Jamison v. Commissioner of Correction ( 2016 )

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KENNETH JAMISON v. COMMISSIONER
OF CORRECTION
(AC 36971)
Lavine, Alvord and Sheldon, Js.
Argued May 12—officially released August 2, 2016
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
David J. Reich, for the appellant (petitioner).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were John
C. Smriga, state’s attorney, Angela R. Macchiarulo,
senior assistant state’s attorney, and Yamini Menon,
special deputy assistant state’s attorney, for the appel-
lee (respondent).
Opinion
ALVORD, J. Following a grant of certification to
appeal by the habeas court, the petitioner, Kenneth
Jamison, appeals from the judgment of the habeas court
denying his amended petition for a writ of habeas cor-
pus. On appeal, the petitioner claims that the habeas
court improperly concluded that he was not deprived
of the effective assistance of trial counsel and appellate
counsel. Specifically, he claims that the court errone-
ously determined that (1) ‘‘there was no prejudice in
trial counsel’s failure to properly challenge the introduc-
tion of a ‘stick’ which was used by the state to prove
the element of a deadly weapon at the criminal trial,’’
and (2) ‘‘appellate counsel was ineffective for failing to
challenge the sufficiency of the ‘stick.’ ’’ We affirm the
judgment of the habeas court.
The record reveals the following relevant facts and
procedural history. Following a 1996 jury trial, the peti-
tioner was convicted of assault in the second degree
by means of a deadly weapon in violation of General
Statutes § 53a-60 (a) (2).1 The jury returned not guilty
verdicts with respect to the charges of criminal posses-
sion of a firearm in violation of General Statutes § 53a-
217 (a), and carrying a pistol without a permit in viola-
tion of General Statutes § 29-35 (a). The petitioner was
sentenced to five years incarceration, to run consecu-
tively to a sentence that he was then serving for other
nonrelated convictions. Following a direct appeal, the
judgment of conviction was affirmed by this court. State
v. Jamison, 56 Conn. App. 223, 742 A.2d 1272 (1999).
The opinion of this court set forth the following facts
that the jury reasonably could have found. ‘‘On Septem-
ber 21, 1995, Hashim Preston was in his sister’s apart-
ment in Bridgeport. Shortly after midnight, Maria Caban
knocked on the door of the apartment and was let in
by Preston. While the door was open, the [petitioner]
forced his way into the apartment and engaged Preston
in a hostile conversation about certain money matters.
At some point,2 the [petitioner] pulled out a long black
stick that had tape and a cable wire around it, and
struck Preston in the face with it five to seven times.
‘‘On October 12, 1995, several police officers exe-
cuted a search and seizure warrant at 400 Wood Avenue.
The [petitioner] was present, but told the officers that
he was a visitor to the premises. The officers seized a
gun that belonged to the [petitioner], ammunition and
an identification card that contained the [petitioner’s]
picture and the name ‘Johnny Vincent.’
‘‘On the basis of Preston’s identification, the [peti-
tioner] was arrested and a trial followed. At the close
of the state’s case, the [petitioner] moved for a judgment
of acquittal on the grounds that a state’s witness gave
conflicting versions of the incident, the police investiga-
tion was inadequate, and the search and seizure warrant
was defective. He did not claim that the evidence was
insufficient to support a guilty verdict. The trial court
denied the motion, and the jury returned a verdict of
not guilty on the counts of the information that alleged
criminal possession of a firearm . . . and carrying a
pistol without a permit . . . . The jury found the [peti-
tioner] guilty of assault in the second degree . . . .’’
(Footnotes omitted.) Id., 224–26. The petitioner’s coun-
sel during the criminal trial was Attorney Jason
Gladstone.
On direct appeal to this court, the petitioner, repre-
sented by Attorney Vicki H. Hutchinson, challenged the
sufficiency of the evidence for the conviction on the
basis of the following argument: ‘‘Preston gave the only
evidence of the assault, testifying that the [petitioner]
struck him with a gun, and the evidence showed that the
same gun was found three weeks later in an apartment
occupied by the [petitioner]. By finding the [petitioner]
not guilty of criminal possession of a firearm and car-
rying a pistol without a permit, the jury demonstrated
that it did not believe Preston’s testimony that he was
struck with a gun. Although Preston testified that the
[petitioner] also struck him with the stick that was
wrapped with tape and cable wire, it is inconceivable
that the jury believed Preston’s testimony. The [peti-
tioner] further asserts that [t]he only conclusion which
can be drawn from the verdicts is that the jury convicted
[the petitioner] based on his prior conviction of man-
slaughter. . . . Prior conviction of manslaughter is not
sufficient to convict an individual of assault in the sec-
ond degree.’’ (Internal quotation marks omitted.) Id.,
226. Because the petitioner’s claims on direct appeal
had not been raised in the trial court, this court con-
cluded that they were not reviewable and affirmed the
judgment of the trial court. Id. 227–28.
Following his unsuccessful appeal, the self-repre-
sented petitioner filed a habeas petition on May 1, 2012.
On January 15, 2014, now represented by habeas coun-
sel, the petitioner filed a three count amended petition
for a writ of habeas corpus. In count one of his amended
petition, the petitioner claimed, inter alia, that his trial
counsel rendered ineffective assistance by failing to
argue to the jury that the stick did not fall within the
statutory definition of a deadly weapon, by failing to
object to the trial court’s instruction that allowed the
jury to consider the stick to be a deadly weapon, and
by failing to object to the court’s ‘‘expanded definition’’
of a deadly weapon after the jury requested a definition
of that term. In count two of his amended petition, the
petitioner claimed, inter alia, that his appellate counsel
rendered ineffective assistance by failing to raise the
issue that ‘‘the evidence was insufficient for the court
to find that a gun was used in the assault and that the
stick met the statutory definition of a [deadly] weapon.’’
In count three of his amended petition, the petitioner
alleged prosecutorial impropriety, claiming that the
state misled the jury by introducing the stick as a
deadly weapon.
The respondent, the Commissioner of Correction,
filed his return on March 26, 2014. With respect to count
three of the amended petition, the respondent alleged
that the petitioner was procedurally defaulted because
he had failed to raise the claim of prosecutorial impro-
priety before the trial court or on direct appeal. In the
petitioner’s reply filed March 31, 2014, he claimed that
he was not procedurally defaulted because he could
demonstrate cause and prejudice.
On May 27, 2014, the court held a trial on the petition-
er’s amended petition for a writ of habeas corpus. In
addition to the submission of various exhibits, the peti-
tioner testified and called Gladstone, Hutchinson and
Richard Palombo, a senior assistant state’s attorney, as
his witnesses. The court issued its memorandum of
decision on June 9, 2014, in which it made the following
determinations: (1) the petitioner acknowledged at the
habeas trial that the state had claimed at his criminal
trial that he assaulted Preston with a stick and a gun;
(2) during the habeas trial, the petitioner recognized
the stick, submitted as an exhibit, as the object entered
into evidence at his criminal trial and identified as the
dog’s toy;3 (3) Gladstone did not object to the introduc-
tion of the stick into evidence at the criminal trial; (4)
Gladstone testified at the habeas trial that he did not
believe an objection to the introduction of the stick
into evidence would have been successful because it
had been properly authenticated; (5) the court was ‘‘not
persuaded’’ that Gladstone’s failure to object to the
introduction of the stick into evidence constituted inef-
fective assistance because there was no indication in
the trial court record that the stick was inadmissible
at the criminal trial; (6) regardless of whether any of
Gladstone’s claimed errors rose to the level of deficient
performance, the petitioner’s claim of ineffective assis-
tance failed because there was no showing of any
resulting prejudice; (7) the state had a strong case
against the petitioner, who was charged with commit-
ting the assault with either a gun or the stick; (8)
whether Preston was pistol whipped, beaten with the
stick, or both, there was ample evidence in the criminal
trial court record to support his conviction; (9) a reason-
able juror could have found the stick to be a deadly
weapon on the basis of the statutory definition and the
criminal trial court record; (10) the petitioner failed to
demonstrate that, but for any of Gladstone’s alleged
errors, there was a reasonable probability that the out-
come of his criminal trial would have been different;
(11) Hutchinson did not challenge on direct appeal
whether the evidence would allow a jury to find the
stick to be a deadly weapon; (12) Hutchinson was ‘‘not
sure’’ any such challenge would have been successful
because the jury was the ultimate fact finder; (13)
Hutchinson’s selection of the issues for appeal was a
‘‘clear strategic decision;’’ (14) Hutchinson’s failure to
argue the sufficiency of the evidence as to the stick in
the petitioner’s direct appeal was not deficient perfor-
mance, but, rather, reflected a decision to narrow the
appellate issues to those most likely to succeed; and
(15) the petitioner submitted no credible evidence of
any good cause that would justify his failure to raise
the issue of prosecutorial impropriety at the criminal
trial or on direct appeal. For those reasons, the habeas
court dismissed the third count of the petitioner’s
amended petition alleging prosecutorial impropriety on
the ground of procedural default,4 and denied the
remainder of the petitioner’s claims on the merits. This
appeal followed.
The standard of review in habeas appeals is well
settled. ‘‘In a habeas appeal, this court cannot disturb
the underlying facts found by the habeas court unless
they are clearly erroneous, but our review of whether
the facts as found by the habeas court constituted a
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary. . . .
‘‘In Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States
Supreme Court enunciated the two requirements that
must be met before a petitioner is entitled to reversal
of a conviction due to ineffective assistance of counsel.
First, the [petitioner] must show that counsel’s perfor-
mance was deficient. . . . Second, the [petitioner]
must show that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversarial process
that renders the result unreliable.’’ (Internal quotation
marks omitted.) McClam v. Commissioner of Correc-
tion, 98 Conn. App. 432, 435–36, 909 A.2d 72 (2006), cert.
denied, 281 Conn. 907, 916 A.2d 49 (2007). ‘‘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.’’ (Internal quotation marks omitted.)
Moore v. Commissioner of Correction, 119 Conn. App.
530, 535, 988 A.2d 881, cert. denied, 296 Conn. 902, 991
A.2d 1103 (2010).
‘‘In regard to the second prong, our Supreme Court
distinguished the standards of review for claims of inef-
fective trial counsel and ineffective appellate counsel.
Small v. Commissioner of Correction, 286 Conn. 707,
721–24, 946 A.2d 1203, cert. denied sub nom. Small v.
Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336
(2008). For claims of ineffective appellate counsel, the
second prong considers whether there is a reasonable
probability that, but for appellate counsel’s failure to
raise the issue on appeal, the petitioner would have
prevailed in his direct appeal, i.e., reversal of his convic-
tion or granting of a new trial. Id., 722. This requires the
reviewing court to [analyze] the merits of the underlying
claimed error in accordance with the appropriate appel-
late standard for measuring harm.’’ (Internal quotation
marks omitted.) Moore v. Commissioner of Correction,
supra, 119 Conn. App. 535.
I
We first consider the petitioner’s claim that the
habeas court improperly determined that he failed to
demonstrate any resulting prejudice with respect to
Gladstone’s alleged deficient performance in failing to
challenge the stick that was used by the state to prove
the element of a deadly weapon at the criminal trial.
The gravamen of the petitioner’s claim is that the stick
in this case was not a deadly weapon as a matter of law,
and, accordingly, that Gladstone rendered ineffective
assistance by failing to (1) object to its admission into
evidence, (2) argue to the jury that it did not meet the
statutory definition of a deadly weapon, (3) request a
jury instruction as to whether the stick constituted a
deadly weapon, and (4) object to the criminal court’s
‘‘expanded definition’’ of the term ‘‘deadly weapon’’ in
response to a jury question.
The habeas court expressly rejected the petitioner’s
argument that the stick did not constitute a deadly
weapon as a matter of law. In its memorandum of deci-
sion, the court first made the following observations
about the stick. ‘‘This court, based on visual examina-
tion, finds the stick in question to be an object approxi-
mately two feet long. The object appears to have at its
foundation a thin metal rod with a curved end at its
final four inches. The longer two-thirds of the rod are
covered with what appears to be hardened insulating
spray foam. The end of the rod appears to be heavily
wrapped in black electrical tape in the shape of a ball
to prevent its slipping from the grip of its holder. There
is an exposed area of the metal rod which this court
finds fits a human hand well. The major portion of the
object is wrapped in black electrical tape. The curved
portion of the stick is augmented with coaxial cable and
wrapped with additional electrical tape. The petitioner
testified at the habeas trial that the stick was augmented
at the end with the coaxial cable ‘to keep the dog from
biting through.’ There is approximately two feet of
exposed coaxial cable wrapped around the stick with
the metal end of the coaxial cable still attached.’’
In reviewing the petitioner’s claims, the court stated:
‘‘[T]his court will not accept the petitioner’s invitation
to usurp the fact-finding function of the jury by
attempting to assert, as a matter of law, that the stick
is not a deadly weapon. This court does find that a
reasonable juror could have found the stick to be a
deadly weapon based on the statutory definition and
the trial record. Given the evidence before the jury in
this case, including the stick as previously described
in this opinion by the court, the court finds that the
petitioner failed to show any resulting prejudice from
defense counsel’s [alleged deficient performance]
. . . .’’ (Internal quotation marks omitted.) We agree
with the habeas court.
The petitioner was convicted of assault in the second
degree by means of a deadly weapon in violation of
§ 53a-60 (a) (2). Section 53a-60 (a) provides in relevant
part: ‘‘A person is guilty of assault in the second degree
when . . . (2) with intent to cause physical injury to
another person, he causes such injury to such person
or to a third person by means of a deadly weapon or
a dangerous instrument5 other than by means of the
discharge of a firearm . . . .’’ The term deadly weapon
is defined in General Statutes § 53a-3 (6) as ‘‘any
weapon, whether loaded or unloaded, from which a
shot may be discharged, or a switchblade knife, gravity
knife, billy, blackjack, bludgeon, or metal knuckles.
. . .’’ The petitioner argues that the stick could not, as
a matter of law, be considered a deadly weapon because
it did not fit within the category of a bludgeon. The
petitioner claims that a bludgeon, by dictionary defini-
tion, must be heavy, and the stick in this case was too
light in weight to be a bludgeon.
Because the term bludgeon is not statutorily defined,
the jury would be expected to apply the common and
ordinary meaning of the word in determining whether
the stick was a bludgeon. ‘‘The rule [is] that terms in
a statute are to be assigned their ordinary meaning,
unless context dictates otherwise . . . .’’ (Internal quo-
tation marks omitted.) State v. Woods, 234 Conn. 301,
309, 662 A.2d 732 (1995); see also State v. Kalil, 314
Conn. 529, 558, 107 A.3d 343 (2014). We acknowledge
that one definition of bludgeon, as found in various
dictionaries, does include the adjective ‘‘heavy’’ or
‘‘weighted’’ in the description of the item.6 Nevertheless,
we note that not all dictionary definitions of bludgeon
describe a bludgeon as being heavy. It may be a short
stick with one thick or loaded end.7 Moreover, syn-
onyms for bludgeon routinely include the words bat,
club, stick and truncheon.8 There is not one commonly
used meaning for the term bludgeon. Many words have
varying shades of meaning, depending on the context in
which they are used, and the term bludgeon reasonably
could be described as some sort of club or stick that
is used to inflict harm. Heaviness may, but would not
necessarily, be one factor to consider.
The habeas court described the stick in this case
as follows: ‘‘The end of the rod appears to be heavily
wrapped in black electrical tape in the shape of a ball
to prevent its slipping from the grip of its holder.’’ A jury
reasonably could have found that the stick, submitted as
an exhibit and as described by the habeas court, fell
within the common and ordinary meaning of bludgeon,
as just described.9 ‘‘Our Supreme Court has noted that
[a] dictionary is nothing more than a compendium of
the various meanings and senses in which words have
been and are used in our language. A dictionary does
not define the words listed in it in the sense of stating
what the words mean universally. Rather, it sets out
the range of meanings that may apply to those words
as they are used in the English language, depending
on the various contexts of those uses. . . . As Justice
Thurgood Marshall so aptly put it: Condemned to the
use of words, we can never expect mathematical cer-
tainty from our language. . . . Thus, any word in the
English language—except for words of specialized con-
texts, such as mathematics or science—will ordinarily
have multiple meanings, depending on the context in
which it has been used.’’ (Citation omitted; internal
quotation marks omitted.) State v. Ruocco, 151 Conn.
App. 732, 752–53, 95 A.3d 573 (2014).
We decline the petitioner’s invitation to select the
most restrictive definition of the word bludgeon, or to
usurp the fact-finding function of the jury by imposing
a requirement that the stick be heavy. Accordingly, we
are not persuaded by the petitioner’s argument that the
stick in this case, as a matter of law, could not be a
bludgeon simply because it was lightweight.10
Moreover, it is of critical importance that both a gun
and the stick were argued by the state as qualifying as
deadly weapons for a conviction of assault in the second
degree.11 As found by the habeas court, and as supported
by the record in the petitioner’s criminal trial, the state
presented sufficient evidence to permit the jury to find
that the petitioner hit Preston twice on the head with
a gun and repeatedly in the face with the stick. Under
those circumstances, the jury reasonably could have
found that the petitioner used the gun as a bludgeon12
or used the stick as a bludgeon or used both the gun
and the stick as bludgeons.
It is the petitioner’s position that ‘‘it is likely that the
jury did not find that the petitioner used a firearm in
the assault, but did use the stick in the assault, and
further that the jury found that the stick was a deadly
weapon.’’ He supports that claim with the argument
that ‘‘[u]ltimately, the jury acquitted the petitioner of
the two gun counts’’ and ‘‘the discrepancy between
Preston’s and Caban’s testimony13 regarding the pres-
ence of the gun . . . .’’ In essence, the petitioner is
claiming that it would be inconsistent for the jury to
have determined that the petitioner assaulted Preston
with a gun when it found him not guilty of the charges
pertaining to firearms and that Preston’s testimony was
not credible.14 We are not persuaded.
Claims of inconsistent verdicts between a conviction
and an acquittal are not reviewable on appeal, regard-
less of whether the claims are of factual inconsistency,
legal inconsistency or logical inconsistency. State v.
Arroyo, 292 Conn. 558, 581–85, 973 A.2d 1254 (2009),
cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed.
2d 1086 (2010).15 Accordingly, even if we were to con-
sider the verdicts as inconsistent, we would not find
error unless the conviction of assault in the second
degree was not supported by sufficient evidence. Id.,
581. In the present case, the jury heard testimony that
the petitioner struck Preston in the head and face with
both a gun and the stick. The habeas court correctly
determined that there was sufficient evidence to sup-
port his conviction. We conclude, on the basis of the
foregoing discussion, that the court properly deter-
mined that the petitioner failed to show any resulting
prejudice from Gladstone’s alleged deficient per-
formance.
II
The petitioner’s next claim is that the habeas court
improperly concluded that Hutchinson, his appellate
counsel, rendered ineffective assistance by ‘‘failing to
challenge the sufficiency of the ‘stick.’ ’’ Specifically,
the petitioner argues that Hutchinson’ failure to ‘‘chal-
leng[e] the sufficiency of the evidence of a deadly
weapon’’ was deficient performance, and that the
habeas court improperly concluded that her failure to
do so was a strategic decision to narrow the issues on
appeal to those most likely to succeed. The petitioner,
in support of this claim, refers to Hutchinson’s testi-
mony at the habeas trial that she had not seen or han-
dled the stick prior to the habeas trial.
We agree that Hutchinson’s failure to review the
exhibits for the petitioner’s direct appeal, under the
circumstances of this case, constituted deficient perfor-
mance when the state claimed that the stick used to
assault the petitioner was a deadly weapon. It is difficult
to see how appellate counsel could have made a strate-
gic decision not to challenge the stick as a deadly
weapon when she had never seen the stick prior to
filing the appeal or at any time thereafter until she
testified at the habeas trial. Strategic decisions require
adequate knowledge and information.16
Nevertheless, the petitioner’s claim of ineffective
assistance of appellate counsel fails because there was
no showing that that he was prejudiced by Hutchinson’s
deficient performance. See McClam v. Commissioner
of Correction, supra, 98 Conn. App. 436. For all of the
reasons previously discussed, there is no reasonable
probability that, but for Hutchinson’s failure to chal-
lenge the stick as a deadly weapon, the petitioner would
have prevailed in his direct appeal to obtain a reversal
of his conviction or the granting of a new trial. See
Moore v. Commissioner of Correction, supra, 119 Conn.
App. 535. There was sufficient evidence presented at
the criminal trial to support the petitioner’s conviction
of assault in the second degree with a deadly weapon.
The jury could have reached its verdict on the basis of
the gun or the stick or both weapons being used to
strike Preston’s head and face. The jury reasonably
could have found the stick in this case to be a deadly
weapon. Any alleged inconsistencies in the verdict of
guilty of assault in the second degree and the verdicts
of not guilty as to the firearm charges, whether factual,
legal or logical, are not reviewable. See State v. Arroyo,
supra, 292 Conn. 581–85. We therefore agree with the
habeas court that the petitioner failed to prove his claim
of ineffective assistance of appellate counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the legislature has amended § 53a-60 (a) since 1995; see, e.g.,
Public Acts 2014, No. 14-220, § 1; those amendments do not affect subsection
(a) (2) and have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of the statute.
2
At the criminal trial, Preston testified that the petitioner first struck him
twice on the head with a gun that he had brought into the apartment.
3
The petitioner testified as to how the stick had been constructed with
a plastic curtain rod, spray foam, black tape and a cord. He testified that
the purpose for its construction was to create a dog toy for his young son
to use when playing with the neighbor’s dog. According to the petitioner,
the cord was wrapped around the stick to prevent the dog from biting the
stick. The petitioner described the neighbor’s dog as a ‘‘little Chihuahua,’’
but the respondent objected to that particular testimony about the dog’s
breed as being irrelevant, and the court sustained the respondent’s objection.
4
The petitioner does not challenge the habeas court’s dismissal of the
third count of his amended petition in this appeal.
5
The first count of the information, which charged the petitioner with
assault in the second degree, alleged that the petitioner ‘‘with intent to cause
physical injury to Hashim Preston caused such injury to Hashim Preston
by means of a deadly weapon in violation of Section 53a-60 (a) (2) of the
Connecticut General Statutes which provides as follows: A person is guilty
of assault in the second degree when with intent to cause physical injury
to another person, he causes such injury to such person by means of a
deadly weapon.’’
In the trial court’s instructions to the jury, it charged: ‘‘For you to find
the defendant guilty of this charge [of assault in the second degree], the
state must prove the following elements beyond a reasonable doubt: that the
[petitioner] intended to physically injure another person, that the [petitioner]
caused such physical injury to his intended victim and that the [petitioner]
used a deadly weapon in causing such injury.’’ The court then provided
the statutory definition of a deadly weapon. There was no mention in the
information or the court’s charge of the stick being considered a dangerous
instrument for purposes of the alleged assault, and the court did not provide
the statutory definition of a dangerous instrument in its instructions to
the jury.
6
See, e.g., http://www.dictionary.com/browse/bludgeon (last visited July
22, 2016).
7
The noun ‘‘bludgeon’’ is defined as ‘‘a short stick that usu[ally] has one
thick or loaded end and is used as a weapon.’’ Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2005).
8
See http://www.thesaurus.com/browse/bludgeon (last visited July 22,
2016), and http://www.oxforddictionaries.com/us/definition/english-thesau-
rus/bludgeon (last visited July 22, 2016). According to Wikipedia, a popular
encyclopedia website, which is accessible to the public free of charge and
updated collaboratively by the site’s visitors, a club is also known as a cudgel,
baton, truncheon, cosh, nightstick, or bludgeon. See https://en.wikipedia.org/
wiki/Club_(weapon) (last visited July 22, 2016).
9
The petitioner’s additional claim that the trial court expanded the defini-
tion of a deadly weapon, in response to a question from the jury, likewise
is not persuasive. The petitioner challenges the court’s statement that a
deadly weapon ‘‘in general terms means some kind of a club.’’ The court
prefaced that statement by instructing the jury to ‘‘use your common sense
definitions or everyday definition’’ to define the terms billy, blackjack or
bludgeon. The petitioner provides no analysis as to why the court’s definition
somehow expanded its original instruction. This claim is inadequately
briefed, and we decline to address it. See Braham v. Newbould, 160 Conn.
App. 294, 312 n.15, 124 A.3d 977 (2015).
10
The petitioner appears to challenge the extent of Preston’s injuries from
being struck with the ‘‘lightweight’’ stick, stating that he ‘‘refused medical
treatment.’’ At the criminal trial, however, Caban and officers who responded
to the incident described Preston’s injuries in the following terms: ‘‘I noticed
that he had cuts and bruises on his face’’; ‘‘[H]e had facial injuries’’; ‘‘He
was injured, there was no doubt about it’’; ‘‘He was lumped up. He had—
he looked like he got beat up’’; ‘‘His face was swollen and he was crying’’;
and ‘‘[I saw cuts] over his eyes. His eyes. . . . And on his face, his forehead,
his eyes. He was beaten up pretty good.’’
11
During the closing argument before the jury, the state’s attorney argued:
‘‘The Judge is going to instruct you on what a deadly weapon is and within
that instruction . . . without interfering in his province of instructing you
upon the law, I would submit to you after he instructs you on the what a
deadly weapon is that both of these items, state’s 1, the pistol, and 3, for
a lack of a better term, the stick, is going to qualify as a deadly weapon,
so I ask you please to listen to his instructions on the law and as to deadly
weapon.’’ He further argued, in summarizing the state’s evidence, that the
petitioner ‘‘did cause physical injury by means of a deadly weapon, either
the handgun or the stick. And Hashim Preston, if you remember, indicated
that he was struck in the back of the head with the handgun.’’
12
Case law supports the proposition that a gun may be used as a bludgeon.
For example, in State v. Mercer, 29 Conn. App. 679, 682, 617 A.2d 916 (1992),
cert. denied, 225 Conn. 902, 621 A.2d 285 (1993), a pistol was not employed
for its designed purpose of firing a bullet, but, rather, was ‘‘used as a
bludgeon’’ to strike the victim. In State v. Ovechka, 292 Conn. 533, 544, 975
A.2d 1 (2009), our Supreme Court found persuasive the decision of a Mary-
land appellate court that concluded an unloaded gun or starter’s pistol was
‘‘useable as a bludgeon.’’ (Internal quotation marks omitted.) Further, in
State v. Manley, 195 Conn. 567, 576 n.9, 489 A.2d 1024 (1985), our Supreme
Court noted: ‘‘The state did not try this case on the theory that the ‘deadly
weapon’ involved here was the gun used as a ‘bludgeon.’ See Perkins, Crimi-
nal law (2d Ed. 1969), p. 131 (‘A firearm might be used as a club whether
loaded or unloaded’) . . . .’’
13
At the criminal trial, Caban testified that she did not see the actual
attack or a gun.
14
Credibility is clearly a matter for the jury; we do not make credibility
determinations or second guess the jury. See McClean v. Commissioner of
Correction, 103 Conn. App. 254, 263, 930 A.2d 693 (2007), cert. denied, 285
Conn. 913, 943 A.2d 473 (2008). This argument merits no further discussion.
15
The rationale for this rule is as follows: ‘‘The United States Supreme
Court rejected this claim [in United States v. Powell, 469 U.S. 57, 65–66,
105 S. Ct. 471, 83 L. Ed. 2d 461 (1984)]. The court reasoned that inconsistent
verdicts . . . should not necessarily be interpreted as a windfall to the
[g]overnment at the defendant’s expense. It is equally possible that the jury,
convinced of guilt, properly reached its conclusion on the compound offense,
and then through mistake, compromise, or lenity, arrived at an inconsistent
conclusion on the lesser offense. But in such situations the [g]overnment
has no recourse if it wishes to correct the jury’s error; the [g]overnment is
precluded from appealing or otherwise upsetting such an acquittal by the
[c]onstitution’s [d]ouble [j]eopardy [c]lause. . . . The fact that the inconsis-
tency may be the result of lenity, coupled with the [g]overnment’s inability to
invoke review, suggests that inconsistent verdicts should not be reviewable.’’
(Citation omitted; footnote omitted; internal quotation marks omitted.) State
v. Arroyo, supra, 292 Conn. 585. ‘‘[A] criminal defendant already is afforded
protection against jury irrationality or error by the independent review of
the sufficiency of the evidence undertaken by the trial and appellate courts.’’
(Internal quotation marks omitted.) Id.
16
‘‘[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations
on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investi-
gations unnecessary. In any ineffectiveness case, a particular decision not
to investigate must be directly assessed for reasonableness in all the circum-
stances, applying a heavy measure of deference to counsel’s judgments.’’
Strickland v. Washington, supra, 466 U.S. 690–91.
At the habeas trial, when asked if she had viewed the exhibits in this
case, Hutchinson responded with the testimony that she did not recall ever
viewing the exhibits for an appeal. She admitted that she had not challenged
the stick as a deadly weapon in the appeal, but stated that she might have
reasoned that the jury was the ultimate fact finder.