Kitchens v. Commissioner of Correction , 167 Conn. App. 851 ( 2016 )

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MARVIN KITCHENS v. COMMISSIONER
OF CORRECTION
(AC 37390)
Beach, Sheldon and Mullins, Js.
Argued April 7—officially released August 30, 2016
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Mary Boehlert, assigned counsel, for the appellant
(petitioner).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Jo Anne Sulik, supervisory assis-
tant state’s attorney, for the appellee (respondent).
Opinion
SHELDON, J. The petitioner, Marvin Kitchens,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus, in which he
challenged the conviction rendered against him after a
jury trial, on charges of kidnapping in the second degree
in violation of General Statutes § 53a-94 (a)1 and unlaw-
ful restraint in the first degree in violation of General
Statutes § 53a-95 (a),2 on the ground of ineffective assis-
tance of counsel. He claims, more particularly, that the
habeas court erred in ruling that his trial counsel did
not render ineffective assistance by failing to request
proper jury instructions on two essential elements of
the charged offenses and/or failing to object or except
to the trial court’s omission of such proper jury instruc-
tions from the court’s charge. First, he claims that the
jury should have been instructed, pursuant to State v.
Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), that the
offense of kidnapping requires proof that he intended
to prevent the victim’s liberation for a longer period of
time or to a greater degree than that which is necessary
to commit another crime against the victim. Second,
he claims that the jury should have been instructed, as
part of the common element of restraint required for
commission of the offenses of unlawful restraint and
kidnapping, that he acted with a specific intent to inter-
fere substantially with the victim’s liberty rather than
merely a general intent to engage in conduct that caused
that result.
The respondent, the Commissioner of Correction,
argues that the habeas court properly concluded that
the petitioner failed to establish ineffective assistance
as to either challenged aspect of his trial counsel’s rep-
resentation. We agree with the respondent, and thus
affirm the judgment of the habeas court.
The following facts, as set forth by our Supreme Court
in its decision affirming the petitioner’s underlying crim-
inal conviction on direct appeal, are relevant to this
appeal. ‘‘On the night of April 19, 2007, the victim, Jen-
naha Ward, was playing cards with her godfather, Ron-
ald Sears, at Sears’ second story apartment in the city
of Hartford. While playing cards, the victim and Sears
decided to eat, and Sears went out and purchased
shrimp for them to fry. The victim then prepared the
shrimp while Sears heated cooking oil in a cast iron
skillet. While they were eating the shrimp, the [peti-
tioner] called Sears’ cell phone looking for the victim,
with whom the [petitioner] had been in a five month
extramarital relationship that the victim recently had
ended. The [petitioner] told the victim that he was
around the corner from Sears’ apartment and asked
whether she would come down and talk to him, and
the victim said that she would. The victim, however,
did not intend to speak to the [petitioner]. Rather, she
went downstairs to lock the door to make sure that he
could not get inside. When the victim reached the first
floor landing, she jumped up to look out the window
above the door to see whether the [petitioner] had
arrived yet. As soon as she landed back on her feet, he
burst through the door, grabbed her by her clothing
and pulled her outside. After the [petitioner] heard a
woman say that she was calling the police, he again
grabbed the victim by her clothing and dragged her
back inside and upstairs to Sears’ apartment.
‘‘Once upstairs in the apartment, the [petitioner]
asked the victim why she had ended their relationship
and physically blocked her from leaving the apartment
when she tried to run out the door. Following the alter-
cation that ensued between the [petitioner] and the
victim, during which Sears asked them to take their
dispute outside, she sustained first and second degree
burns to her face after her head made contact with the
skillet containing the frying oil. The [petitioner] then
fled the apartment, at which time Sears called for the
police and emergency assistance. The victim received
treatment for her facial burns at Saint Francis Hospital
and Medical Center, and the Burn Center at Bridge-
port Hospital.
‘‘After a police investigation, the [petitioner] was
arrested, and the state charged him in a five count
information with assault in the first degree in violation
of General Statutes § 53a-59 (a) (1), attempt to commit
assault in the first degree in violation of General Stat-
utes §§ 53a-59 (a) (2) and 53a-49 (a) (2), burglary in the
second degree in violation of General Statutes (Rev. to
2007) § 53a-102 (a) (1), kidnapping in the second degree
in violation of § 53a-94 (a), and unlawful restraint in
the first degree in violation of § 53a-95 (a). Following a
jury trial and the trial court’s denial of defense counsel’s
oral motion for judgment of acquittal, the jury returned
a verdict of not guilty on the assault, attempted assault
and burglary charges, but guilty on the kidnapping and
unlawful restraint charges. The trial court then ren-
dered judgment of conviction in accordance with the
jury’s verdict and sentenced the [petitioner] to a total
effective sentence of twelve years imprisonment, exe-
cution suspended after eight years, and five years proba-
tion.’’ (Footnotes omitted.) State v. Kitchens, 299 Conn.
447, 450–52, 10 A.3d 942 (2011).
‘‘The case was tried in late February and early March
of 2008, four months prior to the July 1, 2008 release
of our decision in State v. Salamon, supra, 287 Conn.
509. The trial court’s instruction on kidnapping in the
second degree did not direct the jury to consider
whether the restraint imposed exceeded that necessary
or incidental to the underlying assault crimes.3 Further,
the defense did not file a request to charge the jury, or
take an exception to the instructions as given, to that
effect.’’ (Footnote altered.) Id., 453–54.
‘‘On February 25, 2008, the state filed a request to
charge containing five suggested changes to the instruc-
tions on assault and burglary. The following day, when
the trial court noted on the record that defense counsel
had stated in chambers that he did not intend to file a
request to charge and asked if that was still the case,
counsel replied that it was. Two days later, the court
held an on-the-record charge conference in which it
referred to a proposed charge it previously had given
to the parties. After a brief discussion with the assistant
state’s attorney (prosecutor) concerning the assault
instruction, the court asked defense counsel if there
was anything he wanted to discuss. Counsel indicated
that he would like to discuss the prosecutor’s request to
charge, which the court proceeded to consider. Defense
counsel agreed that the proposed language fairly stated
the law and indicated that he either had no objection
or preferred the standard charge. At one point, defense
counsel asked that the court use less ‘pejorative’ lan-
guage in its instruction on the [petitioner]’s decision
not to testify, and the court agreed to do so. At the
conclusion of the conference, the court asked the attor-
neys, ‘[a]nything else about the charge . . . ?’ Defense
counsel replied, ‘[n]o, Your Honor. I don’t think so.’
After addressing certain other matters, the court
advised that both attorneys should refrain from defining
legal terms in their summations and should limit their
arguments to the facts that would satisfy the elements
of the charged crimes. Both parties agreed, with defense
counsel responding, ‘[f]air enough.’
‘‘Several days later, the court informed the parties in
an on-the-record conference that it had completed the
jury instructions and that each attorney should obtain a
copy for discussion at a future meeting. The prosecutor
responded that he had stopped by the courthouse the
previous day, had read the completed instructions and
was ready to make some suggestions, none of which
related to the kidnapping or unlawful restraint counts,
but that he did not know if defense counsel had done
the same. The court replied that, if the prosecutor had
any suggestions, it wanted to hear them at that time.
Reading from his copy of the instructions, the prosecu-
tor remarked on a typographical error and suggested
one other minor correction to the instruction on credi-
bility. At the conclusion of the discussion, the court
turned to defense counsel and asked if he also had
been able to examine the instructions, to which counsel
replied, ‘[a]ctually, Your Honor, my copy is downstairs,
but I didn’t have any major revisions.’ The court then
concluded: ‘All right. So then we don’t have to get
together. We’re done. Okay.’ Neither party said anything
further on the matter, and the court adjourned.
‘‘Thereafter, the parties made their closing argu-
ments, and the court instructed the jury. The court first
instructed on the element of intent under count one—
first degree assault—that, ‘[a]s 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.’ For each
substantive offense thereafter, the court repeated the
preceding instruction on intent or stated as follows:
‘You will recall the instructions on intent that I gave
you, when I explained count one and apply them here
also.’ Upon completion of the instructions, the prosecu-
tor stated that he had no exceptions. Defense counsel
volunteered that he also had no exceptions. Neither
party made any other comments and jury deliberations
followed.’’ (Footnote omitted.) Id., 463–65.
In addition, the court defined ‘‘restrain’’ when
describing the elements of kidnapping in the second
degree and unlawful restraint in the first degree, as to
restrict a person’s movements intentionally and unlaw-
fully in such a manner as to interfere substantially with
his liberty.
On August 9, 2013, the petitioner filed an amended
petition for a writ of habeas corpus, claiming, inter
alia, that his trial attorney’s failure to request a charge
pursuant to Salamon, or on specific intent and failure
to take exception to the charge as given, fell below the
standard of reasonable competence.4
The petitioner’s habeas trial was held on November
18, 2013, before Judge Cobb. The petitioner’s public
defender, Bruce Lorenzen, testified that he had gradua-
ted from law school in 1984. He worked as a public
defender for ten years in New York before coming to
Connecticut, where he has been a public defender since
1999. Lorenzen’s defense theory in the petitioner’s case
was that the victim was obsessed with the petitioner
and upset that he had ended their relationship. Consis-
tent with that theory, Lorenzen argued that the victim
had summoned the petitioner to Sears’ apartment,
where, during a mutual physical altercation between
them, a pot of oil had splashed on her. In support of
that theory, Lorenzen attacked the credibility of the
victim, claiming, in particular, that the victim’s story
that the petitioner had pushed in the front door of Sears’
apartment building and forced her upstairs was not
plausible because the front door to the building was
self-locking.
Lorenzen recalled in his testimony that a charge con-
ference had been held off the record, and was later
memorialized on the record. He recalled the instruc-
tions on intent as being the ‘‘standard pattern instruc-
tions . . . .’’ He testified that he had not regarded use
of the standard instructions as a problem, nor had he
‘‘any particularly strong concerns’’ about them in this
case, ‘‘given the . . . theory of defense and the state
of the law at the time that the case was tried.’’ Lorenzen
additionally testified that, although he was aware that,
contemporaneously with the petitioner’s trial, an argu-
ment was being made on appeal in Salamon that the
proof requirements for kidnapping should be changed,
he did not make that argument in his case because it
was inconsistent with his theory of defense. He
explained, ‘‘If you consider where Salamon got us to,
in this case, potentially the jury would understand a
Salamon-like instruction as—if you think he did the
assault, the kidnapping should be considered separately
and require more proof than just proof of the assault.
And the theory of defense was that [the petitioner]
hadn’t done anything wrong, so, essentially, like the
decision on whether or not to request a lesser included
offense, frequently, you wouldn’t request a lesser
included if your theory was that your client hadn’t done
anything wrong at all.’’ In fact, Lorenzen said, he would
not have requested a Salamon instruction even if Sala-
mon had been decided prior to the petitioner’s trial.
As for an instruction on specific intent, Lorenzen
testified that he did not consider intent to be ‘‘an issue
of any real moment in the case’’ because the issue in
the case ‘‘was not . . . that . . . [the petitioner] had
done something wrong and what did he have in his
head when he did it, it was more about whether he had
done anything wrong at all . . . .’’
On September 17, 2014, the habeas court issued its
memorandum of decision denying the petition for a writ
of habeas corpus. The court concluded that Lorenzen’s
failure to request a Salamon instruction was not defi-
cient performance, explaining its decision as follows.
‘‘This claim fails because State v. Salamon, supra, 287
Conn. 509, represented a significant change in the law
of kidnapping and was not decided until several months
after the petitioner’s trial.
‘‘At the time of the petitioner’s trial, the law related
to kidnapping and other crimes was governed by State
v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977),
and State v. Luurtsema, 262 Conn. 179, 200–204, 811
A.2d 223 (2002), overruled in part by State v. Salamon,
287 Conn. 509, 513–14, 949 A.2d 1092 (2008). Under
these cases, a person could be convicted of kidnapping
if he restrained another person with the intention to
prevent their liberation even if the restraint was inciden-
tal to the commission of another offense. . . . In State
v. Salamon, supra, 287 Conn. 509, the Supreme Court
reversed this precedent and held for the first time that
‘to commit a kidnapping in conjunction with another
crime, a defendant must intend to prevent the victim’s
liberation for a longer period or to a greater degree
than that which is necessary to commit the other crime.’
Id., 542. In other words, the court held that there can
be no kidnapping under Connecticut law if the restraint
is merely incidental to another crime. Id.‘‘The trial in this case occurred in February and early
March, 2008. The Supreme Court issued its decision in
State v. Salamon, supra, 287 Conn. 509, on July 1, 2008,
approximately three months later. Thus, at the time of
the trial in this case the law of kidnapping was governed
by State v. Luurtsema, supra, 262 Conn. 200–204. Had
trial counsel sought an instruction similar to that later
approved in Salamon, it would have been rejected by
the trial court as contrary to binding precedent of the
Supreme Court. See Hinds v. Commissioner of Correc-
tion, 151 Conn. App. 837, 855, 97 A.3d 986 (2014) (‘[I]n
light of our Supreme Court’s affirmation and reaffirma-
tion of its holding in Chetcuti, there was no reasonable
basis for counsel to have asked the court in the petition-
er’s criminal trial for an instruction not then permitted
and, indeed, expressly rejected by then controlling deci-
sional law. Moreover, given the pre-Salamon status of
the judicial gloss on the kidnapping statute, there was
good reason, based on professionalism, for counsel not
to have sought a Salamon instruction at trial and to have
challenged on appeal the absence of such a charge.’).’’
In addition, the habeas court found that the petitioner
had not been prejudiced by the lack of a Salamon
instruction. ‘‘The court notes that in the direct appeal
of the petitioner’s conviction, the Supreme Court deter-
mined that the acquittal on the underlying assault
charges rendered the lack of a Salamon instruction
harmless error. State v. Kitchens, supra, 299 Conn. 453.
For the same reason, the petitioner has not proved that
he was prejudiced by the failure of the trial court to
give the instruction in this case.’’
As for counsel’s alleged failure to seek a proper
instruction on specific intent, the habeas court also
rejected this claim, stating, ‘‘This court agrees with Jus-
tice Katz’ concurring opinion in State v. Kitchens, supra,299 Conn. 529–30, that although the trial court’s charge
may have improperly included both specific and general
intent, reading the instructions as a whole, the charge
adequately presented the elements of the charges, and
it was not reasonably possible that the jury was misled.
‘‘Moreover, the court finds that it was objectively
reasonable for trial counsel to have determined that the
instruction was appropriate under the circumstances.
Accordingly, the petitioner has failed to establish a defi-
ciency by trial counsel.’’
The petitioner claims that the habeas court erred in
finding that his counsel’s failure to request Salamon
and specific intent instructions and failure to object to
the instructions as given did not constitute deficient per-
formance.
‘‘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 viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . .
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the] conviction . . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense [by establishing a
reasonable probability that, but for the counsel’s mis-
takes, the result of the proceeding would have been
different]. . . . Unless a [petitioner] makes both show-
ings, it cannot be said that the conviction . . . resulted
from a breakdown in the adversary process that renders
the result unreliable. . . . Furthermore, [i]n a habeas
corpus proceeding, the petitioner’s burden of proving
that a fundamental unfairness had been done is not met
by speculation . . . but by demonstrable realities.’’
(Citation omitted; emphasis omitted; internal quotation
marks omitted.) Farnum v. Commissioner of Correc-
tion, 118 Conn. App. 670, 674–75, 984 A.2d 1126 (2009),
cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).
I
The petitioner first claims that the habeas court erred
in not finding trial counsel’s failure to request an instruc-
tion consistent with the new interpretation of kidnap-
ping announced in Salamon constituted ineffective
assistance of counsel. The petitioner acknowledges that
Salamon was not decided until after his trial, but argues
that, because Lorenzen was aware that the law was in
flux at the time of his trial, he should have made an
argument that was contrary to the law at the time.
The decision in Salamon was not issued until after
the petitioner’s trial. Accordingly, as the habeas court
noted, Lorenzen’s failure to request an instruction
requiring the jury to find that the petitioner intended
to prevent the victim’s liberation for a longer period of
time or to a greater degree than that which is necessary
to commit another crime was consistent with existing
law at the time of trial. Lorenzen was not required to
advance a ‘‘speculative theory.’’ See Ledbetter v. Com-
missioner of Correction, 275 Conn. 451, 461, 880 A.2d
160 (2005) (‘‘counsel’s failure to advance novel legal
theories or arguments does not constitute ineffective
performance’’), cert. denied sub nom. Ledbetter v.
Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77(2006). This is especially true because, as Lorenzen
testified, the speculative theory urged by the petitioner
would have been inconsistent with the defense theory
of the case.
Accordingly, the petitioner cannot establish that his
counsel’s performance was deficient, and the habeas
court did not err in denying his petition on that ground.
II
The petitioner next claims that the habeas court erred
in finding that Lorenzen’s failure to ensure that the jury
was instructed only on specific intent did not constitute
ineffective assistance of counsel.
In State v. Salamon, supra, 287 Conn. 569–71, the
defendant claimed that the jury also was improperly
instructed on the intent required for the offense of
unlawful restraint. More specifically, the defendant
claimed that the jury instructions effectively eliminated
the specific intent element, and only instructed the jury
that ‘‘a person acts intentionally with respect to [a]
result or conduct when the conscious objective is to
engage in such conduct.’’ (Internal quotation marks
omitted.) Id., 570. Later, the court instructed the jury
that ‘‘[r]estraint, as we just discussed, means to restrict
a person’s movements intentionally and unlawfully in
such a manner so as to substantially interfere with her
liberty by confining her without her consent.’’ (Internal
quotation marks omitted.) Id., 571. Our Supreme Court
concluded that the jury instructions were not mis-
leading, reasoning as follows: ‘‘The state concedes that
the trial court’s definition of intent was incomplete
because the court failed to explain the term in accor-
dance with the statutory definition. Because the court’s
definition of intent did not contain the phrase to cause
such result, that definition focused solely on the con-
cept of general intent—that is, an intent to engage in
certain conduct—and not on the concept of specific
intent—that is, an intent to bring about a certain result.
When the elements of a crime consist of a description
of a particular act and a mental element not specific
in nature, the only issue is whether the defendant
intended to do the proscribed act. If he did so intend,
he has the requisite general intent for culpability. When
the elements of a crime include a defendant’s intent to
achieve some result additional to the act, the additional
language distinguishes the crime from those of general
intent and makes it one requiring a specific intent. . . .
Because, as we have explained, unlawful restraint is a
specific intent crime, the court’s definition of intent,
standing alone, was inaccurate for purposes of the pre-
sent case. . . .
‘‘[W]e conclude that it is not reasonably possible that
the jury was misled by the court’s incomplete definition
of intent because the court thereafter accurately
explained that, to prove the element of restraint, the
state was required to establish that the defendant had
restricted the victim’s movements intentionally and
unlawfully in such a manner so as to interfere substan-
tially with her liberty by confining her without her con-
sent. . . . Under this explanation, there is no
reasonable possibility that the jury could have found
the defendant guilty of unlawful restraint unless it first
had found that he had restricted the victim’s movements
with the intent to interfere substantially with her liberty.
In other words, because restraint is itself defined in
terms that include the requirement of a specific intent,
and because the trial court properly instructed the jury
on that definition, the defendant was not prejudiced by
the trial court’s failure to define intent in full compliance
with [General Statutes] § 53a-3 (11).’’5 (Citation omitted;
emphasis in original; footnote added; internal quotation
marks omitted.) Id., 572–74.
Here, we also conclude that the petitioner’s jury could
not have been misled by the instructions provided. Jus-
tice Katz, in her concurrence in the petitioner’s direct
appeal, came to the same conclusion when she deter-
mined that the instruction given on intent did not consti-
tute a constitutional violation under State v. Golding,
213 Conn. 233, 567 A.2d 823 (1989); see In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying
third condition of Golding test). She also relied on Sala-
mon, reasoning as follows: ‘‘As the state properly con-
cedes in the present case, the trial court’s definition
of intent incorrectly encompassed both specific and
general intent. See State v. Francis, 246 Conn. 339, 358,
717 A.2d 696 (1998) (although generally it is improper
for trial court to provide entire statutory definition of
intent when charge required specific intent, no error in
context of particular case when jury not misled); State
v. Youngs, 97 Conn. App. 348, 361, 904 A.2d 1240 (same),
cert. denied, 280 Conn. 930, 909 A.2d 959 (2006). There-
fore, as in Salamon, the question is whether it was
reasonably possible that the jury relied on the general
intent instruction to convict the [petitioner] of a specific
intent crime. Reading the jury instructions as a whole,
I conclude that it was not reasonably possible that the
jury was misled. In the present case, the trial court
twice provided the exact same definition of restraint
as was provided by the trial court in Salamon, which
explicitly required the jury to find that the [petitioner]
had restricted the victim’s movements with the intent
to interfere substantially with her liberty. Therefore, I
conclude that the trial court’s instructions adequately
presented the elements of the charges of kidnapping
in the second degree and unlawful restraint in the first
degree to the jury. Therefore, the [petitioner] has failed
to establish that there was a constitutional violation.’’
State v. Kitchens, supra, 299 Conn. 528–30 (Katz, J.,
concurring).
We agree with Justice Katz that the instruction in
this case that the petitioner must have restricted the
victim’s movements with the intent to interfere substan-
tially with her liberty ‘‘adequately presented the ele-
ments of the charges of kidnapping in the second degree
and unlawful restraint in the first degree to the jury.’’
Id., 530; see also State v. Salamon, supra, 287 Conn.
573. As Judge Cobb appropriately concluded, it was
not reasonably possible that the petitioner’s jury was
misled. Therefore, the petitioner has not met his burden
of ‘‘establishing a reasonable probability that, but for
[his] counsel’s mistakes, the result of the proceeding
would have been different,’’ as required to establish the
second prong of Strickland. Farnum v. Commissioner
of Correction, supra, 118 Conn. App. 675.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-94 (a) provides: ‘‘A person is guilty of kidnapping
in the second degree when he abducts another person.’’ (Emphasis added.)
General Statutes § 53a-91 (2) provides: ‘‘ ‘Abduct’ means to restrain a
person with intent to prevent his liberation by either (A) secreting or holding
him in a place where he is not likely to be found, or (B) using or threatening
to use physical force or intimidation.’’ (Emphasis added.)
General Statutes § 53a-91 (1) provides in relevant part: ‘‘ ‘Restrain’ means
to restrict a person’s movements 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
restriction commences or in a place to which he has been moved, without
consent. . . .’’ (Emphasis added.)
2
General Statutes § 53a-95 (a) provides: ‘‘A person is guilty of unlawful
restraint in the first degree when he restrains another person under circum-
stances which expose such other person to a substantial risk of physical
injury.’’ (Emphasis added.)
General Statutes § 53a-91 (1) provides in relevant part: ‘‘ ‘Restrain’ means
to restrict a person’s movements 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
restriction commences or in a place to which he has been moved, without
consent. . . .’’ (Emphasis added.)
3
‘‘We note that the trial court instructed the jury in relevant part: ‘The
[petitioner] is charged in count four with the crime of kidnapping in the
second degree, in violation of [§] 53a-94 of the Penal Code, which provides,
as it pertains to this case, as follows: A person is guilty of kidnapping in
the second degree when he abducts another person.
‘The elements of the crime: For you to find the [petitioner] guilty of this
charge, the state must prove beyond a reasonable doubt that the [petitioner]
abducted the victim. ‘‘Abduct’’ means, as it pertains to this case, to restrain
a person with intent to prevent his liberation by using or threatening the
use of physical force or intimidation. The term ‘‘restrain’’ means to restrict
a person’s movements 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 restriction com-
mences or in a place to which he has been moved without consent. As used
here, ‘‘without consent’’ means but is not limited to any means whatsoever.
You will recall my earlier instructions on intent and apply them here also.
‘Now, the state contends in count four that, on or about April 19, 2007,
in the late evening, at 15 Martin Street, Hartford, Connecticut, the [petitioner]
. . . abducted [the victim]. The [petitioner], on the other hand, denies all
of the state’s allegations. If you unanimously find in count four that the
state has failed to satisfy you beyond a reasonable doubt as to any of the
necessary elements, which I have explained to you, you must find the
[petitioner] not guilty. On the other hand, if the state has satisfied you
beyond a reasonable doubt of the existence of each of these essential
elements, your verdict should be guilty of the [offense] as charged on this
count.’ ’’ State v. Kitchens, supra, 299 Conn. 453–54 n.9.
4
The petitioner also claimed that his due process right to a fair trial and
right to redress of grievances were violated. Finally, the petitioner claimed
that the decision in Kitchens violated the nonretroactivity doctrine of Teague
v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). The habeas
court denied these claims. The petitioner appeals only from the denial of
his ineffective assistance of counsel claims.
5
General Statutes § 53a-3 (11) provides: ‘‘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 . . . .’’