Darryl W. v. Commissioner of Correction ( 2017 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
DARRYL W. v. COMMISSIONER
OF CORRECTION
(AC 38410)
Prescott, Beach and Mihalakos, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming, inter alia, that his
trial counsel provided ineffective assistance by failing to file a request
to charge the jury or to object to the trial court’s jury instruction on
the operability of a firearm, and failing to direct the trial court in its
response to an inquiry from the jury concerning operability. The habeas
court rendered judgment denying the petition, from which the petitioner,
on the granting of certification, appealed to this court. Held:
1. The habeas court properly determined that the petitioner failed to establish
that his trial counsel was ineffective in failing to file a request to charge
the jury or to object to the trial court’s jury instruction on operability,
the petitioner having failed to demonstrate that he was prejudiced by
trial counsel’s performance; no evidence was presented at the habeas
trial as to what specific request to charge trial counsel should have
submitted to the court, and, in the absence of any evidence as to the
language of an instruction that should have been submitted by trial
counsel, it could not be determined whether that particular instruction
would have likely changed the outcome of the trial.
2. The habeas court properly determined that the petitioner’s trial counsel
was not ineffective for failing to direct the trial court in its response to
the jury’s inquiry on operability; trial counsel made clear his position
on how to address the inquiry on operability, but the trial court disagreed,
choosing to take a more cautious approach, and, therefore, the habeas
court properly determined that the trial counsel’s performance did not
fall below an objective standard of reasonableness.
Argued May 23—officially released October 24, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Oliver, J., denied the petition-
er’s motion for summary judgment; thereafter, the mat-
ter was tried to the court; judgment denying the petition,
from which the petitioner, on the granting of certifica-
tion, appealed to this court. Affirmed.
Craig A. Sullivan, assigned counsel, for the appel-
lant (petitioner).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Marc Ramia, assistant state’s attorney,
for the appellee (respondent).
Opinion
MIHALAKOS, J. The petitioner, Darryl W.,1 appeals
from the judgment of the habeas court denying his
amended petition for writ of habeas corpus. On appeal,
the petitioner claims that the habeas court improperly
denied his amended petition because the record estab-
lished that his criminal trial counsel had rendered inef-
fective assistance by (1) failing to file a request to charge
the jury and/or to object to the trial court’s jury instruc-
tion and (2) failing to direct the trial court in its response
to the jury’s inquiry on operability. We conclude that
the habeas court properly determined that the peti-
tioner failed to establish his claim of ineffective assis-
tance of counsel in that he failed to establish that he
was prejudiced by counsel’s failure to file a request to
charge the jury and/or to object to the jury instruction
and that counsel performed deficiently by failing to
direct the trial court in its response to the jury’s inquiry.
Accordingly, we affirm the judgment of the habeas
court.
The record discloses the following facts. In the under-
lying criminal matter of State v. Darryl W., the petitioner
was charged with kidnapping in the first degree with
a firearm in violation of General Statutes § 53a-92a,
attempted aggravated sexual assault in the first degree
in violation of General Statutes §§ 53a-49 (a) (2) and
53a-70a (a) (1), and sexual assault in the third degree
in violation of General Statutes § 53a-72a (a) (1) (B).
After a trial by jury, he was found guilty of all three
counts. In the petitioner’s direct appeal, our Supreme
Court affirmed the judgment.
In its opinion, our Supreme Court set forth the factual
background as follows: ‘‘The [petitioner was] married
to the sister of the victim, D. Following the loss of her
house due to foreclosure, D, along with her husband
and two children, resided with the [petitioner], his wife
and their four children for several months. D and her
family then moved out of the [petitioner’s] house to
live with her parents and subsequently began looking
for a house to buy. On the day of the incident, the
[petitioner] tricked D, whom he had offered to help
find a house, into meeting him alone at a commuter
parking lot in Waterbury and driving with him to his
house. When they arrived, the [petitioner] asked D to
help carry a box into the house. Once inside, he held
D at gunpoint, handcuffed her and brought her to a
bedroom. There, he removed her pants, placed duct
tape over her mouth, kissed her breasts, touched her
vagina, briefly tied her feet to a bed, removed his pants
and climbed on top of her. The [petitioner] stopped
short of intercourse, saying he ‘couldn’t do this,’ and
subsequently agreed to let D leave after she brought
him back to his vehicle in the commuter lot.
‘‘The gun that the [petitioner] used was an air pistol
that the police later seized in a search of a vehicle
belonging to the [petitioner]. The pistol was designed
to shoot BBs propelled by compressed carbon dioxide,
or CO2. At the time the police seized it, the pistol con-
tained neither BBs nor a CO2 cartridge, but a later test
confirmed that it was capable of firing when equipped
with BBs and a cartridge.
‘‘At trial, the [petitioner] testified that he and D had
previous romantic encounters and that on the day in
question they engaged in consensual intimate activity
but stopped after deciding that doing so was wrong.
The defendant also sought to show that the seized air
pistol was not on his person at the time of the incident
but had in fact been stored in his vehicle for several
months. In the alternative, for purposes of the charge
of kidnapping in the first degree with a firearm, he
asserted an affirmative defense that, even if he had
been armed with the air pistol, it was inoperable.
‘‘Pursuant to the amended information that the state
filed after the close of its case, the trial court instructed
the jury that it did not need to find that the [petitioner]
actually possessed an operable pistol to convict him on
the kidnapping and aggravated sexual assault charges,
which required only that he represented by words or
conduct that he possessed such a weapon. The court
further instructed the jury, pursuant to the [petitioner’s]
affirmative defense, that it should acquit him of the
kidnapping charge if it found that he proved that the
air pistol was not operable. The jury returned a verdict
convicting the [petitioner] on all counts.’’ (Footnote
omitted). State v. Darryl W., 303 Conn. 353, 357–59, 33
A.3d 239 (2012).
After his unsuccessful appeal, the petitioner brought
this amended petition for writ of habeas corpus, claim-
ing, inter alia, that his trial counsel, Mark Ouellette,
was ineffective because he failed to file a request to
charge the jury and/or to object to the trial court’s jury
instruction and because he failed to direct the court in
its response to the jury’s inquiry on operability.2 By its
oral decision on August 4, 2015, the habeas court denied
the amended petition. On August 17, 2015, the habeas
court granted the petitioner’s petition for certification
to appeal from its judgment. This appeal followed. Addi-
tional facts will be set forth as necessary.
We first set forth our standard of review and the
relevant law governing ineffective assistance of counsel
claims. ‘‘The habeas court is afforded broad discretion
in making its factual findings, and those findings will
not be disturbed unless they are clearly erroneous. . . .
The application of the habeas court’s factual findings
to the pertinent legal standard, however, presents a
mixed question of law and fact, which is subject to
plenary review. . . .
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. Strickland v. Wash-
ington, [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 arti-
cle first, § 8, of the Connecticut constitution. . . . As
enunciated in Strickland v. Washington, supra, [687],
this court has stated: It is axiomatic that the right to
counsel is the right to the effective assistance of coun-
sel. . . . A claim of ineffective assistance of counsel
consists of two components: a performance prong and
a prejudice prong. To satisfy the performance prong
. . . the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . To
satisfy the prejudice prong, a claimant must demon-
strate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. . . . The claim
will succeed only if both prongs are satisfied.’’ (Internal
quotation marks omitted.) Gaines v. Commissioner of
Correction, 125 Conn. App. 97, 105, 7 A.3d 395 (2010),
aff’d, 306 Conn. 664, 51 A.3d 948 (2012).
I
The petitioner first claims that trial counsel rendered
ineffective assistance by failing to file a request to
charge the jury on the operability of the firearm and/
or failing to object to the trial court’s jury instruction.
Specifically, the petitioner argues that trial counsel
should have requested a charge that the jury should
not find the petitioner guilty of kidnapping in the first
degree with a firearm if it finds that the pistol was, at
the time of the crime, one from which a shot could not
be discharged and that the petitioner did not have the
means to make the pistol capable of discharging a shot.
In addition, the petitioner argues that trial counsel
should have requested a charge that the jury could not
find the petitioner guilty of attempted aggravated sexual
assault in the first degree unless it found sufficient
evidence to prove, beyond a reasonable doubt, that the
pistol was, at the time of the crime, one from which a
shot could be discharged, or it found that the pistol
was not one from which a shot could be discharged,
but that the petitioner had under his control the means
to make the pistol capable of discharging a shot.3 We
are not persuaded.
The habeas court was presented with evidence of the
following additional facts. At the close of evidence,
but prior to the charging conference, the trial court
provided a copy of its drafted jury charge to trial counsel
and the prosecutor. The court asked counsel to be pre-
pared to comment on the instructions and to discuss
any concerns they may have. The following day, the
court stated that it was willing to hear any requests that
either counsel wanted to make regarding the charge.
In response, trial counsel for the petitioner stated: ‘‘I
have no changes as it was presented this morning.’’ The
court then noted that it had included in its charge the
affirmative defense that the petitioner had requested.
On the charge of kidnapping in the first degree with
a firearm, the court instructed the jury in relevant part:
‘‘The third essential element is that during the abduction
the [petitioner] represented by his words or conduct
that he possessed a pistol. A pistol is defined by statute
as ‘any firearm having a barrel less than twelve inches.’
A firearm is defined by statute to mean in relevant part
‘a weapon, whether loaded or unloaded, from which
a shot may be discharged.’ Represented by words or
conduct means that ‘the [petitioner] did or said some-
thing to indicate to the [victim] that he possessed a
pistol.’ It is not necessary that the state prove that the
[petitioner] actually possessed such a weapon or that
the weapon was actually capable of discharging a shot.
‘‘With respect to this charge, the [petitioner] has
asserted an affirmative defense under [General Statutes
§ 53-16a] that any pistol displayed by him was not a
weapon from which a shot could be discharged. [Sec-
tion 53-16a] provides in relevant part that it shall be an
affirmative defense that the pistol was not a weapon
from which a shot could be discharged. In this case,
such an affirmative defense, if proven, is a complete
bar to a conviction for the offense of kidnapping in the
first degree with a firearm. . . . If you find that the
[petitioner] has proved by a preponderance of the evi-
dence that the pistol was not a weapon from which a
shot could be discharged, then you must find him not
guilty on the offense of kidnapping in the first degree
with a firearm under count one of the information.’’
(Emphasis omitted.)
On the charge of aggravated sexual assault in the
first degree, the trial court instructed the jury in relevant
part: ‘‘The third essential element which the state must
prove beyond a reasonable doubt is that the [petitioner],
while attempting to commit the sexual assault, repre-
sented by words or conduct that he possessed a deadly
weapon. For purposes of this case, the term deadly
weapon means ‘any weapon, whether loaded or
unloaded, from which a shot may be discharged.’ Repre-
sented by words or conduct means that ‘the defendant
did or said something to indicate to the [victim] that
he had a deadly weapon in his possession.’ It is not
necessary that the state prove that the [petitioner] actu-
ally possessed such a weapon or that the weapon was
actually capable of discharging a shot.’’ (Emphasis
omitted.)
At the habeas trial, trial counsel testified that, during
the criminal trial, he submitted a request to charge,
which included a request for the affirmative defense.
He further testified that, at the subsequent charging
conference, he agreed to the charges suggested by the
court. Christopher Duby, an attorney qualified as an
expert in criminal defense matters in state court, testi-
fied that the proper way to preserve an instructional
issue for appeal was to file a request to charge or to
object to the trial court’s charge. He further testified
that trial counsel had acquiesced to the jury charge
proposed by the court.
Following the close of evidence at the habeas trial,
the court denied the amended petition for writ of habeas
corpus on the ground that trial counsel did not provide
ineffective assistance. The court concluded that ‘‘[t]he
testimony at trial from . . . Ouellette indicated that he
did indeed file his own jury charge. Assuming that this
was not the case, however, the court finds no deficient
performance in that the state, the judge, and trial coun-
sel met prior to trial and agreed on the jury charge.
Additionally, there’s nothing in the jury charge that this
court finds establishes prejudice to the [defendant’s]
case.’’ We agree with the habeas court and conclude
that the petitioner has failed to demonstrate that trial
counsel provided ineffective assistance.
‘‘[A] court need not determine whether counsel’s per-
formance was deficient before examining the prejudice
suffered by the [petitioner] as a result of the alleged
deficiencies. The object of an ineffectiveness claim is
not to grade counsel’s performance. If it is easier to
dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be
followed.’’ (Internal quotation marks omitted.) Smith
v. Commissioner of Correction, 141 Conn. App. 626,
632, 62 A.3d 554, cert. denied. 308 Conn. 947, 67 A.3d
290 (2013).
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . When a [petitioner] chal-
lenges a conviction, the question is whether there is
a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respect-
ing guilt.’’ (Internal quotation marks omitted.) Hickey
v. Commissioner of Correction, 162 Conn. App. 505,
519, 133 A.3d 489, cert. granted, 323 Conn. 914, 149 A.3d
498 (2016).
In the present case, the petitioner has failed to dem-
onstrate that trial counsel’s performance prejudiced
him. No evidence was presented at the habeas trial as
to what specific request to charge counsel should have
submitted to the court. Although Duby presented evi-
dence from which the court could have determined that
counsel was ineffective, specifically that counsel did
not submit his own charge to the jury and did not object
to the court’s proposed jury charge, he did not testify
as to what instruction should have been requested by
counsel. In the absence of any evidence as to the lan-
guage of an instruction that should have been submitted
by counsel, we have no way of determining whether
that particular instruction would have likely changed
the outcome of trial. See Taylor v. Commissioner of
Correction, 324 Conn. 631, 650–52, 153 A.3d 1264 (2017)
(petitioner failed to present evidence that, had he
requested charge to jury, court would have adopted
suggestion or that adoption of such charge would have
established reasonable probability that petitioner
would not have been convicted of murder). Conse-
quently, we conclude that there can be no finding of
prejudice as to trial counsel’s failure to file a request
to charge the jury and/or to object to the trial court’s
jury instruction.
II
The petitioner next claims that his trial counsel ren-
dered ineffective assistance by failing to direct the court
in its response to the jury’s inquiry on the operability
of the pistol. Specifically, the petitioner argues that it
was imperative for his trial counsel to request that the
court clarify the issue of operability by including in its
answer that if the jury found that, at the time of the
crime, the pistol was incapable of firing a shot because
of a missing necessary component, the pistol should
have been considered inoperable unless the jury also
found that the petitioner had under his control the
means by which to replace the missing component. We
are not persuaded.
The habeas court was presented with evidence of the
following additional facts. During deliberations, the jury
sent a note that read, ‘‘Does the gun need to be theoreti-
cally operable or actually operable at the time the crime
was committed?’’ The court, trial counsel, and the pros-
ecutor engaged in a lengthy discussion as to how to best
answer the question. The following exchange occurred
between the court and counsel during this discussion:
‘‘The Court: Does counsel want to be heard on how
I should answer that question? . . .
‘‘The Court: What’s your view [Ouellette]?
‘‘[Ouellette]: Well, I just think my—my opinion is
certainly known to the Court.
‘‘The Court: Well, but how would you—I mean it is
and it isn’t. I mean, how would you . . . have me
answer this question?
‘‘[Ouellette]: I think you could . . . answer that ques-
tion that it is—what did they say, theoretically—
‘‘The Court: Operable or—
‘‘[Ouellette]: —and actually?
‘‘The Court: —actually operable at the time the crime
was committed.
‘‘[Ouellette]: I think you would have to answer the
question in my opinion, no, to both of those.
‘‘The Court: No to both. How so?
‘‘[Ouellette]: Well, because it’s not—at the time of
the commission if it was actually operable it didn’t have
BBs in it and it didn’t have a cartridge in it, so you
couldn’t actually operate it. Theoretically was it opera-
ble? Well, I guess if you believe Officer Rainone’s philos-
ophy he said [mechanically] it could . . . operate, it
was mechanical but it couldn’t fire a BB in the condition
it was in, so—
‘‘The Court: Well, the—and I know . . . you argued
this to the jury but frankly I think you were wrong in
terms of—whether there was a BB in it or not is—is
irrelevant under the statute. The statute says whether
loaded or unloaded. Okay. So even if there’s no BB in
the gun, it’s still capable of firing a shot under the
language of the statute.
‘‘[Ouellette]: Okay.
‘‘The Court: So loaded or unloaded for purposes of
this is really—it doesn’t matter under the statute
because it says whether loaded or unloaded. So . . .
this is one tough question, frankly, because I don’t want
to . . . mislead them in any way. And . . . the statute
. . . doesn’t give me any guidance on this question.
. . . So I’m reluctant to say too much is the dilemma
that I have. I guess the question that I would have for
both counsel, should the response—
‘‘[The Prosecutor]: Your Honor, I think almost—it
seems to me . . . that they’re . . . using the phrase
theoretically and actually and I think . . . if it had a
cartridge and a BB in it would it work or is it—that
would be actually operable or theoretically operable.
. . . I think the answer to both questions is yes, now
that I’ve thought about it.
‘‘The Court: That [it] has to be both? . . .
‘‘[The Prosecutor]: . . . I think the answer is—the
answer to both is yes. That’s what the law says . . .
either actually or theoretically operable.
‘‘[Ouellette]: But the key thing I think there, Judge,
is at the time they . . . put that in there specifically.
Right? Which I guess—
‘‘The Court: At the time the crime was committed, yes.
‘‘[Ouellette]: So I guess . . . that’s the time that we’re
talking about, would we—
‘‘The Court: But that is the time that’s . . . at issue
here . . . is whether at the time that the crime was
committed, whether it was capable of firing . . . a
shot. . . . I’m inclined [to] be—because I’m—because
of my concern with—I’m really not sure of what they
mean by theoretically operable or actually operable, so
I’m . . . a little concerned with directly answering the
question because . . . I’m not quite sure how they’re
defining those two terms and my fear is if I . . . say
yes to one, not to the other, or yes to both, or no to
both they may have an interpretation of those terms
that are unknown to be and—and problematic. . . .
[T]hat’s part of my problem. I mean . . . the three of
us aren’t even sure what . . . is meant by those . . .
terms. . . .
‘‘The Court: . . . [W]hat I’m considering doing . . .
I mean one option is to simply cite for them, you know,
the statute. I mean that’s certainly the easy way out,
whether loaded or unloaded, capable of firing a shot.
And I can tell them that’s . . . as much guidance as I
can give them . . . .
‘‘The Court: . . . My concern with . . . just saying
actually operable is that the . . . legislature has indi-
cated that it’s not just actually operable because they’ve
decided you don’t have to have any ammunition in the
gun to make it operable. . . . [W]hat’s someone’s nor-
mal view is of operable, which is there’s a bullet in the
chamber, it’s ready to go. I can shoot it and . . . a
bullet’s going to come out or a BB’s going to come out.
Well, that’s not what the legislature said because they
said even if it’s not loaded, it can be capable of firing
a shot, or you look at it whether it’s capable of firing
a shot even if it’s not loaded. And one of the issues in
this case, which is a little unclear, which I think is what
they have to try and figure out is I think a reasonable
position for them to take here, based on the evidence
and based on the testimony—now I’m not saying they’re
going to find this, but I think they could. And I think—
this is what I believe [the prosecutor] argued to them,
is you put the canister in, it’s part of loading it. You
put in the BB, you put in the canister and then you fire
it. And that’s really all part of the loading process, so
not having that there doesn’t make it not capable of
firing a shot. And that’s a reasonable interpretation
under the facts here. I understand [Ouellette’s] position
and also reasonable and one that they could accept,
which is, if you don’t have that canister there, that’s
part of the mechanism for firing this weapon and . . .
there’s no evidence that it was ever there that means
that it’s not capable. That, to me, is a factual determina-
tion for the jury to decide . . . . I think under the . . .
facts as presented here, it’s factual and, so, I’m a little
bit hesitant about defining theoretical or actual because
I don’t want to take a position one way or another on
that factual question and appear to be leading them
towards a verdict, which would certainly be inappropri-
ate here. . . . Does anybody want to be heard any
further?
‘‘[The Prosecutor]: No. . . .
‘‘[Ouellette]: No, Your Honor. . . .
‘‘The Court: I guess I’m inclined at this point . . . to
tell them that I can’t answer their question directly
. . . . I think at this point, all I’m inclined to do is
reread for them the definition of a firearm that it’s a
weapon, whether loaded or unloaded, is capable of
firing a shot, ask them to continue to deliberate . . . .
[I]f there [are] any additional questions they have in
this area, they’re free to ask them. . . . Anybody want
to be heard on that?
‘‘[The Prosecutor]: [The] [s]tate will live with that.
. . .
‘‘[Ouellette]: Your Honor, I guess, the only . . . other
thing I would suggest is if the court was going to give
them that instruction that that’s the definition that they
keep, that they use that definition in the context of it
and in addition to the arguments that were made. I
mean, I think you can take that as a matter of law, they
still have to use the facts of the case to decide whether
or not the arguments fit into the law that you’re giving
them to look at so . . .
‘‘The Court: Yes, so I—what’s your position at this
point as to what I should do?
‘‘[Ouellette]: . . . I think I agree with Your Honor,
that you’re limited in what you can give them based
upon . . . the statute . . .
‘‘[Ouellette]: The statutory language . . . that you
were suggesting is what I’m talking about.
‘‘The Court: Right. And you’re in agreement with that?
‘‘[Ouellette]: Well, no, I—
‘‘The Court: Oh
‘‘[Ouellette]: I’m thinking that by then getting that
vanilla boilerplate definition that they’re gonna just look
at that . . . and not take it in the context that they
maybe would have, having that definition and hearing
the argument . . . .
‘‘The Court: Yes, but all of this is in the context of
obviously the evidence and . . . they know that and
that’s clear from my instructions. And they’re just trying
to apply the law to . . . the facts and . . . they’re ask-
ing for additional clarification on . . . the law and
they’re asking . . . in a way that I’m not comfortable
giving now and I think it would . . . cause more prob-
lems than it would answer. . . . I don’t think I can
answer this question. And, so, I am just going to simply
give them the statutory definition but . . . tell them if
they have additional questions and they want to present
them to me . . . after they’ve discussed it some more,
then they’re certainly free to do that. And if they put
it in a different way that . . . I can answer it more
directly, I’m certainly willing to do that.’’
The jury then returned to the court room, and the
trial court provided the following instruction: ‘‘Ladies
and gentlemen . . . I want to discuss the question . . .
that you gave me. . . . I cannot directly answer your
question and I apologize for that, but I’m just not able
to do that. What I do want to do, though, is repeat for
you what . . . I’ve told you already, what’s in the
charge, that I think bears upon this question, which is
that the statute defines firearm, a pistol is a firearm,
having a barrel less than [twelve] inches. And a firearm
is defined by statute . . . as any weapon, whether
loaded or unloaded . . . from which a shot may be
discharged. So it’s any weapon, whether loaded or
unloaded, from which a shot may be discharged. So
that’s the best I can do in response to your question.’’
The jury sought no further guidance on the issue of oper-
ability.
At the habeas trial, trial counsel testified that, during
deliberations, the jury sent a note that asked whether
the pistol had to be theoretically or actually operable
at the time of the crime. He further testified that he,
the prosecutor, and the court did not know what the
jury meant by the phrase ‘‘theoretically operable,’’ and
that he discussed with the court how to interpret the
question and address the jury. Trial counsel recalled
that the court proposed that it reread to the jury the
statutory definition for a firearm, to which he objected.
When the court ultimately decided to reread the statu-
tory definition of a firearm, trial counsel did not object
further. Duby opined that he did not know if he ‘‘could
fault [trial counsel] for [not asking for additional lan-
guage or some other charge] mainly for the fact that
[Duby didn’t] know what that note meant. . . . [T]he
safest course of action for the court at least was to do
what the court did in [this] instance.’’
Following the close of evidence at the habeas trial,
the court denied the amended petition for writ of habeas
corpus on the ground that trial counsel’s failure to direct
the court in its response to the jury’s inquiry did not
render trial counsel’s performance deficient. The court
concluded that there was ‘‘no deficient performance,
in that, upon a review of the court’s actions, there was
nothing improper in the court’s repetition of the rele-
vant portion of the jury charge.’’
To satisfy the performance prong of an ineffective
assistance of counsel claim, ‘‘the petitioner must show
that [trial counsel’s] representation fell below an objec-
tive standard of reasonableness . . . . In other words,
the petitioner must demonstrate that [trial counsel’s]
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . In
analyzing [trial counsel’s] performance, we indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance
. . . . The petitioner bears the burden of overcoming
this presumption.’’ (Citations omitted; internal quota-
tion marks omitted.) Ledbetter v. Commissioner of Cor-
rection, 275 Conn. 451, 460, 880 A.2d 160 (2005), cert.
denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126
S. Ct. 1368, 164 L.Ed.2d 77 (2006).
In the present case, the trial court, after reviewing
the jury’s inquiry, expressed its confusion about the use
of the word ‘‘theoretically’’ and asked counsel for their
opinion on the proper way to answer the question. The
court suggested it merely reread the statutory definition
of a firearm. Trial counsel expressed his disagreement
with such a response, and engaged the court in a discus-
sion about his concerns. In this discussion, trial counsel
made clear his position that the absence of the CO2
cartridge made the pistol inoperable. The court, how-
ever, determined that providing the jury with informa-
tion on what makes the pistol operable could lead to
the court’s invading the fact-finding function of the jury.
That is, whether a firearm is operable is a question of
fact for the jury to decide; see State v. Bradley, 39 Conn.
App. 82, 91, 663 A.2d 1100 (1995), cert. denied, 236
Conn. 901, 670 A.2d 322 (1996); and defining a pistol
as inoperable for lack of a component infringes upon
the role of the jury. Although the court has a duty to
adequately address a jury’s inquiry for clarification;
State v. Fletcher, 10 Conn. App. 697, 701–702, 525 A.2d
535 (1987), aff’d, 207 Conn. 191, 540 A.2d 370 (1988);
it is not required to broaden the scope of the jury’s
inquiry, nor is it required to give additional instructions.
Practice Book § 42-27; State v. Stavrakis, 88 Conn. App.
371, 387–88, 869 A.2d 686, cert. denied, 273 Conn. 939,
875 A.2d 45 (2005). In rereading the definition of a
firearm to the jury, the court simultaneously brought
to the jury’s attention the relevant portion of the charge
that it thought may bring clarity to the jury and avoided
potentially guiding the jury in its finding on operability.
Thus, the petitioner’s claim that trial counsel failed to
direct the court in its response to the jury’s inquiry
did not amount to deficient performance because trial
counsel made clear his position on how to address the
inquiry on operability, and the court disagreed, choos-
ing to take a more cautious approach.
Accordingly, we conclude that the habeas court prop-
erly determined that the petitioner’s trial counsel had
not performed below an objective standard of reason-
ableness. As such, the petitioner’s claim of ineffective
assistance of counsel as to the failure to direct the trial
court in its response to the jury’s inquiry fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
The petitioner raised other claims in his amended petition, and the habeas
court did not find in his favor on those allegations. Those determinations,
however, are not challenged in this appeal.
3
The petitioner has not raised a claim related to the trial court’s instruction
on sexual assault in the third degree.