Miller v. Commissioner of Correction ( 2014 )

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KHARI MILLER v. COMMISSIONER OF CORRECTION
(AC 35788)
DiPentima, C. J., and Sheldon and Sullivan, Js.
Argued September 11—officially released December 9, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Michael D. Day, for the appellant (petitioner).
Maria del Pilar Gonzalez, special deputy assistant
state’s attorney, with whom, on the brief, were Gail P.
Hardy, state’s attorney, and Jo Anne Sulik, supervisory
assistant state’s attorney, for the appellee (respondent).
Opinion
SULLIVAN, J. The petitioner, Khari Miller, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his third amended petition for a writ of habeas corpus.
On appeal, the petitioner claims that the court abused
its discretion in denying the petition for certification
to appeal and improperly determined that (1) his trial
counsel rendered effective assistance despite failing to
‘‘properly and adequately develop and raise a claim
of self-defense at the petitioner’s underlying criminal
trial,’’ specifically, by failing to call the petitioner to
testify; (2) his trial counsel rendered effective assis-
tance although he did not object to or otherwise chal-
lenge the trial court’s initial jury charge on intent; and
(3) his appellate counsel rendered effective assistance
despite failing to raise a claim of instructional error on
direct appeal with respect to intent. We agree that the
court abused its discretion in denying certification to
appeal. Nevertheless, we conclude that the court prop-
erly determined that the petitioner failed to prove that
either trial or appellate counsel rendered ineffective
assistance. Accordingly, we affirm the judgment of the
habeas court.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s appeal. In 2000,
following a jury trial, the petitioner was convicted of
murder in violation of General Statutes § 53a-54a and
possession of a weapon in a motor vehicle in violation
of General Statutes § 29-38. The trial court imposed a
total effective sentence of fifty years incarceration. This
court affirmed the judgment of conviction on direct
appeal. State v. Miller, 67 Conn. App. 544, 787 A.2d 639,
cert. denied, 259 Conn. 923, 792 A.2d 855 (2002). The
petitioner subsequently petitioned our Supreme Court
for certification to appeal. On February 6, 2002, the
Supreme Court denied the petition. State v. Miller, 259
Conn. 923, 792 A.2d 855 (2002).
On direct appeal, this court noted that the jury reason-
ably could have found the following facts: ‘‘On the night
of October 1, 1998, the [petitioner] and two others were
talking in the front yard of a house on Burnham Street
in Hartford. Shortly before midnight, the victim drove
up to the house. He parked, leaving his three year old
son in the car, and joined the men. The victim initially
was calm, but soon thereafter began to shout at the
[petitioner].
‘‘After three to five minutes, the conversation turned
violent, and the [petitioner] shot the victim in the neck
from a distance of four or five feet. The victim ran to
his car and began to drive away, but crashed into a
nearby fence. He died shortly thereafter as a result of
the shooting. The police considered the [petitioner],
who had left the scene, to be a suspect.
‘‘The next day, October 2, police officers saw the
[petitioner] getting into a car. They stopped the car and
arrested him pursuant to an outstanding warrant related
to an alleged felony murder committed on January 25,
1998. The [petitioner] was taken to the police station
for questioning and signed a Miranda1 waiver for the
January, 1998 murder. While being questioned about
that murder, he made an inculpatory statement about
the October, 1998 murder that is the subject of this
appeal. The police also found a gun wrapped in a shirt
in the backseat of the car [in which the petitioner was
apprehended]. They later determined that it was the
one used to shoot the victim.’’ (Footnotes altered.) State
v. Miller, supra, 67 Conn. App. 545–46.
On November 13, 2012, the petitioner filed his third
amended petition for a writ of habeas corpus. In count
one, he alleged, inter alia, that his trial attorney, William
Shea, had rendered ineffective assistance by (1) failing
to call the petitioner to testify in support of his defense
at trial and (2) failing to object to the trial court’s jury
charge on intent. The petitioner claimed that but for
his trial counsel’s deficient performance, the result of
the trial would have been more favorable. In count
two, the petitioner alleged that his appellate attorney,
Suzanne Zitser, had rendered ineffective assistance by
failing to challenge on appeal the trial court’s charge
on intent. The petitioner claimed that ‘‘but for appellate
counsel’s failure to properly and adequately raise [that
issue] on appeal, [he] would have prevailed in his
direct appeal.’’2
At the habeas trial on November 13, 2012, the court
heard testimony from the petitioner, Shea, and Attorney
Jeffrey Kestenband, the petitioner’s expert witness. In
a memorandum of decision filed May 17, 2013, the court,
Cobb, J., denied the third amended petition. Thereafter,
the petitioner filed a petition for certification to appeal
pursuant to General Statutes § 52-470 (g).3 The court
denied the petition for certification to appeal, and this
appeal followed. Additional facts will be set forth as
necessary to review each of the petitioner’s claims.
I
On appeal, the petitioner argues that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal. He argues that the question of whether
his trial and appellate counsel were constitutionally
deficient was not frivolous and, therefore, certification
should have been granted. We agree.
In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d
126 (1994), this court adopted the factors identified by
the United States Supreme Court in Lozada v. Deeds,
498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956(1991), as the appropriate standard for determining
whether the habeas court abused its discretion in deny-
ing certification to appeal. ‘‘Faced with the habeas
court’s denial of certification to appeal, a petitioner’s
first burden is to demonstrate that the habeas court’s
ruling constituted an abuse of discretion. . . . A peti-
tioner may establish an abuse of discretion by demon-
strating that the issues are debatable among jurists of
reason . . . [the] court could resolve the issues [in a
different manner] . . . or . . . the questions are ade-
quate to deserve encouragement to proceed further.
. . . The required determination may be made on the
basis of the record before the habeas court and applica-
ble legal principles. . . . If the petitioner succeeds in
surmounting that hurdle, the petitioner must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Crespo v.
Commissioner of Correction, 292 Conn. 804, 811, 975
A.2d 42 (2009); see also Simms v. Warden, supra, 612.
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria identified in Lozada and adopted
by this court for determining the propriety of the habeas
court’s denial of the petition for certification. Absent
such a showing by the petitioner, the judgment of the
habeas court must be affirmed.’’ Taylor v. Commis-
sioner of Correction, 284 Conn. 433, 449, 936 A.2d
611 (2007).
Further, this court has held that it is improper for a
trial court to reference in its instructions the portion
of General Statutes § 53a-3 (11)4 addressing the intent
to engage in proscribed conduct where the defendant
has been charged with a specific intent crime. See, e.g.,
State v. Holmes, 75 Conn. App. 721, 736–37, 817 A.2d
689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003).
Upon review of the three claims raised by the peti-
tioner, we agree with the petitioner that the habeas
court abused its discretion in denying his petition for
certification to appeal. The petitioner’s claim that his
trial counsel rendered ineffective assistance in not
objecting to the trial court’s initial charge on intent,
which was subsequently repeated verbatim in its charge
in response to a question from the jury regarding the
definition of intent, is the kind of claim that warrants
further consideration by this court. See Lozada v.
Deeds, supra, 498 U.S. 432.
In the present case, the trial court, Dewey, J., orally
instructed the jury on two occasions, reciting the entire
definition of intent. The jury was then provided with
an exact written copy of these improper instructions.
Subsequently, the court correctly instructed the jurors,
on approximately nine occasions, that to find the peti-
tioner guilty of murder, they must find that he caused
the death of the victim with the specific intent to cause
his death. The habeas court acknowledged that,
although ‘‘it is improper for a court to refer in its instruc-
tion to the entire definitional language of § 53a-3 (11),
including the intent to engage in conduct, when the
charge relates to a crime requiring only the intent to
cause a specific result . . . a trial court’s improper
instruction on general intent does not necessarily mean
that the jury was misled.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Jurists of
reason could disagree as to whether it is reasonably
possible that the charge, viewed in its entirety, misled
the jury. See State v. Holmes, supra, 75 Conn. App.
737. Accordingly, we conclude that the court abused
its discretion in denying the petition for certification
to appeal and proceed to a full review of the merits of
the petitioner’s appeal.
II
As stated previously, the petitioner claims that the
habeas court improperly determined that (1) his trial
counsel rendered effective assistance despite failing to
‘‘properly and adequately develop and raise a claim
of self-defense at the petitioner’s underlying criminal
trial,’’ specifically, by failing to call the petitioner to
testify; (2) his trial counsel rendered effective assis-
tance although he did not object to or otherwise chal-
lenge the trial court’s initial jury charge on intent; and
(3) his appellate counsel rendered effective assistance
despite failing to raise a claim of instructional error on
direct appeal with respect to intent. We disagree.
Turning to the merits of the petitioner’s ineffective
assistance of counsel claims, we first set forth our stan-
dard of review. ‘‘Our standard of review of a habeas
court’s judgment on ineffective assistance of counsel
claims 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 consti-
tuted a violation of the petitioner’s constitutional right
to effective assistance of counsel is plenary.’’ (Internal
quotation marks omitted.) Goodrum v. Commissioner
of Correction, 63 Conn. App. 297, 299, 776 A.2d 461,
cert. denied, 258 Conn. 902, 782 A.2d 136 (2001).
First, we summarize the law governing the petition-
er’s three claims. Our Supreme Court has adopted the
two-pronged test promulgated by the United States
Supreme Court in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to analyze
claims alleging ineffective assistance of counsel. See
Copas v. Commissioner of Correction, 234 Conn. 139,
147, 662 A.2d 718 (1995). ‘‘To prevail on a claim of
ineffective assistance of counsel, a petitioner must
show that (1) counsel’s performance was deficient and
(2) the deficient performance prejudiced the defense.
. . . The first prong is satisfied by proving that counsel
made errors so serious that he was not functioning as
the counsel guaranteed by the sixth amendment. The
second prong is satisfied if it is demonstrated that there
exists a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. . . . Unless a [petitioner]
makes both showings, it cannot be said that the convic-
tion . . . resulted from a breakdown in the adversary
process that renders the result unreliable. Because both
prongs . . . must be established for a habeas peti-
tioner to prevail, a court may dismiss a petitioner’s
claim if he fails to meet either prong.’’ (Citations omit-
ted; internal quotation marks omitted.) Gibson v. Com-
missioner of Correction, 118 Conn. App. 863, 873–74,
986 A.2d 303, cert. denied, 295 Conn. 919, 991 A.2d
565 (2010).
Before reviewing whether counsel provided ineffec-
tive assistance to the petitioner in the present case, we
note: ‘‘Judicial scrutiny of counsel’s performance must
be highly deferential. It is all too tempting for a defen-
dant to second-guess counsel’s assistance after convic-
tion or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omis-
sion of counsel was unreasonable. . . . A fair assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy.’’ (Citation
omitted; internal quotation marks omitted.) Strickland
v. Washington, supra, 466 U.S. 689. With the foregoing
principles in mind, we address in turn the petitioner’s
claims alleging ineffective assistance.
A
The petitioner first claims that his trial counsel pro-
vided constitutionally deficient representation by fail-
ing to develop and advance his self-defense claim
pursuant to General Statutes § 53a-19. Specifically, the
petitioner claims that his decision not to testify, made
in reliance on the advice of his trial counsel, prevented
him from developing sufficient evidence to present to
the jury on the issue of whether self-defense was justi-
fied under the circumstances. We disagree.
The substantive principles governing a defendant’s
claim of self-defense are well settled. As interpreted by
our Supreme Court, § 53a-19 (a)5 provides that ‘‘a person
may justifiably use deadly physical force in self-defense
only if he reasonably believes both that (1) his attacker
is using or about to use deadly physical force against
him, or is inflicting or about to inflict great bodily harm,
and (2) that deadly physical force is necessary to repel
such attack.’’ (Emphasis in original.) State v. Prioleau,
235 Conn. 274, 285–86, 664 A.2d 743 (1995).
‘‘We repeatedly have indicated that the test a jury
must apply in analyzing the second requirement, i.e.,
that the defendant reasonably believed that deadly
force, as opposed to some lesser degree of force, was
necessary to repel the victim’s alleged attack, is a sub-
jective-objective one. . . .
‘‘The subjective-objective inquiry into the defendant’s
belief regarding the necessary degree of force requires
that the jury make two separate affirmative determina-
tions in order for the defendant’s claim of self-defense
to succeed. First, the jury must determine whether, on
the basis of all of the evidence presented, the defendant
in fact had believed that he had needed to use deadly
physical force, as opposed to some lesser degree of
force, in order to repel the victim’s alleged attack. . . .
The jury’s initial determination, therefore, requires the
jury to assess the veracity of witnesses, often including
the defendant, and to determine whether the defen-
dant’s account of his belief in the necessity to use deadly
force at the time of the confrontation is in fact credi-
ble. . . .
‘‘If the jury determines that the defendant [did] not
[believe] that he . . . needed to employ deadly physi-
cal force to repel the victim’s attack, the jury’s inquiry
ends, and the defendant’s self-defense claim must fail.
If, however, the jury determines that the defendant in
fact had believed that the use of deadly force was neces-
sary, the jury must make a further determination as to
whether that belief was reasonable, from the perspec-
tive of a reasonable person in the defendant’s circum-
stances. . . . Thus, if a jury determines that the
defendant’s honest belief that he had needed to use
deadly force, instead of some lesser degree of force,
was not a reasonable belief, the defendant is not entitled
to the protection of § 53a-19. . . .
‘‘Furthermore, under General Statutes § 53a-19 (b),6
a person is not justified in using deadly physical force
if he knows that he can avoid the necessity of using
such force with complete safety (1) by retreating . . . .
Thus, a defendant who raises a claim of self-defense is
required to retreat in lieu of using deadly physical force
if the state establishes beyond a reasonable doubt that
a completely safe retreat was available and that the
defendant actually was aware of it.’’ (Citation omitted;
footnote added; internal quotation marks omitted.)
State v. Saunders, 267 Conn. 363, 373–74, 838 A.2d 186,
cert. denied, 541 U.S. 1036, 124 S. Ct. 2113, 158 L. Ed.
2d 722 (2004).
The rules governing the respective burdens borne by
a defendant and the state on the justification of self-
defense have been explained by our Supreme Court.
‘‘[A] defendant has no burden of persuasion for a claim
of self-defense; he has only a burden of production.
That is, he merely is required to introduce sufficient
evidence to warrant presenting his claim of self-defense
to the jury. . . . Once the defendant has done so, it
becomes the state’s burden to disprove the defense
beyond a reasonable doubt. . . . Accordingly, [u]pon
a valid claim of self-defense, a defendant is entitled to
proper jury instructions on the elements of self-defense
so that the jury may ascertain whether the state has
met its burden of proving beyond a reasonable doubt
that the assault was not justified. . . . As these princi-
ples indicate, therefore, only the state has a burden
of persuasion regarding a self-defense claim: it must
disprove the claim beyond a reasonable doubt.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Clark, 264 Conn. 723, 730–31, 826 A.2d 128 (2003).
The petitioner specifically argues that his testimony
was essential to establish his self-defense claim, and
that without his testimony, the jury ‘‘had no evidence
[to consider] as to [the] petitioner’s subjective and
objective state of mind, and his ability to flee.’’ The
petitioner claims that but for trial counsel’s alleged
error, it would have been ‘‘reasonably probable’’ that
‘‘the jury would have concluded [that the] petitioner
acted in self-defense,’’ and, therefore, he was prejudiced
by the error. We are not persuaded.
Our thorough review of the record reveals that the
evidence supports the habeas court’s conclusion that
the petitioner failed to prove that trial counsel’s advice
regarding the decision not to testify was constitutionally
deficient. The evidence before the habeas court con-
sisted of the criminal trial transcripts and the testimony
of the petitioner, Shea, his trial counsel, and Kesten-
band, the petitioner’s expert witness. Shea testified that
he considered calling the petitioner to testify in support
of his self-defense claim, and he engaged in conversa-
tions with the petitioner concerning this decision. Shea
also indicated that he ‘‘didn’t think [the petitioner’s]
story was going to hold up’’ because it ‘‘wasn’t consis-
tent in the times that [the petitioner] related it to [him],’’
and he recalled that, after a discussion with the peti-
tioner regarding this decision, the petitioner and his
counsel ‘‘ultimately agreed that [the petitioner] should
not subject himself to cross-examination,’’ which could
expose inconsistencies in the petitioner’s story. Next,
the petitioner testified that he had expressed an interest
in testifying, but his trial attorney advised him that, in
his professional opinion, it would be unwise for him to
do so. The petitioner further testified that his attorney
did not advise him which portion(s) of his testimony
would likely sound incredible to the jury. Finally, the
petitioner’s attorney expert, Kestenband, opined that
there may be circumstances where it is appropriate for
a defendant not to testify when asserting a self-defense
claim. In making this assessment, Kestenband indicated
that, in his opinion, a reasonable attorney might con-
sider the extent to which ‘‘the cross-examination
[would] bring out damaging information,’’ ‘‘how . . .
the defendant . . . would . . . present as a witness to
the jury,’’ and, most importantly, whether there is ‘‘a
persuasive explanation to the jury that the defendant
subjectively felt that his life was in danger or that he
faced great bodily harm; and if so, can counsel make
a persuasive argument to the jury that the defendant’s
fear was objectively reasonable.’’ Kestenband testified
that it was problematic for the petitioner to rely only
on his statement to Detective Luisa St. Pierre in alleging
self-defense because the written statement did not: (1)
address the petitioner’s subjective state of mind,
namely, as to whether he feared death or great bodily
harm; (2) provide ‘‘anything to guide the jury as to
the objective reasonableness of what his state of mind
was’’; or (3) address ‘‘why [the petitioner] did or did
not feel that he could retreat without using deadly physi-
cal force.’’
In its memorandum of decision, the habeas court,
Cobb, J., ‘‘credit[ed] the testimony of [the] petitioner’s
trial counsel that he explained the risks of testifying to
the petitioner and that the petitioner understood those
risks and agreed that the better strategy would be that
he waive his right to testify at trial.’’ The court also
credited Shea’s testimony that the petitioner was ‘‘very
bright’’ and that the petitioner ‘‘conducted his own legal
research and had opinions about his criminal trial.’’ The
court further found that ‘‘[t]he petitioner exercised his
right not to testify after being properly advised by his
counsel and canvassed by the trial court.’’ In addition,
the court found that ‘‘[a]fter making the decision not
to testify, the petitioner never changed his mind.’’
In assessing the performance prong of Strickland,
we conclude that the habeas court’s determination that
Shea’s decision to advise the petitioner not to testify
was reasonable trial strategy and, accordingly, was not
erroneous. As a preliminary matter, we note that ‘‘[i]t
is the right of every criminal defendant to testify on his
own behalf . . . and to make that decision after full
consultation with trial counsel.’’ (Citation omitted;
internal quotation marks omitted.) Lewis v. Commis-
sioner of Correction, 89 Conn. App. 850, 870, 877 A.2d
11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005);
see Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704,
97 L. Ed. 2d 37 (1987); see also State v. Davis, 199 Conn.
88, 93–94, 506 A.2d 86 (1986). In the present case, Shea
testified that he informed the petitioner that the deci-
sion to take the witness stand was his alone to make.
The record reflects that the trial court canvassed the
petitioner during his criminal trial and, when asked
whether he was aware that he had the right to testify,
the petitioner answered in the affirmative. The court
then confirmed that the petitioner knew that the deci-
sion whether to testify at his criminal trial was his
choice. The petitioner indicated that he opted not to
testify after consulting with his trial counsel. The
habeas court, therefore, did not err in finding that the
petitioner had knowingly, voluntarily, and intelligently
waived his right to testify.
Shea’s testimony at the habeas hearing reflects that
he strategically advised the petitioner not to testify at
the criminal trial in order to prevent the state from
exposing inconsistencies in his testimony during cross-
examination. First, Shea testified that on the basis of
the conversations that he had with the petitioner in
preparation for the criminal trial, Shea believed that
the jury would find the petitioner’s story to be both
inconsistent and incredible. Second, Shea testified that
he was concerned that the petitioner’s testimony would
not be consistent with the oral statement he had pre-
viously made upon his arrest.7 Collectively, these rea-
sons formed the basis of Shea’s opinion that the
petitioner should not testify in support of his self-
defense claim at the criminal trial.
Our review of the record discloses that the evidence
supports the habeas court’s conclusion that the peti-
tioner has failed to prove that trial counsel’s advice
regarding the decision not to testify was deficient. The
petitioner has not demonstrated that ‘‘counsel made
errors so serious that counsel was not functioning as the
counsel guaranteed . . . by the [s]ixth [a]mendment.’’
(Internal quotation marks omitted.) Gaines v. Commis-
sioner of Correction, 306 Conn. 664, 680, 51 A.3d 948(2012). Having found no deficiency as to this claim, it
is unnecessary for this court to determine whether the
petitioner was prejudiced. See Gibson v. Commissioner
of Correction, supra, 118 Conn. App. 873–74. Accord-
ingly, we conclude that the habeas court properly found
that the petitioner had not satisfied his burden with
regard to the performance prong of Strickland with
respect to his trial counsel’s failure to call him to testify
at his criminal trial.
B
The petitioner next claims that his trial counsel ren-
dered ineffective assistance by failing to object to the
trial court’s recitation of the entire statutory definition
of intent, pursuant to § 53a-3 (11),8 when instructing
the jury on the intent required to find the petitioner
guilty on the murder charge. We disagree.
We begin by setting forth the well established stan-
dard of review for claims of instructional impropriety.
‘‘[I]ndividual jury instructions should not be judged in
artificial isolation, but must be viewed in the context
of the overall charge. . . . The pertinent test is whether
the charge, read in its entirety, fairly presents the case
to the jury in such a way that injustice is not done to
either party under the established rules of law. . . .
Thus, [t]he whole charge must be considered from the
standpoint of its effect on the [jurors] in guiding them
to the proper verdict . . . and not critically dissected
in a microscopic search for possible error. . . .
Accordingly, [i]n reviewing a constitutional challenge
to the trial court’s instruction, we must consider the jury
charge as a whole to determine whether it is reasonably
possible that the instruction misled the jury. . . . In
other words, we must consider whether the instructions
[in totality] are sufficiently correct in law, adapted to
the issues and ample for the guidance of the jury.’’
(Citation omitted; internal quotation marks omitted.)
State v. Peeler, 271 Conn. 338, 360–61, 857 A.2d 808(2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L.
Ed. 2d 110 (2005).
Our Supreme Court has recognized that although it
is improper for the court to read the entire statutory
definition of intent to the jury in cases in which the
defendant has been charged with a specific intent crime,
that, in itself, is not dispositive as to whether the jury
may have been misled. See State v. Austin, 244 Conn.
226, 236, 710 A.2d 732 (1998). ‘‘The defendant may pre-
vail on his claim only if it is reasonably possible that
the charge, viewed in its entirety, misled the jury.’’ State
v. Holmes, supra, 75 Conn. App. 737.
The record reveals the following additional facts rele-
vant to the resolution of this claim. When instructing
the jury, the trial court recited the ‘‘engage in conduct’’
portion of the statutory definition of criminal intent.9
Thereafter, the court instructed the jury on the specific
crimes charged. When instructing the jury on the mur-
der charge, the court stated the following:
‘‘The [petitioner] is charged with the crime of murder,
in violation of § 53a-54 of the criminal code, which,
insofar as [is] relevant in this case, provides as follows:
A person is guilty of murder when, with intent to cause
the death of another person, he causes the death of
such person.
‘‘For you to find the [petitioner] guilty of this charge,
the state must prove the following elements beyond a
reasonable doubt. One, that the [petitioner] intended
to cause the death of another person. And, two, that in
accordance with that intent, the [petitioner] caused the
death of that person. . . .
‘‘The state must prove beyond a reasonable doubt
that . . . the [petitioner] caused the death of the victim
with the intent to cause that death.
‘‘I previously discussed the issue of intent required
in this case. [The] state must prove beyond a reasonable
doubt that the [petitioner], in causing the death of the
victim, did so with the specific intent to cause the
death.’’
We note that, after the charge was delivered, Attorney
Shea did not take an exception to the jury instruction
pursuant to Practice Book § 42-16. After deliberating
for a period of time, the jury requested clarification
regarding the definition of intent.10 The trial court then
stated, in relevant part:
‘‘Intent relates to the condition of the mind of the
person who commits the act, his purpose in doing so.
As defined by our statute, a person . . . acts intention-
ally, with respect to a result or conduct, when his con-
scious objective is to cause such a result or to engage
in such conduct. . . .
‘‘The state has to prove beyond a reasonable doubt
that the [petitioner] in this case caused the death of
the victim and did so with the specific intent to cause
death. There’s no particular length of time necessary
for the [petitioner] to have formed that specific intent
to kill. . . .
‘‘The type and number of wounds inflicted, as well
as the instrument used, may be considered as evidence
of the perpetrator’s intent. And from such evidence, an
inference can be drawn in some cases that there was
an intent to cause death.’’
Without objection from Shea, the jury subsequently
was provided with an exact written copy of the intent
and self-defense instructions that were read during the
initial jury instruction. The petitioner accurately notes
that it is impossible for this court to quantify how many
times the jury referred to the written instruction during
deliberations. The court, therefore, on two separate
occasions orally instructed the jury to consider the
entire statutory definition of intent and later provided
the jury with identical written instructions upon its
request.
The habeas court found that ‘‘neither trial counsel
nor appellate counsel rendered ineffective assistance
by failing to challenge the trial court’s jury instructions.’’
The court reasoned that, given the subsequent proper
jury instructions, it was not likely that the jury was
misled on the element of specific intent required to find
the petitioner guilty of murder, namely, the intent to
cause the victim’s death. In reaching this conclusion,
the court noted that ‘‘[w]hile the trial court did improp-
erly read the intent to ‘engage in conduct’ language in
its initial charge to the jury as part of its general defini-
tion of intent and in its reinstruction to the jury, where
it simply reread its initial instructions, the trial court
repeatedly instructed the jury that the state had to prove
that the petitioner caused the death of the victim with
the specific intent to cause his death.’’ The court further
found that ‘‘the trial court instructed the jury approxi-
mately nine times that in order to find the petitioner
guilty of murder, it was required to find that he caused
the death of the victim with the specific intent to cause
his death.’’
On appeal, the petitioner claims that he was preju-
diced by the allegedly deficient performance of Shea,
his trial counsel, in failing to object to the jury charge
on intent.
The petitioner argues that the court’s instruction led
the jury to an incorrect verdict because ‘‘[b]y referring
to conduct as well as result, the jury could have reason-
ably concluded that it was not necessary for the state
to show that [the] petitioner intended the precise harm
to the victim, which was death, but only needed to
prove that [the] petitioner intentionally engaged in the
conduct of shooting the victim.’’ The petitioner further
claims that he was prejudiced because ‘‘the repeated
instruction [reciting the entire statutory definition of
intent] still had a deleterious effect on the jury’s deci-
sion-making process,’’ despite the subsequent delivery
of properly narrowed instructions, and that ‘‘the jury’s
verdict would have been different but for trial counsel’s
failure to challenge the instruction.’’ We do not agree.
The petitioner’s claim that his trial counsel rendered
ineffective assistance is readily dispensed with under
the prejudice prong of Strickland. The trial court orally
instructed the jury on two occasions, reciting the entire
definition of intent as codified in § 53a-3 (11). The jury
was then provided with an exact written copy of these
improper instructions. Subsequently, the court cor-
rectly instructed the jurors, on approximately nine
occasions, that to find the petitioner guilty of murder
in violation of § 53a-54a, they must find that he caused
the death of the victim with the specific intent to cause
his death.
Given the court’s contemporaneous delivery of prop-
erly narrowed instructions on intent, it strains reason
to believe that the jury could have misunderstood the
court’s charge, when viewed in its totality, to require
that the jury base a finding of guilt on anything less
than a finding that the [petitioner] possessed the spe-
cific intent to cause the victim’s death. See State v.
Holmes, supra, 75 Conn. App. 738. Accordingly, on the
basis of the evidence in the record, there does not
exist a reasonable probability that the outcome of the
criminal trial would have been different had trial coun-
sel objected to the jury charge on intent. See Michael
T. v. Commissioner of Correction, 307 Conn. 84, 102,
52 A.3d 655 (2012). Even if the petitioner’s trial attorney
had objected, the petitioner has not shown that the
result of the trial would have been different. The peti-
tioner has not established that his trial counsel’s failure
to object to the jury charge on intent deprived him of
a fair trial. Because the petitioner has failed to demon-
strate that he was prejudiced by any allegedly ineffec-
tive assistance of his trial counsel, we need not address
his claim under the performance prong. See, e.g., John-
son v. Commissioner of Correction, 285 Conn. 556, 579,
941 A.2d 248 (2008).
C
The petitioner also argues that his appellate counsel,
Zitser, was ineffective for failing to challenge on direct
appeal the jury charge on intent. We disagree.
‘‘The petitioner’s burden of proof is the same in the
claim of ineffective assistance of appellate counsel as it
is for ineffective assistance of trial counsel: to establish
that, based upon the totality of the evidence before the
jury and upon the likely effect of the instructional error,
as a result of the error of the trial court . . . there is
a probability sufficient to undermine confidence in the
verdict that he seeks to overturn. . . . In order to dem-
onstrate such a fundamental unfairness or miscarriage
of justice, the petitioner should be required to show that
he is burdened by an unreliable conviction.’’ (Citation
omitted; internal quotation marks omitted.) Porter v.
Commissioner of Correction, 99 Conn. App. 77, 83–84,
912 A.2d 533, appeal dismissed, 284 Conn. 431, 934 A.2d
242 (2007).
The petitioner’s claim that his appellate counsel ren-
dered ineffective assistance similarly fails under the
performance prong of Strickland. In light of the charge,
when viewed as a whole, the petitioner’s appellate coun-
sel was well justified in deciding not to raise a claim
of instructional error on appeal. See State v. Peeler,
supra, 271 Conn. 360–61.
As the habeas court noted, it was ‘‘not reasonably
possible that the jury was misled because the jury
charge, on the whole, correctly informed the jury that
in order to find the petitioner guilty of murder, it had
to find that he possessed the specific intent to cause
the victim’s death.’’ In making this finding, the court
properly considered the totality of the jury instructions
to determine whether the jury was, in fact, misled. See
State v. Guzman, 125 Conn. App. 307, 314–15, 7 A.3d
435 (2010), cert. denied, 300 Conn. 902, 12 A.3d 573(2011). Accordingly, after having reviewed the entire
charge, we conclude that the petitioner has failed to
overcome the strong presumption that, under the cir-
cumstances, his counsel’s failure to challenge the jury
instruction fell within the wide range of reasonable
professional assistance. See Bryant v. Commissioner
of Correction, 290 Conn. 502, 513–14, 964 A.2d 1186,
cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938,
130 S. Ct. 259, 175 L. Ed. 2d 242 (2009). Because we
conclude that the petitioner has failed to demonstrate
that his appellate counsel rendered deficient perfor-
mance in failing to raise a claim of error on appeal that
was based on the trial court’s intent charge, we do
not reach the issue of prejudice, and the petitioner’s
ineffective assistance of counsel claim must fail.
Thus, we conclude that the habeas court abused its
discretion in denying the petition for certification to
appeal. In reviewing the merits of the petitioner’s under-
lying ineffective assistance of counsel claims, however,
we also conclude that the habeas court had before it
sufficient evidence to find, as it did, that the petitioner
failed to establish that either his trial or appellate coun-
sel rendered ineffective assistance.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
2
The habeas court noted the following: ‘‘The petitioner’s third amended
petition includes other claims regarding trial counsel’s conduct that were
withdrawn after the conclusion of evidence, including claims that trial coun-
sel failed to (1) adequately cross-examine, impeach or otherwise challenge
the testimony of Donnette Williams; (2) request a lesser included offense
charge; (3) object to the state’s recitation and explanation of the law of
self-defense in its closing argument; (4) raise a pretextual claim and argument
in the motion to suppress and at the hearing on that motion; and that he
(5) improperly withdrew the petitioner’s suppression claim concerning the
seizure of the weapon before the suppression hearing.’’ The petitioner’s
third amended petition also included a third count alleging prosecutorial
impropriety. The petitioner withdrew that claim during the habeas trial.
3
General Statutes § 52-470 (g) provides: ‘‘No appeal from the judgment
rendered in a habeas corpus proceeding brought by or on behalf of a person
who has been convicted of a crime in order to obtain such person’s release
may be taken unless the appellant, within ten days after the case is decided,
petitions the judge before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated by the Chief Court
Administrator, to certify that a question is involved in the decision which
ought to be reviewed by the court having jurisdiction and the judge so cer-
tifies.’’
4
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 . . . .’’
5
The defense of self-defense is codified in § 53a-19 (a), which provides
in relevant part: ‘‘[A] person is justified in using reasonable physical force
upon another person to defend himself or a third person from what he
reasonably believes to be the use or imminent use of physical force, and
he may use such degree of force which he reasonably believes to be neces-
sary for such purpose; except that deadly physical force may not be used
unless the actor reasonably believes that such other person is (1) using or
about to use deadly physical force, or (2) inflicting or about to inflict great
bodily harm.’’
6
General Statutes § 53a-19 (b) provides: ‘‘Notwithstanding the provisions
of subsection (a) of this section, a person is not justified in using deadly
physical force upon another person if he or she knows that he or she can
avoid the necessity of using such force with complete safety (1) by retreating,
except that the actor shall not be required to retreat if he or she is in his
or her dwelling, as defined in section 53a-100, or place of work and was
not the initial aggressor, or if he or she is a peace officer, a special policeman
appointed under section 29-18b, or a motor vehicle inspector designated
under section 14-8 and certified pursuant to section 7-294d, or a private
person assisting such peace officer, special policeman or motor vehicle
inspector at his or her direction, and acting pursuant to section 53a-22, or
(2) by surrendering possession of property to a person asserting a claim of
right thereto, or (3) by complying with a demand that he or she abstain
from performing an act which he or she is not obliged to perform.’’
7
At the petitioner’s criminal trial, St. Pierre testified as follows: ‘‘[The
petitioner] told me that what happened to his boy was fucked up. And [I]
asked [the petitioner] who was his boy, and [the petitioner] said [the victim].
And I said what happened to [the victim]. That is when [the petitioner] told
me [the victim] came to where he was with another friend, and [the peti-
tioner] and [the victim] had been drinking. [The victim] went to the trunk
of the car, got a gun and came at [the petitioner]. [The petitioner] managed
to get the gun from [the victim]. That is when [the petitioner] shot [the
victim].’’ (Internal quotation marks omitted.) State v. Miller, supra, 67 Conn.
App. 548 n.5.
8
See footnote 4 of this opinion.
9
The court stated, in relevant part: ‘‘Intent relates to the condition of the
mind of the person who commits the act, his purpose in doing so. As defined
by our statute, a person acts intentionally with respect to a result or to
conduct when his conscious objective is to cause such result or to engage
in such conduct.
‘‘What a person’s purpose, intention, or knowledge has been is usually a
matter to be determined by inferences. No person is able to testify that he
looked into another’s mind and saw therein a certain purpose or intention,
or certain knowledge to do harm to another.
‘‘The only way that you as a jury can determine what a person’s purpose,
intention or knowledge was at any given time, aside from that person’s own
statement or testimony, is to determine what the person’s conduct was, or
[what] the circumstances were surrounding that conduct, and from that,
infer his purpose, intention, or knowledge.
‘‘To draw such an inference is not a privilege but the proper function of
the jury, provided, of course, that the inference drawn complies with the
standards for inferences as explained in connection with my instruction on
circumstantial evidence.
‘‘The state must prove beyond a reasonable doubt that the [petitioner], in
causing the death of the victim, did so with the specific intent to cause death.
‘‘There’s no particular length of time necessary for the [petitioner] to have
formed the specific intent to kill.
‘‘I have already discussed the question of intent with you. I’m not going
to repeat it entirely here. But keep in mind the instructions previously given
on this point are applicable. . . .
‘‘The type or manner of the wounds inflicted, as well as the instrument
used, may be considered as evidence of the perpetrator’s intent, and from
such evidence, an inference can be drawn that there was an intent to cause
death. Any inference that may be drawn from the nature of the instrument
used and the manner of its use is an inference of fact to be drawn by the
jury upon consideration of these and other circumstances.’’
10
In addition, the jury also asked for clarification regarding the definition
of self-defense.