Cator v. Commissioner of Correction , 181 Conn. App. 167 ( 2018 )

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FRANTZ CATOR v. COMMISSIONER
OF CORRECTION
(AC 39795)
Alvord, Prescott and Pellegrino, Js.
Syllabus
The petitioner, who previously had been convicted of, inter alia, felony
murder in connection with a shooting incident and had filed three peti-
tions for a writ of habeas corpus, filed a fourth petition for a writ of
habeas corpus, claiming, inter alia, that his appellate counsel had ren-
dered ineffective assistance on direct appeal from his conviction. The
petitioner had picked up the shooter in his vehicle and driven to the
victim’s residence, where the victim was forced into the vehicle and
later fatally shot with a gun that belonged to the petitioner. In his fourth
habeas petition, the petitioner claimed, inter alia, that his appellate
counsel improperly failed to raise a claim that the trial court improperly
instructed the jury on intent, and that the evidence was insufficient to
sustain the petitioner’s convictions of murder, conspiracy to commit
murder and felony murder. The habeas court rendered judgment denying
the habeas petition and, thereafter, denied the petition for certification
to appeal, and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal, as the petitioner’s claims did not involve issues
that were debatable among jurists of reason, that could have been
resolved by a court in a different manner or that deserved encouragement
to proceed further.
2. The habeas court properly determined that the petitioner failed to demon-
strate that his appellate counsel provided ineffective assistance:
a. The petitioner could not prevail on his unpreserved claim that his
appellate counsel should have raised a claim that the trial court improp-
erly read to the jury the entire statutory (§ 53a-3 [11]) definition of
intent when the crimes with which the petitioner was charged required
instructions only as to specific intent; the record supported the habeas
court’s conclusion that appellate counsel made a reasonable strategic
decision to forgo a weak claim of instructional error, as the record
indicated that the trial court read the improper instruction only as a
general definition of intent, and that it repeatedly gave a proper instruc-
tion as to each offense and provided the jury with a handout that listed
the essential elements of each charged offense, and, under the facts of
the present case, because an appellate court may have rejected a claim
that there was a reasonable possibility that the trial court’s instructions
misled the jury, the petitioner’s claim would have failed to satisfy the
requirement of State v. Golding (213 Conn. 233) that a constitutional
violation existed and deprived him of a fair trial.
b. The petitioner’s appellate counsel was not ineffective and acted rea-
sonably by not raising a claim that the evidence was insufficient to
prove that the petitioner was guilty of murder as an accessory and
conspiracy to commit murder, there having been sufficient evidence
adduced at trial to prove that the petitioner was guilty of those crimes;
the jury reasonably could have found, inter alia, that the petitioner had
been angered by the disappearance of a certain gun, that the petitioner
drove away from the victim’s residence after the victim had been forced
into the petitioner’s vehicle, that the victim was shot after he and the
alleged shooter had gotten out of the vehicle, that the petitioner drove
back to the victim’s residence after the shooting, and that the victim
was fatally shot with a gun that belonged to the petitioner.
c. The petitioner could not prevail on his claim that his appellate counsel
was ineffective in failing to raise a claim that the evidence was insuffi-
cient with respect to the charge of felony murder; the habeas court
properly concluded that the jury logically and reasonably could have
inferred that, during the victim’s abduction by the petitioner, the peti-
tioner supplied the shooter with the firearm that was used to kill the
victim.
3. The petitioner’s claim that his due process rights were violated when the
trial court erroneously instructed the jury as to intent was unavailing;
the habeas court properly determined that the petitioner’s due process
claim was subject to procedural default and that the petitioner failed
to demonstrate good cause and actual prejudice to excuse the procedural
default of his claim, which was not raised on direct appeal pursuant to
a reasonable strategy.
Argued November 14, 2017—officially released April 17, 2018
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, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (petitioner).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Emily D. Trudeau, deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
PELLEGRINO, J. The petitioner, Frantz Cator,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his fourth petition for a writ of habeas corpus.
On appeal, the petitioner claims that the habeas court
(1) abused its discretion in denying his petition for
certification to appeal from the denial of his amended
petition, (2) improperly concluded that he failed to
establish that his appellate counsel in his direct criminal
appeal rendered deficient performance, and (3) improp-
erly concluded that his stand-alone due process claim
was procedurally defaulted. We conclude that the
habeas court did not abuse its discretion in denying the
petition for certification to appeal and, accordingly,
dismiss the petitioner’s appeal.
The following facts and procedural history are rele-
vant to our disposition of the petitioner’s appeal. In
connection with the murder of the victim, Nathaniel
Morris, the state charged the petitioner with capital
felony in violation of General Statutes § 53a-54b (5);
felony murder in violation of General Statutes § 53a-
54c; murder as an accessory in violation of General
Statutes §§ 53a-54a (a) and 53a-8 (a); conspiracy to com-
mit murder in violation of General Statutes §§ 53a-48
and 53a-54a (a); kidnapping in the second degree in
violation of General Statutes § 53a-94 (a); conspiracy
to commit kidnapping in the second degree in violation
of §§ 53a-48 and 53a-94 (a); and commission of a Class
A, B or C felony with a firearm in violation of General
Statutes § 53-202k.
A five day jury trial began on October 14, 1997. At
the close of the state’s evidence, the petitioner’s trial
counsel, Kevin Randolph, moved for a judgment of
acquittal with respect to the charges of capital felony
murder, felony murder, murder, conspiracy to commit
murder and conspiracy to commit kidnapping in the
second degree on the basis of insufficient evidence.
The court granted the petitioner’s motion only as to
the capital felony murder charge. The petitioner was
subsequently convicted on all remaining charges and
sentenced to a total effective term of fifty-five years
incarceration, execution suspended after fifty years,
followed by five years of probation. See State v. Cator,
256 Conn. 785, 787–88, 781 A.2d 285 (2001).
The petitioner appealed from the trial court’s judg-
ment to this court, and our Supreme Court transferred
the appeal to itself pursuant to General Statutes § 51-
199 (c) and Practice Book § 65-1. Id., 788. Attorney
Suzanne Zitser, the petitioner’s appellate counsel,
raised seven issues on his behalf, specifically claiming
that the trial court improperly ‘‘(1) failed to determine
whether there was a conflict in dual representation at
the probable cause hearing; (2) admitted evidence of the
[petitioner’s] prior, uncharged drug dealing; (3) failed
to instruct the jury regarding the [petitioner’s] prior
drug dealing; (4) modified the judgment of conviction
after the [petitioner] had begun serving his imposed
prison term; (5) charged the jury that § 53-202k is a
separate offense and encompasses accessory liability;
(6) sentenced him to concurrent terms for two conspira-
cies and thereby violated the ban on double jeopardy;
and (7) failed to provide him with formal notice that
he had violated his probation stemming from a previous
conviction.’’ State v. Cator, supra, 256 Conn. 789. Our
Supreme Court subsequently reversed the trial court’s
judgment in part and remanded the case with direction
(1) to vacate the petitioner’s conviction under § 53-202k
and to conduct a new trial on the issue of whether the
petitioner ‘‘used a proscribed firearm in the commission
of the underlying offense’’; id., 812; and (2) to merge
the petitioner’s convictions of the conspiracy offenses
and to impose one sentence for that conviction. See
id., 813. The judgment was affirmed in all other aspects.
See id. On April 22, 2003, the trial court modified the
petitioner’s sentence to a total effective sentence of
forty-five years.
The petitioner has brought five habeas petitions since
he was convicted.1 On December 4, 2013, the self-repre-
sented petitioner filed his fourth petition for a writ of
habeas corpus. On June 7, 2016, the petitioner, repre-
sented by appointed counsel, filed the amended three
count operative petition. The petitioner alleged: (1) the
ineffective assistance of his trial counsel; (2) the ineffec-
tive assistance of his appellate counsel in his direct
criminal appeal, on the basis of her failure to raise
claims of instructional error and insufficient evidence to
sustain his convictions of murder, conspiracy to commit
murder, and felony murder; and (3) a violation of his
due process rights at his underlying criminal trial on
the basis of the aforementioned instructional impropri-
ety. On July 12, 2016, the respondent, the Commissioner
of Correction, moved to dismiss the petitioner’s
amended petition in its entirety. On July 21, 2016, the
petitioner filed an objection to the respondent’s motion
to dismiss.
The habeas trial was held on July 25, 2016. The habeas
court granted the respondent’s motion to dismiss with
respect to the petitioner’s claim against his trial counsel.
The habeas court heard testimony from Randolph,
Zitser, and Assistant State’s Attorney C. Robert Satti,
Jr., the prosecutor in the petitioner’s criminal trial. The
petitioner also presented expert testimony from Attor-
ney Norman A. Pattis, an expert in criminal defense
matters in state court, and Attorney Michael Taylor, an
expert in appellate law, both of whom rendered opin-
ions as to the effectiveness of Zitser. On October 11,
2016, the habeas court issued a written decision denying
the petitioner’s amended petition. The habeas court
concluded that the petitioner failed to establish that
Zitser had rendered deficient performance and that the
petitioner’s due process claim was procedurally
defaulted. Thereafter, on October 19, 2016, the habeas
court denied the petition for certification to appeal, and
this appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal from the denial of his amended petition for a
writ of habeas corpus. We disagree.
Preliminarily, we set forth the standard of review
that governs our disposition of the petitioner’s appeal.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Internal
quotation marks omitted.) Salmon v. Commissioner
of Correction, 178 Conn. App. 695, 700–701, 177 A.3d
566 (2017).
As discussed subsequently in parts II and III of this
opinion, we conclude that the petitioner’s underlying
claims do not involve issues that are debatable among
jurists of reason, could not have been resolved by a
court in a different manner or that the questions raised
deserve encouragement to proceed further. Accord-
ingly, the habeas court did not abuse its discretion in
denying the petition for certification to appeal from the
denial of the amended petition for a writ of habeas
corpus.
II
We now turn to the petitioner’s substantive claims
that the habeas court improperly concluded that the
petitioner failed to establish ineffective assistance of
his appellate counsel. The petitioner claims that his
appellate counsel rendered ineffective assistance by
failing to raise the following claims on direct appeal:
(1) instructional error with respect to intent, and (2)
insufficient evidence adduced at trial to sustain his con-
victions of murder as an accessory, conspiracy to com-
mit murder, and felony murder. We disagree.
We begin by setting forth the applicable standard of
review and legal principles governing claims of ineffec-
tive assistance of appellate counsel. ‘‘The habeas court
is afforded broad discretion in making its factual find-
ings, and those findings will not be disturbed unless they
are clearly erroneous. . . . Historical facts constitute
a recital of external events and the credibility of their
narrators. . . . Accordingly, the habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.
. . . The application of the habeas court’s factual find-
ings to the pertinent legal standard, however, presents
a mixed question of law and fact, which is subject to
plenary review.’’ (Internal quotation marks omitted.)
Id., 703.
‘‘[I]t is well established that [a] criminal defendant
is constitutionally entitled to adequate and effective
assistance of counsel at all critical stages of criminal
proceedings. Strickland v. Washington, [466 U.S. 668,
686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of the
Connecticut constitution.’’ (Internal quotation marks
omitted.) Salmon v. Commissioner of Correction,
supra, 178 Conn. App. 702. ‘‘Our Supreme Court has
adopted [the] two part analysis [set forth in Strickland
v. Washington, supra, 687] in reviewing claims of inef-
fective assistance of appellate counsel. . . . To prevail
on a claim of ineffective assistance of counsel, a peti-
tioner must show (1) that counsel’s performance was
deficient and (2) that the deficient performance preju-
diced the defense. . . . Because the petitioner must
satisfy both prongs of the Strickland test to prevail on
a habeas corpus petition, this court may dispose of the
petitioner’s claim if he fails to meet either prong. . . .
‘‘Under the performance prong, [a] court must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance . . . . [Although] an appellate advocate
must provide effective assistance, [she] is not under an
obligation to raise every conceivable issue. A brief that
raises every colorable issue runs the risk of burying
good arguments . . . in a verbal mound made up of
strong and weak contentions. . . . [I]f the issues not
raised by his appellate counsel lack merit, [the peti-
tioner] cannot sustain even the first part of this dual
burden since the failure to pursue unmeritorious
claims cannot be considered conduct falling below the
level of reasonably competent representation.’’
(Emphasis in original; internal quotation marks omit-
ted.) Toccaline v. Commissioner of Correction, 177
Conn. App. 480, 496, 172 A.3d 821, cert. denied, 327
Conn. 986, 175 A.3d 45 (2017).
A
With that legal framework in mind, we first address
the petitioner’s claim that the habeas court improperly
concluded that his appellate counsel did not render
deficient performance by failing to raise an instructional
claim on direct appeal. More specifically, the petitioner
challenges the habeas court’s conclusion that appellate
counsel made a ‘‘strategic decision’’ not to pursue this
claim on appeal given the ‘‘preexisting judicial recogni-
tion of the instructional impropriety.’’ We disagree with
the petitioner.
In order to determine whether appellate counsel
made a reasonable strategic decision not to raise the
claim of instructional error in the petitioner’s direct
criminal appeal, we must evaluate the merits of the
claim itself. Although the petitioner’s instructional error
claim was not preserved before the criminal trial court,
had the claim been raised on direct appeal, review may
have been available at that time pursuant to State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015),2 or alternatively, the plain error
doctrine.3
‘‘[The Golding doctrine] permits a [petitioner] to pre-
vail on [an unpreserved] claim of constitutional error
. . . only if all of the following conditions are met: (1)
the record is adequate to review the alleged claim of
error; (2) the claim is of constitutional magnitude alleg-
ing the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the [petitioner] of a fair trial; and (4) if subject to harm-
less error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation
beyond a reasonable doubt. . . . [T]he first two
[prongs of Golding] involve a determination of whether
the claim is reviewable; the second two . . . involve a
determination of whether the [petitioner] may prevail.’’
(Citations omitted; internal quotation marks omitted.)
State v. Montanez, 277 Conn. 735, 743–44, 894 A.2d 928
(2006). The record in the present case is adequate for
our review because it contains the full transcript of
the underlying criminal proceedings. Moreover, ‘‘when
intent is an element of a crime, a trial court’s failure
to instruct the jury properly with respect to intent impli-
cates the due process rights of the [petitioner].’’ Id.,
744. We therefore turn to Golding’s third prong, which
is dispositive of the petitioner’s instructional claim. See,
e.g., State v. Aviles, 107 Conn. App. 209, 230, 944 A.2d
994 (‘‘as to unpreserved claims of constitutional error
in jury instructions, we have stated that under the third
prong of Golding, [a] defendant may prevail . . . only
if . . . it is reasonably possible that the jury was mis-
led’’ [internal quotation marks omitted]), cert. denied,
287 Conn. 922, 951 A.2d 570 (2008).
The issue in the present matter is whether the peti-
tioner’s appellate counsel should have raised a claim
that the trial court improperly instructed the jury on
intent when it read the entire definitional language of
General Statutes § 53a-3 (11). Section 53a-3 (11) pro-
vides that ‘‘[a] person acts ‘intentionally’ with respect
to a result or to conduct described by a statute defining
an offense when his conscious objective is to cause
such result or to engage in such conduct . . . .’’
The petitioner argues that it was improper for the
trial court to instruct the jury regarding general intent,
the intent to engage in conduct, and specific intent, the
intent to cause such result, because the crimes he was
charged with required instructions only as to specific
intent.4 The petitioner further argues that ‘‘[a]s a result
of this instructional impropriety, the jury was misled
as to the state’s burden of proof on the essential element
of intent,’’ and the error allowed the jury to find him
guilty of specific intent crimes while employing the
lower standard of general intent. In response, the
respondent argues that, viewing the charge in its
entirety, there is no reasonable possibility that the jury
was misled because the ‘‘trial court repeatedly
instructed the jury regarding the specific intent neces-
sary to commit murder, second degree kidnapping, and
conspiracy to commit those crimes.’’ We agree with
the respondent.
We next set forth the legal principles applicable to
our analysis of the petitioner’s instructional claim.
‘‘[I]ndividual jury instructions should not be judged in
artificial isolation, but must be viewed in the context
of the overall charge. . . . The pertinent test is whether
the charge, read in its entirety, fairly presents the case
to the jury in such a way that injustice is not done to
either party under the established rules of law. . . .
Thus, [t]he whole charge must be considered from the
standpoint of its effect on the [jurors] in guiding them
to the proper verdict . . . and not critically dissected
in a microscopic search for possible error. . . .
Accordingly, [i]n reviewing a constitutional challenge
to the trial court’s instruction, we must consider the jury
charge as a whole to determine whether it is reasonably
possible that the instruction misled the jury. . . . In
other words, we must consider whether the instructions
[in totality] are sufficiently correct in law, adapted to
the issues and ample for the guidance of the jury.’’
(Internal quotation marks omitted.) Salters v. Commis-
sioner of Correction, 175 Conn. App. 807, 818–19, 170
A.3d 25, cert. denied, 327 Conn. 969, 173 A.3d 954 (2017);
see also State v. Revels, 313 Conn. 762, 784, 99 A.3d
1130 (2014), cert. denied, U.S. , 135 S. Ct. 1451,
191 L. Ed. 2d 404 (2015).
‘‘Although [our appellate courts] have stated that [i]t
is improper for the trial court to read an entire statute
to a jury when the pleadings or the evidence support
a violation of only a portion of the statute . . . that
is not dispositive. We must determine whether it is
reasonably possible that the jury was misled by the trial
court’s instructions.’’ (Internal quotation marks omit-
ted.) Salters v. Commissioner of Correction, supra, 175
Conn. App. 819. ‘‘[I]n cases in which the entire definition
of intent was improperly read to the jury, the conviction
of the crime requiring specific intent almost always has
been upheld because a proper intent instruction was
also given. [In those cases] [t]he erroneous instruction,
therefore, was not harmful beyond a reasonable
doubt.’’5 (Internal quotation marks omitted.) State v.
Rivet, 99 Conn. App. 230, 232–33, 912 A.2d 1103, cert.
denied, 281 Conn. 923, 918 A.2d 274 (2007). Beginning
with State v. DeBarros, 58 Conn. App. 673, 755 A.2d
303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000),
however, this court has recognized a limited number
of cases in which it was reasonably possible that the jury
was misled when the trial court included the complete
statutory definition of intent to the jury for crimes
requiring specific intent.6
With those legal principles in mind, we turn to the trial
court’s jury instructions as set forth in the transcripts
of the petitioner’s underlying criminal proceeding. On
Friday October 17, 1997, during its preliminary instruc-
tions, the court explained the following to the jury:
‘‘[The] offenses [to be defined] [on] Monday [are] all
specific intent crimes. That means that the person
charged has to have a specific intent to commit a partic-
ular crime.’’ The trial court defined intent as follows:
‘‘[I]ntent is the status in a person’s mind. It is the act
of an intellect. . . . [I]ntent is required for the commis-
sion of the crime. Intent is defined in the statutes. It
binds you and me. And [General Statutes § 53a-3 (11)]
states that a person acts intentionally with respect to
a result or to conduct described by a statute defining
an offense when his conscious objective is to cause a
result or to engage in such conduct. Murder is the
unlawful taking of the life of another with an intent to
take that life. The person charged with that offense
must act intentionally, the intent to take a life at the
time the life is taken, and it must be by the act of
the person charged. Intentional conduct is purposeful
conduct, rather than conduct that is accidental or inad-
vertent or unintentional conduct.’’ The court further
stated: ‘‘[A] person’s intention may be inferred from
their conduct or his conduct. You may infer from the
fact that an accused engaged in conduct that he
intended to engage in that conduct. . . . You may not
presume the existence of intent. You may not presume
that a person intended the consequences of their act,
but you may draw reasonable and logical inferences
that a person’s intention is exhibited by the total circum-
stances demonstrating the . . . conduct of the people
involved in this case.’’
The following Monday, the court repeated its prelimi-
nary instructions and, for a second time, read the full
statutory definition of intent under § 53a-3 (11).7
Throughout the remainder of its instructions, the court
referred the jury to this definition of intent on seven
occasions, but did not repeat the definition itself. The
court explained the principle of accessorial liability
under § 53a-8, noting that ‘‘[i]n order to be an accessory
to a crime, the [petitioner] must have the same criminal
intent required for the crime to which he is an accessory,
as I’ve explained intent to you and will explain it again.’’8
Thereafter, when instructing the jury on the specific
elements of kidnapping in the second degree, the court
read the statutory definition set forth in § 53a-94.9 The
court further instructed that, in order to find the peti-
tioner guilty of that offense, the jury must find that he
intended to abduct and restrain the victim. The court’s
instruction provided in relevant part: ‘‘A person is guilty
of kidnapping in the second degree when he abducts
another person. The first term is abduct. Abduct means
to restrain a person with intent to prevent his liberation
either by secreting or hiding him in a place where he
is not likely to be found or by using or threatening to
use physical force or intimidation. . . .
‘‘The next term to be defined is to restrain. Restrain
means to restrict a person’s moving intentionally and
unlawfully in such a manner as to interfere substantially
with his liberty by moving him from one place to another
or by confining him either in the place where the restric-
tion first begins or in a place to which he has been
moved to without consent. Without consent includes,
but is not limited to, deception.
‘‘As you can see, abduction and restraining must be
intentional. There must be an intent to interfere inten-
tionally with the victim’s liberty and an intent to prevent
the victim’s liberation by, one, secreting or hiding him
in a place where he is not likely to be found; two, by
using or threatening to use physical force or intimida-
tion. Remember my earlier instruction in regard to
intentional conduct.’’ The court repeated this proper
instruction at least two more times during its charge.
With respect to murder,10 the trial court instructed
that in order to find the petitioner guilty of that offense,
the jury must find that he specifically intended to cause
the death of the victim. The court’s instruction provided
in relevant part: ‘‘Now . . . take into account the same
instructions I have given you Friday and today on inten-
tional conduct and accessorial liability as it applies.
. . . A person is guilty of murder when, with the intent
to cause the death of another person, he causes the
death of such person.’’ The court subsequently dis-
cussed each element of the offense, stating in relevant
part: ‘‘There are two elements, each of which the state
must prove beyond a reasonable doubt in order to sus-
tain a conviction. . . . First is that the [petitioner] had
the intent to cause the death of another person. Please
bring into play my instructions in regard to the defini-
tion of intentional conduct. The second element is that
the [petitioner] or [a coconspirator] acting with that
intent to cause the death of [the victim], did shoot with
a firearm and cause the death of [the victim].’’ The court
repeated this proper instruction at least six more times
during its charge.
The court then instructed the jury on the elements
of conspiracy to commit kidnapping in the second
degree and conspiracy to commit murder, stating that
‘‘[a] person is guilty of conspiracy when, with the intent
to [engage in] conduct constituting a crime . . . he
agrees with one or more persons to engage in or cause
the performance of such conduct and any one of them
commits an overt act in pursuance of such conspiracy.’’
The court repeated this proper instruction at least six
more times during its charge.
In addition to its oral charge, the court provided the
jury with a ‘‘schematic,’’ which ‘‘list[ed] . . . the essen-
tial elements’’ and ‘‘what [was] required to be proven
beyond a reasonable doubt’’ for each charged offense.
The jury began its deliberations and, thereafter, sent
the following note to the court: ‘‘Your Honor, if possible
we would like the written definitions of the following
terms: [1] reasonable doubt; [2] intent; and [3] conspir-
acy.’’ (Emphasis in original.) In response to that note,
the court provided the jury with written instructions
regarding conspiracy, intent11 and reasonable doubt.
We now turn to the testimony elicited at the petition-
er’s habeas trial. The petitioner’s appellate counsel
explained that as an appellate attorney, she reviewed
jury instructions in their entirety, and not in isolated
portions. She also testified that she was aware that the
court improperly instructed the jury by including the
full statutory definition of intent, but believed that the
court had provided accurate instructions of the crimes
charged, specifically testifying: ‘‘When you look at . . .
the charge as a whole and specifically when the judge
charged on the specific crimes . . . he gave the intent
to cause the result. . . . He . . . referred only to that
portion of the intent instruction.’’ Appellate counsel
further testified that, although she was aware of the
DeBarros case, which was issued in 2000, three years
after the petitioner’s criminal trial, she did not raise an
instructional claim because she ‘‘felt that it would be
harmless error.’’ Similarly, the petitioner’s trial counsel
testified that he did not take exception to the court’s
instructions on intent because he did not think ‘‘they
were . . . an incorrect statement of the law,’’ and that
‘‘focus[ing] on the tenor and timbre of the entire instruc-
tion . . . [it] left no doubt as to the intent necessary
. . . .’’
The petitioner’s experts, Pattis and Taylor, both pro-
vided opinions with respect to this issue. Pattis would
not concede that ‘‘the court gave what would have been
apparent to a lawyer of ordinary skill and training at
that time an incorrect instruction,’’ but explained that,
given DeBarros, he ‘‘would have liked it as a potential
appellate issue . . . .’’ Although Pattis opined that
there was a ‘‘substantial likelihood’’ that the jury was
misled regarding the state’s burden of proof, he classi-
fied the petitioner’s case as ‘‘somewhere between
DeBarros . . . and the cases where the court held it
was not pervasive.’’
Taylor testified that in a murder case his practice
was to raise any good faith issue because the stakes
are so high. Taylor testified that ‘‘the trial court very
clearly at one point gave the wrong instruction on
intent, including a broader intent aspect than is permis-
sible with respect to these specific intent crimes, but
the court repeatedly gave a specific intent charge as
well, and when you take the charge as a whole, [he
thought] it would be very unlikely that you would con-
vince an appellate court that the jury was misled by
the charge.’’12 Taylor nevertheless opined that appellate
counsel’s failure to raise this claim constituted ineffec-
tive assistance.
The habeas court, in its memorandum of decision,
stated that: ‘‘[Appellate counsel] had considered and
declined to press this issue in the petitioner’s appeal.
She recognized that the trial judge lacked the benefit
of [this court’s] wisdom because [State v. DeBarros,
supra, 58 Conn. App. 673] arose three years posttrial.
[Appellate counsel] was also aware that our appellate
tribunals have seldom reversed convictions based on
this particular error since that case was decided. . . .
‘‘In the petitioner’s case, the trial judge correctly
informed the jurors of the specific intent that the prose-
cution need[ed] to prove, beyond a reasonable doubt,
when he instructed on each crime individually. [Appel-
late counsel] reasonably opined that this claim was
unlikely to succeed, and she devoted her limited brief
pages and argument to more meritorious issues. The
court finds that this professional decision came within
the wide boundaries of acceptable legal representation.
Therefore, the petitioner has failed to satisfy his burden
of proving, by a preponderance of the evidence, that
his appellate lawyer rendered ineffective assistance as
to this specification of deficient performance.’’ (Cita-
tion omitted.)
With the foregoing facts in mind, we now address
the habeas court’s conclusion that appellate counsel
did not render deficient performance by failing to raise
this instructional claim on appeal. The petitioner con-
tends that his case ‘‘presents a greater danger of a
misled jury than . . . DeBarros.’’ In DeBarros, the trial
court, during its initial instructions, charged the jury
on the elements of murder as follows: ‘‘There are two
elements that the state has to prove . . . beyond a
reasonable doubt. . . . The first element is that the
defendant had the intent to cause the death of another
person. Our statutes and law [are] that a person acts
intentionally with respect to a result or to conduct
described by a statute defining an offense when his
conscious objective is to cause such result or to engage
in such conduct.’’ (Internal quotation marks omitted.)
State v. DeBarros, supra, 58 Conn. App. 683–84. Addi-
tionally, the court, while instructing the jury on other
crimes, referred to this definition of intent on seven
occasions. See id., 678, 683. Thereafter, during its delib-
erations, the jury requested clarification regarding
intent and attempt to commit murder. Id., 678–79. In
response, the court twice repeated the definition of
intent. Id., 679. On appeal, this court reversed the defen-
dant’s murder conviction, holding that it was reasonably
possible that the jury was misled because: (1) ‘‘the trial
court’s improper instructions were too numerous to be
rectified by [its] proper instructions,’’ and (2) ‘‘the court
read the instruction as a specific definition of the intent
required for [murder] . . . [which] likely misled the
jury to believe that to intend to cause the death of
another person means either to intend to cause the
death of that person or to intend to engage in conduct
that causes the death of that person.’’ Id., 683–84. The
court in DeBarros also noted that the trial court ‘‘did
not provide instructional handouts to the jury that
would have properly explained the element of intent.’’
Id., 684 n.15.
We are not persuaded that the petitioner’s case pre-
sents a situation analogous to that of DeBarros or those
cases in which it was reasonably possible that the jury
was misled by the trial court’s instructions. Although
similar to DeBarros in that the court in this case read,
provided, or referred to the improper instruction a total
of ten times, ‘‘[a] quantitative ‘litmus test’ measuring
how frequently a trial court gives an irrelevant instruc-
tion is . . . insufficient to establish an instruction’s
tendency to mislead the jury.’’ State v. Montanez, supra,
277 Conn. 746; see also State v. Santiago, 87 Conn. App.
754, 764, 867 A.2d 138, cert. denied, 273 Conn. 938, 875
A.2d 45 (2005). In the present case, unlike DeBarros, the
record indicates that the trial court read the improper
instruction only as a general definition of intent. The
record further indicates that the court repeatedly gave
a proper instruction as to each specific offense. More-
over, the court provided the jury with a handout that
listed the essential elements of each charged offense,
reminding them that the petitioner must have the spe-
cific intent to cause the result referred to in the statute.
After a careful review of the entire jury charge, we
cannot conclude that appellate counsel’s strategic deci-
sion not to raise the instructional error claim was unrea-
sonable. Under the facts of this case, an appellate court
may have rejected a claim that there was a reasonable
possibility that the jury was misled by the trial court’s
instructions. Accordingly, the petitioner’s claim would
have failed to satisfy Golding’s third prong because he
is unable to demonstrate that a constitutional violation
exists and deprived him of a fair trial.13 See State v.
Aviles, supra, 107 Conn. App. 229–30. The law and
record, therefore, support the habeas court’s conclu-
sion that appellate counsel made a reasonable strategic
decision in choosing to forgo a weak claim of instruc-
tional error, especially in view of other stronger claims,
including two on which the petitioner prevailed. We
conclude that the habeas court properly determined
that the petitioner failed to demonstrate that appellate
counsel rendered deficient performance with respect
to this claim.
B
We now address the petitioner’s claim that appellate
counsel provided ineffective assistance by failing to
raise claims on direct appeal that the evidence was
insufficient to prove his convictions of (1) murder as
an accessory and conspiracy to commit murder, and
(2) felony murder.
The two part test this court applies in reviewing the
sufficiency of the evidence supporting a criminal con-
viction is well established. ‘‘First, we construe the evi-
dence in the light most favorable to sustaining the
verdict. Second, we determine whether upon the facts
so construed and the inferences reasonably drawn
therefrom the jury reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Lewis, 303 Conn. 760, 767, 36
A.3d 670 (2012).
‘‘In evaluating evidence, the trier of fact is not
required to accept as dispositive those inferences that
are consistent with the [petitioner’s] innocence.’’ State
v. Delgado, 247 Conn. 616, 620, 725 A.2d 306 (1999).
‘‘[I]n viewing evidence which could yield contrary infer-
ences, the jury is not barred from drawing those infer-
ences consistent with guilt and is not required to draw
only those inferences consistent with innocence. The
rule is that the jury’s function is to draw whatever
inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical.’’
(Internal quotation marks omitted.) State v. Grant, 219
Conn. 596, 604, 594 A.2d 459 (1991). As our Supreme
Court has often noted, ‘‘proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the [petitioner] that, had it been found credible by the
trier, would have resulted in an acquittal. . . . On
appeal, we do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
jury’s verdict of guilty.’’ (Internal quotation marks omit-
ted.) State v. Aloi, 280 Conn. 824, 842, 911 A.2d 1086
(2007).
With that legal framework in mind, we turn to the
facts that our Supreme Court, in its prior decision on
the petitioner’s direct appeal, determined that the jury
reasonably could have found. ‘‘Desmond Hamilton, the
[petitioner] and the victim . . . all knew each other
and had participated in the sale of drugs together. On
May 10, 1996, on Laurel Court, a dead-end street in
Bridgeport, the [petitioner] and Hamilton had a discus-
sion concerning both money that Hamilton owed the
[petitioner] and a gun of the [petitioner’s] that he had
given to Hamilton approximately two weeks earlier.
Also present during the conversation were the victim,
and McWarren St. Julien. The [petitioner] also ques-
tioned the victim about the whereabouts of the gun.
During the conversation, the [petitioner] became upset,
began yelling and pulled out a Glock .40 handgun. Police
officers subsequently came to the location of the con-
versation, but when they arrived the [petitioner] was
no longer there. Later that night, Hamilton called the
[petitioner] to attempt to explain that he did not know
where the gun was located, and that he would never
steal from the [petitioner]. The [petitioner] told Hamil-
ton that he wanted him ‘to get everything straight.’
‘‘On the following day, May 11, 1996, Hamilton again
called the [petitioner], who told Hamilton that he was
going to meet Hamilton . . . and that the two men
would go together to find the victim to learn what had
happened to the gun. Later that evening, the [petitioner]
picked up Hamilton and they proceeded to 244 Olive
Street in Bridgeport, where Hamilton [and] the victim
. . . lived. At 244 Olive Street, the [petitioner], the vic-
tim, St. Julien [and] Hamilton . . . were on the front
porch of the house. There the [petitioner] asked the
victim about the whereabouts of his gun that had been
the topic of the May 10 discussion. At or about the same
time, Rodolphe St. Victor arrived at the house. The
[petitioner] and St. Julien then left the porch as St.
Victor forcibly pulled the victim off the porch. As the
[petitioner] and St. Julien proceeded to enter a blue
Oldsmobile parked in the driveway of the house, St.
Victor grabbed the victim by the sleeve and said ‘Come
on. [The petitioner] wants to talk to you.’ St. Victor
then forced the victim into the Oldsmobile, which the
[petitioner] then drove away. . . .14
‘‘Later that evening, the [petitioner], St. Julien and
St. Victor returned to 244 Olive Street in the blue Olds-
mobile. The police arrived shortly thereafter and
arrested the three occupants of the vehicle and recov-
ered a gun from it.15 The [petitioner], St. Julien and St.
Victor then were taken to the Bridgeport police station.
. . . St. Victor directed the police to Suggetts Lane,
Bridgeport, where the victim was found, conscious but
unable to speak, with a gunshot wound to the back of
his neck. The police summoned medical personnel, who
took the victim to Bridgeport Hospital, where he died.
Tests conducted on the gun recovered from the car
revealed that the bullet that killed the victim had been
fired from it. The murder weapon was a Mac-10 auto-
matic pistol modified with a shell catcher to retain spent
bullet casings and a handle to prevent shaking when
the gun was fired rapidly. This weapon belonged to the
[petitioner], and he often carried it with him.’’ (Foot-
notes added.) State v. Cator, supra, 256 Conn. 789–91.
With the foregoing facts and legal principles in mind,
we now turn to the merits of the petitioner’s claims.
1
We first address the petitioner’s claim that ‘‘appellate
counsel [rendered deficient performance] when she
failed to appeal the murder and conspiracy to commit
murder charges being submitted to the jury and the
insufficient evidence to sustain [those convictions].’’
Specifically, he contends that the state failed to prove
the element of intent required for those convictions.
The crux of the petitioner’s argument is that his convic-
tions for murder as an accessory and conspiracy to
commit murder cannot stand because they are logically
inconsistent with the trial court’s granting his motion
for a judgment of acquittal with respect to the capital
felony charge.16 The petitioner further argues that
‘‘[a]ppellate counsel’s failure to pursue this claim on
appeal was not based on reasonable strategy, but on
an ignorance of the applicable principles of law and a
misreading [of] the trial court’s decision.’’ In response,
the respondent contends that despite appellate coun-
sel’s ‘‘misperception of the law regarding capital felony,
she did not perform deficiently on this ground given its
underlying lack of merit.’’ We agree with the respondent
and, accordingly, conclude that because there was suffi-
cient evidence adduced at trial to prove that the peti-
tioner was guilty of murder as an accessory and
conspiracy to commit murder, appellate counsel acted
reasonably by not raising an insufficiency claim in the
petitioner’s direct criminal appeal.
The following legal principles are necessary to our
resolution of these claims. To establish the petitioner’s
guilt with respect to the offense of murder as an acces-
sory under §§ 53a-54a and 53a-8 (a), the state was
required to prove that: (1) a murder was committed;
see footnote 11 of this opinion; (2) the petitioner had
the intent to cause the death of the victim; see, e.g.,
State v. Otto, 305 Conn. 51, 66–67, 43 A.3d 629 (2012);
and (3) the petitioner ‘‘solicit[ed], request[ed], com-
mand[ed], importune[ed] or intentionally aid[ed]’’ in the
commission of the murder. General Statutes § 53a-8
(a). ‘‘[A] conviction under § 53a-8 requires [the state
to prove the petitioner’s] dual intent, [first], that the
accessory have the intent to aid the principal and [sec-
ond] that in so aiding he intend to commit the offense
with which he is charged.’’ (Internal quotation marks
omitted.) State v. Danforth, 315 Conn. 518, 529, 108
A.3d 1060 (2015).
The crime of conspiracy is codified at § 53a-48.17 To
establish the petitioner’s guilt with respect to this
offense, ‘‘the state must show that there was an
agreement between two or more persons to engage in
conduct constituting a crime and that the agreement
was followed by an overt act in furtherance of the
conspiracy . . . . The state must also show intent on
the part of the [petitioner] that conduct constituting a
crime be performed. . . . The existence of a formal
agreement between the parties need not be proved; it
is sufficient to show that they are knowingly engaged
in a mutual plan to do a forbidden act. . . .
‘‘Because of the secret nature of conspiracies, a con-
viction usually is based on circumstantial evidence.
. . . Consequently, it is not necessary to establish that
the [petitioner] and his coconspirators signed papers,
shook hands, or uttered the words we have an
agreement. . . . [T]he requisite agreement or confed-
eration may be inferred from proof of the separate acts
of the individuals accused as coconspirators and from
the circumstances surrounding the commission of these
acts.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Taft, 306 Conn. 749, 756–57, 51 A.3d 988
(2012); see also State v. Taylor, 177 Conn. App. 18,
31–32, 171 A.3d 1061 (2017), cert. denied, 327 Conn.
998, 176 A.3d 555 (2018).
The record indicates that the jury reasonably could
have found that: (1) The petitioner was angered by the
disappearance of a gun that he had lent to Hamilton;
(2) St. Victor forced the victim into the petitioner’s
vehicle, which the petitioner then drove away; (3) in a
sworn statement to Bridgeport police, the petitioner
admitted to picking up Johnson after leaving the vic-
tim’s residence; (4) the petitioner further stated that
‘‘[they] went for a ride . . . and [they] got to some
street and someone said stop. When [he] stopped . . .
[the victim and Johnson] got out’’; (5) the petitioner
heard one gunshot and Johnson got back into the vehi-
cle holding a ‘‘little mini uzzi’’; (6) the petitioner then
returned to the victim’s residence where he, St. Julien
and St. Victor were apprehended by police; (7) Johnson
exited the petitioner’s vehicle and entered the resi-
dence; and (8) ballistics testing revealed that the victim
was fatally shot in the back of the neck with the petition-
er’s Mac-10, which was recovered from the vehicle.
Viewing the evidence in the light most favorable to
sustaining the verdict, we conclude that there was suffi-
cient evidence to prove that the petitioner was guilty
of murder as an accessory and conspiracy to commit
murder. Accordingly, the habeas court properly denied
this claim because the petitioner failed to demonstrate
that his appellate counsel rendered deficient perfor-
mance by failing to challenge the sufficiency of the
evidence supporting these convictions.
2
We next address the petitioner’s claim that appellate
counsel rendered deficient performance by failing to
raise a claim of insufficient evidence with respect to
the charge of felony murder. Specifically, the petitioner
argues that the evidence adduced at trial failed to estab-
lish that Johnson, the victim’s alleged shooter, was a
participant in the kidnapping of the victim, or shot the
victim in furtherance of the kidnapping. The respon-
dent, in turn, argues that, ‘‘[v]iewing the evidence in
the manner most supportive of the jury’s verdict . . .
the jury may reasonably have found a relationship
between the ongoing abduction of the victim and the
ultimate homicide beyond that of mere causation.’’ We
agree with the respondent.
The crime of felony murder is codified at § 53a-54c.18
‘‘In order to obtain a conviction for felony murder the
state must prove, beyond a reasonable doubt, all the
elements of the statutorily designated underlying felony
[in this case, kidnapping in the second degree] and in
addition, that a death was caused in the course of and
in furtherance of that felony. . . . There is no require-
ment that the state prove an intent to cause death.’’
(Internal quotation marks omitted.) Ramos v. Commis-
sioner of Correction, 172 Conn. App. 282, 318, 159 A.3d
1174, cert. denied, 327 Conn. 904, 170 A.3d 1 (2017).
‘‘Kidnapping is a continuing crime. . . . Because kid-
napping involves interfering with the victim’s liberty,
it continues until that liberty is restored.’’ (Citations
omitted.) State v. Gomez, 225 Conn. 347, 351, 622 A.2d
1014 (1993); see also State v. Crenshaw, 313 Conn. 69,
93, 95 A.3d 1113 (2014).
At the habeas trial, appellate counsel testified that
she did not raise this issue on appeal because there
was sufficient evidence to prove the petitioner’s guilt
with respect to felony murder. The petitioner’s experts
agreed with that position. Pattis opined that ‘‘[he did]
not see the significance of the Johnson issue because
. . . the [victim] together with the [petitioner] and
some colleagues got in a car. At some point that . . .
car picked up [Johnson]. If [Johnson] wasn’t present
when the kidnapping began, [it was] not at all apparent
to [him] that [Johnson] wasn’t recruited or didn’t come
on the scene as that continuing course of conduct
evolved and from the standpoint of [the petitioner, he
did not] see the benefit to him of Johnson being a
late arrival in an ongoing course of conduct.’’ Similarly,
Taylor opined that ‘‘[he] did not believe that . . . a
reasonable appellate attorney would be required to
raise [this] issue or risk being found to have provided
ineffective assistance.’’
Viewing the evidence in the light most favorable to
sustaining the verdict, we agree with the habeas court’s
conclusion that ‘‘[t]he jury could logically and reason-
ably infer that, during the victim’s abduction by the
petitioner, the petitioner picked up [Johnson] and sup-
plied him with the firearm used to kill the victim.’’
We therefore conclude that the habeas court properly
denied this claim because the petitioner failed to dem-
onstrate that his appellate counsel rendered deficient
performance.
III
Last, we address the petitioner’s claim that his due
process rights were violated when the trial court errone-
ously instructed the jury with respect to intent. Specifi-
cally, the petitioner claims that the habeas court
improperly concluded that this claim was procedurally
defaulted. In response, the respondent argues that the
petitioner ‘‘failed to bear his burden of proving both
good cause and actual prejudice to excuse his proce-
dural default of this claim.’’ We agree with the
respondent.
The following legal principles are necessary to our
resolution of this claim. ‘‘Our review of a determination
of the application of [the procedural default doctrine]
involves a question of law over which our review is
plenary. . . . Under the procedural default doctrine, 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, unless he can prove
that his default by failure to do so should be
excused. . . .
‘‘The cause and prejudice standard [of reviewability]
is designed to prevent full review of issues in habeas
corpus proceedings that counsel did not raise at trial
or on appeal for reasons of tactics, [inadvertence] or
ignorance . . . . In order to satisfy this standard, the
[habeas] petitioner must demonstrate both good cause
for failing to raise a claim at trial or on direct appeal
and actual prejudice from the underlying impropriety.
. . . [T]he existence of cause for a procedural default
must ordinarily turn on whether the [petitioner] can
show that some objective factor external to the defense
impeded counsel’s efforts to comply with the [s]tate’s
procedural rule. . . .
‘‘With respect to the actual prejudice prong, [t]he
habeas petitioner must show not merely that the errors
at . . . trial created the possibility of prejudice, but
that they worked to his actual and substantial disadvan-
tage, infecting his entire trial with error of constitutional
dimensions. . . . Such a showing of pervasive actual
prejudice can hardly be thought to constitute anything
other than a showing that the prisoner was denied fun-
damental fairness at trial. . . . [A] habeas petitioner’s
showing of ineffective assistance of counsel demon-
strates such actual prejudice.’’ (Citations omitted;
emphasis added and omitted; internal quotation marks
omitted.) Arroyo v. Commissioner of Correction, 172
Conn. App. 442, 461–62, 160 A.3d 425, cert. denied, 326
Conn. 921, 169 A.3d 235 (2017); see generally Jackson
v. Commissioner of Correction, 227 Conn. 124, 629 A.2d
413 (1993). ‘‘Cause and prejudice must be established
conjunctively. . . . If the petitioner fails to demon-
strate either one, a trial court will not review the merits
of his habeas claim.’’ (Internal quotation marks omit-
ted.) Sinchak v. Commissioner of Correction, 173
Conn. App. 352, 366, 163 A.3d 1208, cert. denied, 327
Conn. 901, 169 A.3d 796 (2017).
As we previously concluded in part II A of this opin-
ion, the habeas court properly determined that the peti-
tioner failed to establish that his appellate counsel
rendered ineffective assistance by not raising the
instructional impropriety claim on direct appeal. The
petitioner, accordingly, has failed to satisfy the good
cause prong under the curative standard because, as
we have determined, the claim was not raised pursuant
to a reasonable strategy. We therefore conclude that
the habeas court properly determined that the petition-
er’s due process claim was subject to procedural default
and that the petitioner failed to demonstrate both good
cause and actual prejudice to excuse his procedural
default of this claim.
For the reasons set forth previously, we conclude
that the petitioner failed to establish that the issues
raised on appeal are debatable among jurists of reason,
that a court could resolve the issues in a different man-
ner or that the questions raised deserve encouragement
to proceed further. Accordingly, the habeas court did
not abuse its discretion in denying the petition for certi-
fication to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
On August 22, 2001, the petitioner filed his first petition for a writ of
habeas corpus, thereafter amended on November 23, 2003, in which he
alleged the ineffective assistance of his trial counsel and actual innocence.
See Cator v. Warden, Superior Court, judicial district of Tolland, Docket
No. CV-01-0810396-S, 2004 WL 503831 (February 25, 2004). After a trial, the
habeas court denied the petitioner’s amended petition for a writ of habeas
corpus in a written memorandum of decision and denied his petition for
certification to appeal. See id. This court subsequently dismissed the petition-
er’s appeal. See Cator v. Commissioner of Correction, 92 Conn. App. 241,
884 A.2d 447 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).
On October 30, 2006, the petitioner filed a second petition for a writ of
habeas corpus in which he requested that his right to petition for a new
trial be restored. Specifically, the petitioner sought a new trial in light of
the acquittal of Peter Johnson, who was charged with murder as principal
in connection with the victim’s death. See Cator v. Warden, Superior Court,
judicial district of Tolland, Docket No. CV-06-4001410-S, 2009 WL 765395
(February 19, 2009). After a trial, the habeas court denied the petitioner’s
petition for a writ of habeas corpus and petition for certification to appeal.
On November 2, 2010, the petitioner filed his third petition for a writ of
habeas corpus, thereafter amended on November 13, 2012, in which he
alleged the ineffective assistance of his second habeas counsel. See Cator
v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-10-
4003845-S. That petition was withdrawn on March 21, 2013. See id.
The petitioner filed his fifth petition for a writ of habeas corpus on June
12, 2017. See Cator v. Commissioner of Correction, Superior Court, judicial
district of Tolland, Docket No. CV-17-4008872-S (June 12, 2017). That action
remains pending before the habeas court.
2
We note that the petitioner’s direct appeal occurred prior to our Supreme
Court’s decision in State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), in
which it held that ‘‘when the trial court provides counsel with a copy of
the proposed jury instructions, allows a meaningful opportunity for their
review, solicits comments from counsel regarding changes or modifications
and counsel affirmatively accepts the instructions proposed or given, the
defendant may be deemed to have knowledge of any potential flaws therein
and to have waived implicitly the constitutional right to challenge the instruc-
tions on direct appeal.’’ Id., 482–83; see also State v. Bellamy, 323 Conn.
400, 147 A.3d 655 (2016).
3
‘‘The plain error doctrine is based on Practice Book § 60-5, which pro-
vides in relevant part: The court shall not be bound to consider a claim
unless it was distinctly raised at the trial or arose subsequent to the trial.
The court may in the interests of justice notice plain error not brought to
the attention of the trial court. . . . The plain error doctrine is reserved
for truly extraordinary situations [in which] the existence of the error is so
obvious that it affects the fairness and integrity of and public confidence
in the judicial proceedings. . . . A party cannot prevail under [the] plain
error [doctrine] unless [he] has demonstrated that the failure to grant relief
will result in manifest injustice.’’ (Internal quotation marks omitted.) State
v. Vega, 128 Conn. App. 20, 29 n.3, 17 A.3d 1060, cert. denied, 301 Conn.
919, 21 A.3d 463 (2011).
4
See State v. Pond, 315 Conn. 451, 467–68, 108 A.3d 1083 (2015) (‘‘[c]onspir-
acy . . . is a specific intent crime, with the intent divided into two elements:
[1] the intent to agree or conspire and [2] the intent to commit the offense
which is the object of the conspiracy’’ [internal quotation marks omitted]);
State v. Franko, 142 Conn. App. 451, 460, 64 A.3d 807 (2005) (‘‘kidnapping
in the second degree . . . is a specific intent crime’’), cert. denied, 310
Conn. 901, 75 A.3d 30 (2013); State v. Rivet, 99 Conn. App. 230, 231 n.1, 912
A.2d 1103 (‘‘[m]urder is a specific intent crime’’), cert. denied, 281 Conn.
923, 918 A.2d 274 (2007).
5
See, e.g., State v. Montanez, supra, 277 Conn. 745–47; State v. Austin,
244 Conn. 226, 710 A.2d 732 (1998); State v. Prioleau, 235 Conn. 274, 322,
664 A.2d 743 (1995); Salters v. Commissioner of Correction, supra, 175
Conn. App. 821–22; Barlow v. Commissioner of Correction, 131 Conn. App.
90, 26 A.3d 123, cert. denied, 302 Conn. 937, 28 A.3d 989 (2011); Moody v.
Commissioner of Correction, 127 Conn. App. 293, 14 A.3d 408, cert. denied,
300 Conn. 943, 17 A.3d 478 (2011); State v. Young, 68 Conn. App. 10, 791
A.2d 581, cert. denied, 260 Conn. 909, 795 A.2d 547 (2002).
6
See also State v. Sivak, 84 Conn. App. 105, 112–13, 852 A.2d 812 (reason-
ably possible jury was misled by improper intent instruction that included
full statutory definition of ‘‘intentionally’’ and focused on intended conduct
rather than intended result of causing serious physical harm), cert. denied,
271 Conn. 916, 859 A.2d 573 (2004); State v. Lopes, 78 Conn. App. 264,
270–72, 826 A.2d 1238 (reasonably possible jury was misled where ‘‘improper
instruction was given in regard to the definition of murder and not solely
in the instruction dealing with the general definition of intent,’’ and this court
‘‘[did] not observe numerous proper instructions that would overshadow
the improper ‘engaging in conduct’ language’’), cert. denied, 266 Conn. 902,
832 A.2d 66 (2003).
7
The court instructed in relevant part: ‘‘Now, I defined intent [on Friday],
I will do it today because it has—it has to be present in your mind and
understanding. I want it fresh. . . .
‘‘A person acts intentionally with respect to—to a result or to conduct
described by the statute defining an offense when his conscious objective
is to cause such a result or to engage in such conduct. Intentional conduct
is purposeful conduct rather than conduct that is accidental or inadver-
tent. . . .
‘‘[A] person’s intention may be inferred from his conduct. You may infer
from the fact that an accused engaged in conduct that he intended to engage
in that conduct. An intent to cause death may be inferred from circumstantial
evidence, such as the type of weapon used, the manner in which it is used,
the type of wounds inflicted, the events leading to it, immediately following
the death.’’
8
The court further charged the jury: ‘‘[A]n accused person, acting with
the mental state required for the commission of an offense, who solicits,
requests, commands, importunes, or intentionally aids another person to
engage in conduct which constitutes an offense shall be criminally liable
for such conduct, and may be prosecuted and punished as if he were the
principal offender. If a person did any of these things specified in the statute,
he is in the eyes of the law just as guilty of the crime charged as though
he had directly committed it or directly participated in its commission; that
is, solicits, requests, commands, importunes, or intentionally aids another
person to engage in conduct which constitutes an offense.’’
9
General Statutes § 53a-94 (a) provides: ‘‘A person is guilty of kidnapping
in the second degree when he abducts another person.’’
10
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person . . . .’’
‘‘[T]he specific intent to kill is an essential element of the crime of murder.
To act intentionally, the defendant must have had the conscious objective
to cause the death of the victim. . . . Because direct evidence of the
accused’s state of mind is rarely available . . . intent is often inferred from
conduct . . . and from the cumulative effect of the circumstantial evidence
and the rational inferences drawn therefrom. . . . Intent to cause death
may be inferred from the type of weapon used, the manner in which it was
used, the type of wound inflicted and the events leading to and immediately
following the death. . . . Furthermore, it is a permissible, albeit not a neces-
sary or mandatory, inference that a defendant intended the natural conse-
quences of his voluntary conduct.’’ (Internal quotation marks omitted.) State
v. Gill, 178 Conn. App. 43, 48–49, 173 A.3d 998, cert. denied, 327 Conn. 987,
175 A.3d 44 (2017); see also State v. Otto, 305 Conn. 51, 66–67, 43 A.3d
629 (2012).
11
The court’s supplemental intent instruction provided in relevant part:
‘‘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 knowl-
edge 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.’’
12
The habeas court subsequently requested Taylor to clarify this testi-
mony, specifically asking: ‘‘On the question of . . . the overly broad intent
instruction, I want to make sure I understood what you said, that the judge
clearly gave . . . an intent definition that didn’t apply in the case, but you
also said that on the specific [charges] he gave the specific intent, which
was restricted to the proper scope. Am I getting what you said correctly?’’
Taylor replied: ‘‘Yes, Your Honor.’’
13
Likewise, because the trial court repeatedly instructed the jury as to
the intent required under the charged offenses, there is no manifest injustice
that warrants reversal pursuant to the plain error doctrine. See State v.
Jaynes, 36 Conn. App. 417, 430, 650 A.2d 1261 (1994), cert. denied, 233
Conn. 908, 658 A.2d 980 (1995).
14
After leaving 244 Olive Street, the petitioner picked up Johnson at
[Waldbaum’s] Market by James Street and ‘‘went for a ride by Stratford
Avenue . . . .’’ At some point, the petitioner stopped the vehicle and the
victim and Johnson exited and ‘‘talk[ed] for a while . . . .’’ A single gunshot
rang out and Johnson reentered the vehicle holding a ‘‘little mini uzzi.’’
15
When the blue Oldsmobile returned to 244 Olive Street, Johnson immedi-
ately ‘‘jumped out of the car and went into the house.’’ Johnson subsequently
exited the house through the back door and was not apprehended by Bridge-
port police at that time.
16
As the habeas court correctly stated in its memorandum of decision:
‘‘[T]he critical issue was not whether [the court’s] denial of the motion [for
a judgment of acquittal] as to most counts was inconsistent with [the court’s]
granting of the motion as to capital felony murder, but rather whether [the
court] correctly determined that there existed sufficient evidence to support
the other charges, despite the fact that the petitioner was not the shooter
himself.’’ (Emphasis omitted.)
The trial court’s granting of the petitioner’s motion for a judgment of
acquittal with respect to the capital felony charge does not implicate our
analysis as to the sufficiency of the evidence underlying the petitioner’s
convictions for murder and conspiracy to commit murder.
‘‘Practice Book §§ 42-40, 42-41 and 42-42 . . . govern motions for judg-
ments of acquittal. Those provisions provide, among other things, that,
‘[a]fter the close of the prosecution’s case in chief or at the close of all the
evidence, upon motion of the defendant or upon its own motion, the judicial
authority shall order the entry of a judgment of acquittal as to any principal
offense charged . . . for which the evidence would not reasonably permit
a finding of guilty.’ . . . Practice Book § 42-40. Although . . . that language
means that the trial court is obliged to grant a motion for a judgment of
acquittal should a proper circumstance present itself, the rule sheds no light
on how this court is required to review the sufficiency of the evidence
following the trial court’s denial of such a motion and a jury’s verdict of
guilty. There undoubtedly will be situations in which reasonable minds could
differ regarding whether the particular facts at the close of the state’s case
could support a verdict of guilty, but once a case is submitted to a jury,
however erroneously, and the jury returns a verdict of guilty, review of the
evidence ought to be on the basis of that evidence that was before the jury.
. . . After all, on an appeal claiming insufficiency of the evidence following
a jury’s verdict of guilty, it is the propriety of the jury’s verdict that we
are reviewing, not the propriety of the trial court’s submission of the case
to the jury.’’ (Citation omitted; emphasis added and omitted; footnotes
omitted.) State v. Perkins, 271 Conn. 218, 239–41, 856 A.2d 917 (2004).
17
General Statutes § 53a-48 provides in relevant part: ‘‘(a) A person is
guilty of conspiracy when, with intent that conduct constituting a crime be
performed, he agrees with one or more persons to engage in or cause the
performance of such conduct, and any one of them commits an overt act
in pursuance of such conspiracy. . . .’’
18
General Statutes § 53a-54c provides in relevant part: ‘‘A person is guilty
of murder, when acting either alone or with one or more persons, such
person commits or attempts to commit . . . kidnapping . . . and, in the
course of and in furtherance of such crime or of flight therefrom, such
person, or another participant, if any, causes the death of a person other
than one of the participants . . . .’’