view is that confessing guilt offers the defendant the
best chance to avoid the death penalty.’’ Id., 1505. The
court explained that, although the role of counsel neces-
sarily entails making certain ‘‘[t]rial management’’ and
‘‘strategic’’ decisions concerning ‘‘what arguments to
pursue, what evidentiary objections to raise, and what
agreements to conclude regarding the admission of evi-
dence,’’ other decisions are reserved for the client alone,
such as ‘‘whether to plead guilty, waive the right to a
jury trial, testify in one’s own behalf, and forgo an
appeal. . . .
‘‘Autonomy to decide that the objective of the defense
is to assert innocence belongs in this latter category.
. . . These are not strategic choices about how best to
achieve a client’s objectives; they are choices about
what the client’s objectives in fact are.’’ (Citation omit-
ted; emphasis in original; internal quotation marks omit-
ted.) Id., 1508.
In reaching its decision, the court distinguished Flor-
ida v. Nixon, 543 U.S. 175, 125 S. Ct. 551, 160 L. Ed.
2d 565 (2004), a case involving a Strickland claim in
which the ‘‘[c]ourt considered whether the [c]onstitu-
tion bars defense counsel from conceding a . . . defen-
dant’s guilt at trial when [the] defendant, informed by
counsel, neither consents nor objects . . . .’’ (Citation
omitted; internal quotation marks omitted.) McCoy v.
Louisiana, supra 138 S. Ct. 1505, quoting Florida v.
Nixon, supra, 178. In Nixon, the court concluded that,
‘‘[w]hen counsel informs [a] defendant of the strategy
counsel believes to be in the defendant’s best interest
and the defendant is unresponsive, counsel’s strategic
choice is not impeded by any blanket rule demanding
the defendant’s explicit consent.’’ Florida v. Nixon,
supra, 192.
The court explained that the distinguishing factor
between McCoy and Nixon was that, unlike the defen-
dant in Nixon, who ‘‘never verbally approved or pro-
tested counsel’s proposed approach’’; (internal quota-
tion marks omitted) McCoy v. Louisiana, supra, 138 S.
Ct. 1509; McCoy ‘‘vociferously insisted that he did not
engage in the charged acts and adamantly objected to
any admission of guilt.’’ Id., 1505. In such circumstances,
the court determined, English was constitutionally obli-
gated to honor McCoy’s wish to pursue a defense of
actual innocence, no matter how ill-advised or weak that
defense may have been. Id., 1509; see id., 1508 (‘‘[j]ust
as a defendant may steadfastly refuse to plead guilty
in the face of overwhelming evidence against her, or
reject the assistance of legal counsel despite the defen-
dant’s own inexperience and lack of professional quali-
fications, so may she insist on maintaining her inno-
cence at the guilt phase of a . . . trial’’).
We agree with the habeas court that the petitioner’s
right to autonomy was not implicated under the facts
of this case. As that court stated, there is simply no
evidence—at least none that the habeas court cred-
ited—that the petitioner ever disagreed with DeSantis’
trial strategy, much less that he did so expressly, as
McCoy requires.7 To the contrary, it is evident from the
habeas court’s memorandum of decision and our review
of the record that the habeas court credited DeSantis’
testimony that he and the petitioner had ‘‘numerous
conversations’’ about trial strategy and agreed that,
given the petitioner’s confession, DeSantis would have
to concede that the petitioner shot the victims but
would argue that he did so in self-defense or, alterna-
tively, that he lacked the requisite intent to commit
murder. With respect to the latter defense, DeSantis
testified that he and the petitioner discussed that this
would require DeSantis to argue that the petitioner
acted ‘‘in a reckless manner’’ but ‘‘didn’t intend to kill
somebody,’’ and the petitioner agreed to this approach.
The United States Supreme Court made clear in McCoy
that the sixth amendment right to autonomy is impli-
cated only when, over a defendant’s express objections,
counsel concedes the defendant’s guilt to a charged
offense. This limitation on the right to autonomy is
evident throughout the court’s decision but especially in
the court’s restatement of the issue presented: ‘‘whether
it is unconstitutional to allow defense counsel to con-
cede guilt over the defendant’s intransigent and unam-
biguous objection.’’ (Emphasis added.) McCoy v. Loui-
siana, supra, 138 S. Ct. 1507. Because no such objection
was made in this case—indeed, the petitioner does not
contend otherwise8—the habeas court correctly deter-
mined that the petitioner’s right to autonomy was not
implicated under the facts of this case.9
II
The petitioner next claims that DeSantis rendered
ineffective assistance of counsel by failing to adequately
explain to the jury ‘‘how recklessness relates to self-
defense.’’ The petitioner argues that, if DeSantis had
explained to the jury how the petitioner ‘‘could act
recklessly, but also in lawful self-defense,’’ there is a
reasonable probability that the state ‘‘would have been
unable to disprove that defense beyond a reasonable
doubt.’’
The respondent argues that this court should decline
to reach the petitioner’s ineffective assistance claim
because it is unpreserved. The respondent contends
that the petitioner’s sole argument before the habeas
court was that DeSantis’ representation was ineffective
insofar as he failed to consult with him about the con-
cession he planned to make at trial, whereas now he
claims that DeSantis’ representation was ineffective
insofar as he failed to adequately explain to the jury
‘‘how recklessness relates to self-defense.’’
The petitioner counters that the issue of DeSantis’
deficient advocacy with respect to his self-defense claim
is preserved because ‘‘[i]mplicit in [the petitioner’s]
argument [before the habeas court] is that [DeSantis’]
focus on a manslaughter verdict and decision not to
press [the petitioner’s] assertion of his legal innocence—
that [the petitioner] acted in lawful self-defense—vio-
lated [his sixth amendment rights].’’ We disagree.
We have repeatedly stated that ‘‘[a] party cannot pres-
ent a case to the trial court on one theory and then
seek appellate relief on a different one . . . . For this
court to . . . consider [a] claim on the basis of a spe-
cific legal ground not raised during trial would amount
to trial by ambuscade, unfair both to the [court] and
to the opposing party.’’ (Internal quotation marks omit-
ted.) Council v. Commissioner of Correction, 286 Conn.
477, 498, 944 A.2d 340 (2008). Moreover, ‘‘ ‘we will not
review a claim unless it was distinctly raised at trial.’
Crawford v. Commissioner of Correction, 294 Conn.
165, 203, 982 A.2d 620 (2009); [see] id., 202–204 (declin-
ing to review petitioner’s claim that habeas court
improperly failed to apply due process analysis to his
claim of right to appeal); see also Practice Book § 60-
5 (‘[t]he court shall not be bound to consider a claim
unless it was distinctly raised at the trial or arose subse-
quent to the trial’).’’ Eubanks v. Commissioner of Cor-
rection, 329 Conn. 584, 597, 188 A.3d 702 (2018). ‘‘[O]nly
in [the] most exceptional circumstances can and will
this court consider a claim, constitutional or otherwise,
that has not been raised and decided in the trial court.’’
(Internal quotation marks omitted.) Diaz v. Commis-
sioner of Correction, 335 Conn. 53, 58, 225 A.3d 953(2020). We can think of no reason, and the petitioner
has provided none, why this court should deviate from
these well established principles in the present case.
Before the habeas court, the petitioner argued that
DeSantis’ representation was ineffective insofar as he
conceded the petitioner’s guilt as to manslaughter with-
out consulting the petitioner. This was the extent of
the petitioner’s ineffective assistance claim before that
court. Nowhere did he argue—not in his petition, not
at trial, and not in his posttrial brief—any inadequacy in
DeSantis’ closing argument concerning the relationship
between recklessness and self-defense. Nor did the
habeas court address any such claim. Accordingly, we
agree with the respondent that the petitioner’s claim
on appeal is unpreserved and decline to review it.
The judgment is affirmed.
In this opinion the other justices concurred.
* December 27, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The habeas court granted the petitioner’s petition for certification to
appeal pursuant to General Statutes § 52-470 (g). The petitioner subsequently
appealed from the judgment of the habeas court to the Appellate Court,
and we transferred the appeal to this court pursuant to General Statutes
§ 51-199 (c) and Practice Book § 65-1.
2
Although the petitioner’s criminal trial concluded three years before
McCoy was decided, the petitioner argues that the right to autonomy recog-
nized therein was a new watershed rule of criminal procedure under Teague
v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and, therefore,
it must be given retroactive effect. Because we conclude that McCoy is
inapplicable to this case, we leave the question of its retroactivity for
another day.
3
General Statutes § 53a-19 (b) provides in relevant part that ‘‘a person is
not justified in using deadly physical force upon another person if he or
she knows that he or she can avoid the necessity of using such force with
complete safety . . . by retreating . . . .’’
We note that, although § 53a-19 has been amended by the legislature since
the events underlying the present case; see Public Acts 2019, No. 19-108,
§ 3; those amendments have no bearing on the merits of this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
Evidence adduced at the petitioner’s criminal trial established that there
were ‘‘numerous exits [at the bar], which had been an old schoolhouse,’’
such that patrons ‘‘could get out in multiple, different ways.’’
4
‘‘[When] the evidence warrants, the trial court must instruct the jury on
self-defense in cases involving the charge of manslaughter in the second
degree.’’ State v. Hall, 213 Conn. 579, 585, 569 A.2d 534 (1990).
5
Relying on case law from the United States Court of Appeals for the
Second Circuit, the habeas court also concluded that McCoy was inapplicable
for the additional reason that DeSantis had not actually conceded guilt on
the charged offense (murder) but only as to an element of that offense—
identity, which he did by admitting that the petitioner was the shooter. See
United States v. Rosemond, 958 F.3d 111, 122 (2d Cir. 2020) (concluding
that ‘‘the right to autonomy is not implicated when defense counsel concedes
one element of the charged crime while maintaining that the defendant is
not guilty as charged’’), cert. denied, U.S. , 141 S. Ct. 1057, 208 L.
Ed. 2d 524 (2021). The habeas court reasoned that, even if DeSantis’ state-
ments could be construed as conceding guilt, it was a concession of guilt
to a lesser included offense and, therefore, should be assessed within the
ineffective assistance of counsel framework of Strickland, not under McCoy.
Specifically, the habeas court observed that, ‘‘[w]hile some ambiguity can
be read into McCoy as to whether it applies to lesser included offenses,
other courts have consistently held that counsel’s concession of guilt [as
to] a lesser included offense is to be viewed through the lens of an ineffective
assistance of counsel claim.’’ (Footnote omitted.) Because we conclude that
McCoy is inapplicable for other reasons, we need not decide whether it is
inapplicable for the additional reason cited by the habeas court.
6
The petitioner advances several additional arguments in support of his
autonomy claim that we need not reach because we agree with the habeas
court’s finding that the petitioner failed to establish the threshold showing
for advancing a claim under McCoy.
7
We note that the habeas court assumed, without deciding, that the princi-
ples enunciated in McCoy and Nixon—both death penalty cases—were
applicable outside the capital offense context. Such an assumption was
warranted. It is axiomatic that the sixth amendment applies to all criminal
prosecutions and that the rights secured thereunder do not turn on the
severity of the potential punishment for an offense. See U.S. Const., amend.
VI (‘‘[i]n all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein
the crime shall have been committed, which district shall have been pre-
viously ascertained by law, and to be informed of the nature and cause of
the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense’’).
8
In his posttrial brief in the habeas court, the petitioner conceded that
his case was distinguishable from McCoy because, unlike the petitioner in
McCoy, he did not object to DeSantis’ concession. The petitioner argued,
however, that the record ‘‘reasonably support[ed]’’ a finding ‘‘that DeSantis
failed to inquire with the petitioner prior to [conceding his guilt] . . . .’’
The petitioner then argued that ‘‘[i]t is tautological that, if counsel is not
free to concede to a client’s guilt for strategic purposes over a client’s
objection, counsel should similarly not be free to do so without inquiring
with the client at all.’’ Since McCoy, courts that have considered similar
claims have held that they should be analyzed within the Strickland ineffec-
tive assistance of counsel framework. See, e.g., Harvey v. State, 318 So. 3d
1238, 1239–40 (Fla. 2021) (in absence of express objection to counsel’s
concession, claim that counsel conceded guilt without consulting defendant
implicates right to effective assistance of counsel under Nixon and Strick-
land, not right to autonomy under McCoy), cert. denied, U.S. , 142
S. Ct. 1110, 212 L. Ed. 2d 8 (2022); Harper v. State, Docket No. 20-1537,
2022 WL 1100280, *4–7 (Iowa App. April 13, 2022) (decision without pub-
lished opinion, 978 N.W.2d 99) (same); see also Palmer v. Garrett, Docket
No. 3:18-cv-00245-HDM-CLB, 2022 WL 3684713, *7 (D. Nev. August 25, 2022)
(concluding that McCoy was inapplicable to claim that counsel did not
adequately advise petitioner of ramifications of concession strategy because
‘‘McCoy addressed a [defendant’s] autonomy, not counsel’s competence
. . . and any claims challenging trial counsel’s advice could have been raised
in [the petitioner’s] first . . . [habeas] petition based on Nixon’’ (citation
omitted; internal quotation marks omitted)). See generally In re Somerville,
Docket No. 53586-6-II, 2020 WL 6281524, *4 (Wn. App. October 27, 2020)
(decision without published opinion, 14 Wn. App. 2d 1068) (‘‘McCoy points
to Nixon for the proposition that counsel has a duty to develop a trial
strategy and [to] discuss it with his or her client, but McCoy . . . does not
hold that there is an inherent violation of a defendant’s autonomy to decide
a defense objective if that first duty is violated’’).
9
In addition to his claim under McCoy, the petitioner asks us to exercise
our supervisory authority over the administration of justice to adopt a
retroactive, prophylactic rule requiring criminal defense attorneys to obtain
a defendant’s written consent to concede guilt as to an offense as part of
their trial strategy. We decline the petitioner’s request. We are not persuaded
that traditional protections are insufficient for ensuring that criminal defense
attorneys adequately apprise defendants of their intent to concede at trial
guilt as to an offense. See, e.g., In re Daniel N., 323 Conn. 640, 647–48, 150
A.3d 657 (2016) (‘‘[o]nly in the rare circumstance [in which] . . . traditional
protections are inadequate to ensure the fair and just administration of the
courts will we exercise our supervisory authority to reverse a judgment’’
(internal quotation marks omitted)). The sixth amendment guarantee of the
effective assistance of counsel; see, e.g., Florida v. Nixon, supra, 543 U.S.
178 (recognizing defense counsel’s ‘‘[constitutional] duty to discuss potential
strategies with the defendant’’); Strickland v. Washington, supra, 466 U.S.
688 (recognizing defense counsel’s ‘‘overarching duty [under the sixth
amendment] to advocate the defendant’s cause and the more particular
duties to consult with the defendant on important decisions and to keep
the defendant informed of important developments in the course of the
prosecution’’); and the Rules of Professional Conduct; see e.g., Rules of
Professional Conduct 1.2 (‘‘a lawyer shall abide by a client’s decisions con-
cerning the objectives of representation and . . . shall consult with the
client as to the means by which they are to be pursued’’); Rules of Profes-
sional Conduct 1.4 (‘‘[a] lawyer shall . . . keep the client reasonably
informed about the status of a matter . . . promptly comply with reasonable
requests for information . . . [and] explain a matter to the extent reason-
ably necessary to permit the client to make informed decisions regarding
the representation’’); demand no less of competent counsel.
Although we choose not to exercise our supervisory authority, we nonethe-
less strongly encourage criminal defense attorneys to memorialize critical
conversations with clients concerning trial strategy and to retain those
records. Doing so benefits not only the client but the attorney as well should
a claim later be made that the attorney failed to adequately apprise the
client of the risks and rewards attendant to any such strategy.