James v. Commissioner of Correction ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
ALLEN LAMONT JAMES v. COMMISSIONER OF
CORRECTION
(AC 37032)
Keller, Prescott and Pellegrino, Js.
Argued December 1, 2016—officially released February 21, 2017
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
April E. Brodeur, assigned counsel, for the appel-
lant (petitioner).
Paul J. Narducci, senior assistant state’s attorney,
with whom, on the brief, was Michael L. Regan, state’s
attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Allen Lamont James,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court abused its
discretion by denying his petition for certification to
appeal and that the court improperly determined that
his trial counsel did not provide ineffective assistance
by failing to pursue the petitioner’s trial objective or to
seek a jury instruction on parental discipline/justifica-
tion. Having thoroughly reviewed the record, we con-
clude that the habeas court properly denied the petition
for certification to appeal. Accordingly, we dismiss
the appeal.
The following facts, as set forth by this court on
direct appeal, and procedural history are relevant to
this appeal. ‘‘In the early morning hours of December 28,
2003, Sergeant Brett Mahoney of the Waterford police
department saw a vehicle operated by the [petitioner],
traveling from the Interstate 395 connector onto Route
32 at approximately 100 miles per hour. After a lengthy
pursuit, Mahoney found the vehicle, with the front door
open, stopped on a private driveway in front of a gate.
The [petitioner] had fled into the surrounding wooded
area. After Mahoney called for assistance, the [peti-
tioner] was apprehended as he emerged from the
wooded area and was brought back to the vehicle. A
subsequent search of the wooded area yielded two plas-
tic bags and a suitcase that contained the human
remains of the [petitioner]’s child, Alquan, which the
[petitioner] had taken out of the vehicle and left in the
wooded area.
‘‘After the [petitioner]’s arrest, and while he was in
a police holding cell, he requested to speak with detec-
tives. After being advised of his Miranda rights, the
[petitioner] gave two distinctly different versions
regarding Alquan’s death.
‘‘The first version was that Alquan had a tendency to
fall and hit his head, and that in the summer or fall of
2000, Alquan had fallen down and hit his head on a bed
railing. The [petitioner] took him out to a friend’s car,
where he turned blue, whereupon the [petitioner] took
him back to his house and laid him down, but Alquan
did not wake up. When asked whether he had ever
struck Alquan, the [petitioner] admitted that he had
done so but continued to insist that Alquan’s death was
an accident.
‘‘The second version was in response to a question by
the police as to whether Alquan’s death was accidental,
intentional, out of frustration or spontaneous. The [peti-
tioner] said that it was spontaneous. He said that Alquan
had not been listening to him and that he grabbed
Alquan, threw him across the room and against the wall
two or three times, backhanded him across the chest
or face, and manhandled him on the shoulder. He then
administered chest compressions and attempted
mouth-to-mouth resuscitation on Alquan, who did not
respond. The [petitioner] did not seek medical attention
for Alquan or call 911.
‘‘The [petitioner] stated that after Alquan’s death, he
took his body in a suitcase to Santee, South Carolina,
where he brought it to a vacant area, poured gasoline
on it and lit it on fire. When the body did not burn, he
put it into garbage bags, which he then put into a suit-
case, put the suitcase into the trunk of his car, and
eventually drove back to New London, where he kept
the remains at his house. On several occasions, he had
taken Alquan’s body out for rides, which is what he
was doing when he was apprehended on December 28,
2003. He stated that, while being pursued by the police,
he stopped the car and brought the suitcase into the
wooded area with the intent of turning himself in and
later returning to retrieve the suitcase.
‘‘The next day, on December 29, 2003, the [petitioner]
again asked to speak with detectives. He then gave a
third version of Alquan’s death. This version was that
he never intended to hurt Alquan but needed help in
caring for him. He stated that Alquan was not eating
and that the [petitioner] forced him to eat. When Alquan
refused and spit out the food, the [petitioner] threw
him on the bed, and Alquan bounced off and hit his
head on the floor. He then forcibly pushed down on
Alquan’s shoulders, and Alquan hit his head on the floor.
When Alquan did not get up, he tried to perform mouth-
to-mouth resuscitation, but Alquan did not respond. He
then repeated the story of bringing Alquan’s body to
South Carolina, unsuccessfully trying to burn it, and
returning with it to Connecticut.’’ (Footnotes omitted.)
State v. James, 126 Conn. App. 221, 224–26, 11 A.3d
717, cert. denied, 300 Conn. 921, 14 A.3d 1005 (2011).
Thereafter, the petitioner ‘‘was charged in a substi-
tute information with murder in violation of General
Statutes § 53a-54a, capital felony in violation of General
Statutes § 53a-54b (8), interfering with a police officer
in violation of General Statutes (Rev. to 2003) § 53a-
167a, engaging police in pursuit in violation of General
Statutes § 14-223 (b) and reckless driving in violation
of General Statutes § 14-222 (a).’’ Id., 223–24. ‘‘Through
his own testimony at [his jury] trial, the [petitioner]
gave a fourth version of Alquan’s death. This version
was that one Sunday afternoon, as he was about to feed
Alquan, Alquan collapsed in his hands. He laid Alquan
down for about five minutes and then tried to resusci-
tate him. He did not seek medical attention or call 911.
He then drove to South Carolina, where he tried to burn
Alquan’s body. He also stated that he stomped on the
body several times because it did not burn as he had
anticipated.
‘‘The state medical examiner and a forensic anthro-
pologist examined Alquan’s remains. This examination
disclosed numerous fractures of various bones, includ-
ing several fractures to the bones on each side of the
head, fractures of the bone at the base of the skull, the
lower jawbone, both collarbones, the second through
the fifth ribs on the left side, and several finger bones.
According to these witnesses, these injuries would have
been caused by multiple blows and were inconsistent
with falling from a bed or hitting one’s head on a bed
rail. According to the medical examiner, the cause of
death was multiple blunt injuries and the manner of
death was homicide.
‘‘A medical examiner who also was an independent
consultant dealing with forensic issues regarding deaths
of children testified for the defense. After examining
Alquan’s pediatric medical records, statements, police
reports, photographs, the reports of the state medical
examiner and the state’s forensic anthropologist, and
Alquan’s remains, she was unable to determine the
cause or manner of Alquan’s death because of the condi-
tion of the bones and the postmortem decomposition
and disruption of the body, including the burning,
stomping and movement of the body.’’ Id., 227.
Following trial, the petitioner was found ‘‘guilty of
the lesser included offense of manslaughter in the first
degree in violation of General Statutes § 53a-55 (a) (3),
and of interfering with an officer in violation of § 53a-
167a, engaging police in pursuit in violation of § 14-223
and reckless driving in violation of § 14-222. The court
rendered its judgment of conviction and sentenced the
[petitioner] to an effective term of fourteen years of
incarceration followed by four years of special parole.’’
Id., 224. On direct appeal, this court affirmed the peti-
tioner’s judgment of conviction. Id., 231.
Thereafter, on July 12, 2011, the petitioner filed this
habeas action. In a second amended petition for a writ
of habeas corpus dated May 19, 2014, the petitioner
alleged ineffective assistance of trial counsel.1 More
specifically, the petitioner claimed that the perfor-
mance of his two trial attorneys, Bruce Sturman and
M. Fred DeCaprio, was deficient because they failed to
notify and consult with the petitioner regarding instruc-
tions on lesser included offenses that the court had
decided sua sponte to give the jury, failed to adequately
explain to him the impact of those instructions, failed
to request a jury charge on parental discipline, and made
statements during closing summation that indicated the
petitioner’s guilt as to the lesser included offenses. On
June 3, 2014, the habeas court, Fuger, J., held a trial
at which it heard testimony from DeCaprio2 and the peti-
tioner.
Following the trial, the habeas court denied the peti-
tion for a writ of habeas corpus. In its written memoran-
dum of decision dated June 5, 2014, the court concluded
that the decision of the petitioner’s trial attorneys to
acquiesce to the lesser included offense instruction
without consulting him was not deficient performance
because it was a ‘‘reasonable, prudent, and . . . sound
tactical decision’’ belonging to defense counsel and not
the client, and that the petitioner did not suffer preju-
dice by his defense counsel failing to request an instruc-
tion on parental justification because, given the facts
of the case, it is unlikely the trial judge would have
agreed to give such an instruction.3 On June 13, 2013, the
petitioner sought certification to appeal to this court,
which the habeas court denied. This appeal followed.
Additional facts will be set forth as necessary.
Prior to addressing the petitioner’s claims on appeal,
we set forth the applicable standard of review and guid-
ing legal principles. ‘‘Faced with a habeas court’s denial
of a petition for certification to appeal, a petitioner can
obtain appellate review of the dismissal of his petition
for habeas corpus only by satisfying the two-pronged
test enunciated by our Supreme Court in Simms v.
Warden, 229 Conn. 178, 640 A.2d 601 (1994), and
adopted in Simms v. Warden, 230 Conn. 608, 612, 646
A.2d 126 (1994). First, he must demonstrate that the
denial of his petition for certification constituted an
abuse of discretion. . . . Second, if the petitioner can
show an abuse of discretion, he must then prove that
the decision of the habeas court should be reversed on
the merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further.’’ (Internal
quotation marks omitted.) Riddick v. Commissioner of
Correction, 113 Conn. App. 456, 459, 966 A.2d 762,
appeal dismissed, 301 Conn. 51, 19 A.3d 174 (2011).
‘‘In determining whether the habeas court abused its
discretion in denying the petitioner’s request for certifi-
cation, we necessarily must consider the merits of the
petitioner’s underlying claims to determine whether the
habeas court reasonably determined that the petition-
er’s appeal was frivolous.’’ (Internal quotation marks
omitted.) Taft v. Commissioner of Correction, 159
Conn. App. 537, 544, 124 A.3d 1, cert. denied, 320 Conn.
910, 128 A.3d 954 (2015).
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
[T]he habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight
to be given to their testimony. . . . The application of
the habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Citations
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 677, 51
A.3d 948 (2012).
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984). Strickland requires that a petitioner satisfy both
a performance prong and a prejudice prong. To satisfy
the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment [to the United States constitution].
. . . To satisfy the prejudice prong, a claimant must
demonstrate that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of
the proceeding would have been different. . . . The
claim will succeed only if both prongs are satisfied.
. . . It is well settled that [a] reviewing court can find
against a petitioner on either ground, whichever is eas-
ier.’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) Small v. Commissioner of
Correction, 286 Conn. 707, 712–13, 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).
I
The petitioner first claims that the habeas court
improperly determined that the petitioner’s trial coun-
sel did not render ineffective assistance by failing to
pursue the petitioner’s trial objective to proceed ‘‘all
or nothing’’ on the murder charges. Specifically, the
petitioner argues that it was deficient performance for
his trial counsel not to inform him of, nor consult with
him about, the court’s sua sponte decision to instruct
the jury regarding lesser included offenses to murder,
and that the habeas court used the wrong standard in
conducting its analysis of this claim under the prejudice
prong of the Strickland test. We are not persuaded.
The following additional facts and procedural history
are relevant to this claim. At the underlying criminal
trial, the judge instructed the jury on the offense of
murder in violation of § 53a-54a (a)4 and proceeded to
state: ‘‘If, however, you unanimously find that the state
has not proven each of the essential elements of the
crime of murder, you shall then consider the lesser
included offense of manslaughter in the first degree,
§ 53a-55 (a) (1), which offense I will now instruct you
upon.’’ Thereafter, having instructed the jury on § 53a-
55 (a) (1), the judge continued: ‘‘If, however, you find
that the state has failed to prove beyond a reasonable
doubt each and every essential element of this lesser
included offense, you shall then consider the separate
lesser included offense of manslaughter in the first
degree, § 53a-55 (a) (3), a separate crime which I will
now instruct you upon.’’5
At the habeas trial, the petitioner argued that because
the client, not the attorney, ‘‘gets to pick the objective’’
of the case under the Rules of Professional Conduct,
and because the inclusion of lesser included offenses
in the jury instructions was not discussed with the peti-
tioner, thereby undermining his objective to proceed
‘‘all or nothing’’ on the murder charges, ‘‘[t]here was
either a disconnect or a lack of communication between
the petitioner and his objective and his attorneys and
their strategy’’ that constituted deficient performance
under Strickland. In support of this claim, the petitioner
offered the testimony of DeCaprio, who attested that
the petitioner had discussed his objective of the case—
which DeCaprio described as ‘‘to fight the charges and
. . . be acquitted’’—with defense counsel. When asked
about the lesser included offense instruction given at
trial, DeCaprio testified that he and his cocounsel had
considered the strategy of including those instructions
‘‘early on, maybe before the trial even started,’’ and
concluded that they were appropriate because ‘‘the risk
of going all or nothing in effect was huge in light of the
facts that we had and that . . . one of our jobs as
counsel was to make that decision and . . . we felt
that that was the way to go.’’
In rejecting the petitioner’s claim, the habeas court
made the following findings of fact: ‘‘At the charging
conference, the trial judge, [Shimelman, J.], informed
both the prosecutors and the defense counsel that he,
sua sponte, intended to give a lesser included offense
instruction on manslaughter. . . . DeCaprio and Stur-
man concurred in that course of action.’’ The habeas
court also found that ‘‘[t]he petitioner . . . wanted to
have this case presented as an ‘all or none’ proposition
to the jury. He felt that he was not guilty of murdering
his son and that if that was the decision that the jury
had to make, then they would, of course, acquit him.
His goal in this case was to be exonerated. . . . DeCa-
prio credibly testified that it is his practice to discuss
jury instructions and closing arguments with his clients,
however, he was unable to testify with any certainty
that he did, in fact, do so in this particular case.’’ Despite
DeCaprio’s uncertainty, the habeas court nevertheless
concluded that even if defense counsel had not dis-
cussed the lesser included offense instruction with the
petitioner, their failure to do so was ‘‘not dispositive
of the issue’’ because ‘‘[j]ury instructions are clearly
within the area of decisions made by lawyers.’’ More-
over, the habeas court determined that it was not unrea-
sonable for defense counsel to decline objecting to the
trial court’s decision to give the instruction sua sponte
on the ground that they were ‘‘fearful that a jury would
convict of murder if presented with an all or nothing
proposition.’’
With regard to the first prong of the Strickland test,
‘‘the performance inquiry must be whether counsel’s
assistance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s perfor-
mance must be highly deferential. It is all too tempting
for a defendant to second-guess counsel’s assistance
after conviction 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 omission of counsel was unreasonable. . . . A
fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of coun-
sel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s con-
duct falls within the wide range of reasonable profes-
sional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the
challenged action might be considered sound trial strat-
egy. . . . There are countless ways to provide effective
assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client
in the same way.’’ (Citations omitted; internal quotation
marks omitted.) Strickland v. Washington, supra, 466
U.S. 688–89.
‘‘[O]ur review of an attorney’s performance is espe-
cially deferential when his or her decisions are the result
of relevant strategic analysis. . . . Thus, [a]s a general
rule, a habeas petitioner will be able to demonstrate that
trial counsel’s decisions were objectively unreasonable
only if there [was] no . . . tactical justification for the
course taken.’’ (Citation omitted; internal quotation
marks omitted.) Spearman v. Commissioner of Correc-
tion, 164 Conn. App. 530, 540–41, 138 A.3d 378, cert.
denied, 321 Conn. 923, 138 A.3d 284 (2016).
This court has previously ‘‘concluded in Reeves [v.
Commissioner of Correction, 119 Conn. App. 852, 862,
989 A.2d 654, cert. denied, 296 Conn. 906, 992 A.2d 1135(2010)] that the decision [of whether to request a lesser
included offense instruction] is in the realm of strategy
decisions to be made by the attorney.’’ (Internal quota-
tion marks omitted.) Franko v. Commissioner of Cor-
rection, 165 Conn. App. 505, 526–27 n.11, 139 A.3d 798(2016). Moreover, in evaluating such decisions, our
appellate courts have looked to whether the decision
was reasonable under the circumstances. See, e.g., Fair
v. Warden, 211 Conn. 398, 405–406, 559 A.2d 1094, cert.
denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514(1989) (‘‘[t]rial counsel . . . testified at the habeas
hearing that he did not pursue a lesser included offense
instruction because he believed there was overwhelm-
ing evidence supporting the robbery charge’’ and it was
‘‘very important for [him] to preserve some integrity
with the jury’’ [internal quotation marks omitted]);
Franko v. Commissioner of Correction, supra, 165
Conn. App. 524 (‘‘the petitioner’s trial counsel, by not
seeking a lesser included offense instruction on unlaw-
ful restraint, tried to capitalize on the state’s decision
to charge the petitioner only with kidnapping in the
second degree, which we determine to be a reasonable
trial strategy’’); Reeves v. Commissioner of Correction,
supra, 119 Conn. App. 862 (‘‘[i]t may be sound trial
strategy not to request a lesser included offense instruc-
tion, hoping that the jury will simply return a not guilty
verdict’’ [internal quotation marks omitted]); McClam
v. Commissioner of Correction, 98 Conn. App. 432, 438,
909 A.2d 72 (2006), cert. denied, 281 Conn. 907, 916
A.2d 49 (2007) (‘‘[o]n the basis of [the state’s substantial]
evidence, defense counsel requested that a lesser
included offense be considered in order to afford the
petitioner a more favorable outcome should the court
find the state’s case more convincing’’).
In the present case, therefore, defense counsel acted
well within their authority by making the conscious
decision not to object to the trial court’s sua sponte
instruction on lesser included offenses, because that
decision ‘‘is in the realm of strategy decisions to be
made by the attorney.’’ (Internal quotation marks omit-
ted.) Franko v. Commissioner of Correction, supra,
165 Conn. App. 526–27 n.11. Although ‘‘certain decisions
regarding the exercise of waiver of basic trial rights
are of such moment that they cannot be made for the
defendant by a surrogate,’’ i.e., the decision ‘‘to plead
guilty, waive a jury, testify in his or her own behalf, or
take an appeal,’’ the decision to acquiesce to a lesser
included offense instruction is not one of them, and
thus the defense attorneys were not obligated to ‘‘both
consult with the defendant and obtain consent to the
recommended course of action.’’ (Internal quotation
marks omitted.) Florida v. Nixon, 543 U.S. 175, 187,
125 S. Ct. 551, 160 L. Ed. 2d 565 (2004).
Moreover, the petitioner is unable to overcome the
strong presumption that the challenged strategic action
might be considered reasonable under the circum-
stances. At the habeas trial, DeCaprio made clear that,
due to the nature of the state’s evidence against his
client, defense counsel did not object to the lesser
included offense instruction ‘‘in order to afford the peti-
tioner a more favorable outcome should the court find
the state’s case more convincing,’’ a motive that this
court has previously deemed to be reasonable. McClam
v. Commissioner of Correction, supra, 98 Conn. App.
438. As the habeas court noted, ‘‘[t]he facts of this
particular case are horrendous, chilling, and bespeak
cruelty and lack of respect for the life of poor Alquan.
The bizarre act of keeping the victim’s remains in a
suitcase, taking them out for rides, the inconsistent
explanations as to how the death occurred, and the
long list of injuries this child suffered at the hands of
the petitioner all add up to a strong likelihood that the
petitioner was unlikely to get his wish and be totally
acquitted.’’ In addition, DeCaprio testified that the deci-
sion to acquiesce to these instructions was not made
hastily, as he and Sturman considered the strategy of
including the instructions ‘‘early on, maybe before the
trial even started.’’ Accordingly, we conclude that the
petitioner has failed to show that his defense counsels’
performance was not sound trial strategy.
We acknowledge that the petitioner attempts to avert
the aforementioned case law on lesser included
offenses by framing this claim as one of trial counsel
failing to advance the petitioner’s case objective in dero-
gation of the Rules of Professional Conduct. Rule 1.2
(a) of the Rules of Professional Conduct provides in
relevant part: ‘‘[A] lawyer shall abide by a client’s deci-
sions concerning the objectives of representation and
. . . shall consult with the client as to the means by
which they are to be pursued. . . . In a criminal case,
the lawyer shall abide by the client’s decision, after
consultation with the lawyer, as to a plea to be entered,
whether to waive jury trial and whether the client will
testify. . . .’’ In response to this argument, we first
point out that, at the habeas trial, DeCaprio testified
that the petitioner’s objective was ‘‘to fight the charges
and . . . be acquitted,’’ an objective that the habeas
court concluded defense counsel indeed ‘‘forcibly’’
argued for during closing argument at the underlying
criminal trial.6 More significantly, however, we agree
with the habeas court’s assessment that this claim is
merely ‘‘a more eloquently stated variation on the
refrain that one hears frequently at habeas hearings
where inmates state ‘my lawyer works for me and has
to do what I say.’ . . . A lawyer [however] is not
required to blindly follow the mandates of his or her
client, although consultation with the client and expla-
nation to the client goes a long way to prevent misunder-
standings and bad feelings between lawyer and client.’’
To conclude otherwise would broaden the scope of
a client’s objective to the point that it eliminates an
attorney’s ability to make many necessary and
important professional and strategic decisions in the
course of his or her representation.
In sum, the petitioner’s claim founders on the perfor-
mance prong of the Strickland test, and, therefore, we
need not address the prejudice prong.7 On the basis of
this record, we are not persuaded that this claim is
debatable among jurists of reason, that a court could
resolve the issue in a different manner, and that the
question deserves encouragement to proceed further.
See Simms v. Warden, supra, 230 Conn. 616. Accord-
ingly, we conclude that the court did not abuse its
discretion by denying the petition for certification to
appeal this claim.
II
The petitioner next claims that the habeas court
improperly determined that the petitioner’s trial coun-
sel did not render ineffective assistance by failing to
seek a jury instruction on parental discipline/justifica-
tion pursuant to General Statutes § 53a-18 (1) although
the facts of the case supported it. In response, the
respondent, the Commissioner of Correction, contends
that defense counsels’ decision not to seek the instruc-
tion was reasonable trial strategy, and that, even if they
should have requested the instruction, it is not reason-
ably probable that the result of the underlying criminal
trial would have been different. We agree with the
respondent that the petitioner failed to satisfy the preju-
dice prong of the Strickland test.
The following additional facts and procedural history
are relevant to this claim. At the habeas trial, DeCaprio
testified that he and Sturman did not ‘‘seriously’’ con-
sider seeking an instruction on parental justification
because they did not think it was appropriate. He
explained that this was due to ‘‘the nature of the facts
that we’ve—that have already come out here and there
also is the issue . . . of credibility of the defense,’’
stating: ‘‘[T]he danger to me was that by requesting
something like that, which we felt was based on, you
know, many of the statements that were given based
on some of the forensics, I think it would have seriously
damaged the—the argument to the jury that this was,
you know, accidental, which was really the thrust of
it.’’ Moreover, DeCaprio testified that although he
believed the petitioner had indicated in some of his out-
of-court statements to police that he had been disciplin-
ing Alquan when the child died, the petitioner did not
do so on the witness stand at his underlying criminal
trial, instead testifying for the jury that Alquan had
collapsed in his arms.
Subsequent to the trial, the habeas court concluded:
‘‘Given the severity of the injuries sustained by the
victim in this case [and] the statements . . . the peti-
tioner made to the police, it is clear that whether or
not the petitioner was attempting to discipline the vic-
tim, there is no way that one could find this to be
‘reasonable physical force’ as contemplated by . . .
§ 53a-18. Consequently it is most unlikely that even if
requested Judge Shimelman would have given a paren-
tal discipline instruction.’’
The following legal principles guide our analysis of
this claim. ‘‘With respect to the prejudice component
of the Strickland test, the petitioner must demonstrate
that counsel’s errors were so serious as to deprive the
[petitioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but for
the counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . When a [petitioner] chal-
lenges a conviction, the question is whether there is
a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respect-
ing guilt.’’ (Internal quotation marks omitted.) Minor
v. Commissioner of Correction, 150 Conn. App. 756,
761–62, 92 A.4d 1008, cert. denied, 314 Conn. 903, 99
A.3d 1168 (2014).
General Statutes § 53a-18 provides in relevant part:
‘‘The use of physical force upon another person which
would otherwise constitute an offense is justifiable and
not criminal under any of the following circumstances:
(1) A parent, guardian or other person entrusted with
the care and supervision of a minor . . . may use rea-
sonable physical force upon such minor . . . when and
to the extent that he reasonably believes such to be
necessary to maintain discipline or to promote the wel-
fare of such minor . . . .’’ We highlight the fact that
‘‘[t]he commission to revise the criminal statutes, in
drafting our Penal Code, specifically recommended that
reasonable be inserted before physical force every time
the latter phrase occurred in any justification provision.
. . . [A]ny analysis of reasonableness must consider a
variety of factors and . . . such an inquiry is case spe-
cific. Indeed this court has held that, [i]n determining
. . . what is a reasonable punishment, various consid-
erations must be regarded, the nature of the offence,
the apparent motive and disposition of the offender,
the influence of his example and conduct upon others,
and the sex, age, size and strength of the pupil to be
punished.’’ (Citations omitted; internal quotation marks
omitted.) State v. Nathan J., 294 Conn. 243, 255–56, 982
A.2d 1067 (2009).
‘‘[A] justification defense, including the parental justi-
fication defense, is an element of a criminal prosecution
on which the state bears the burden of proof. . . . The
defendant, however, bears the initial burden of produc-
ing sufficient evidence to warrant submitting a defense
to the jury . . . but may rely on evidence adduced
either by himself or by the state to meet this evidentiary
threshold. . . . To satisfy this burden, the evidence
adduced at trial must be sufficient to raise a reasonable
doubt in the mind of a rational juror as to whether the
defendant’s actions were justified. . . . This burden is
slight, however, and may be satisfied if there is any
foundation in the evidence [for the defendant’s claim],
no matter how weak or incredible . . . .’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Id., 261–62. ‘‘[I]n reviewing the trial court’s
rejection of the defendant’s request for a jury charge
. . . we . . . adopt the version of the facts most favor-
able to the defendant [that] the evidence would reason-
ably support.’’ (Internal quotation marks omitted.) State
v. Bryan, 307 Conn. 823, 836, 60 A.3d 246 (2013).
Turning to the present case, even if we were to
assume without deciding that the petitioner’s trial coun-
sel performed deficiently in failing to request an instruc-
tion on parental justification pursuant to § 53a-18 (1),
the petitioner cannot succeed unless he also satisfies
the prejudice prong of the Strickland test. Specifically,
the petitioner has to show that there is a reasonable
probability that the result of the trial would have been
different. The habeas court found that there was no
reasonable probability that the trial judge would have
granted the request for the defense instruction under
the evidence produced in this case.
As previously discussed in this opinion, although the
petitioner testified to the jury that Alquan suddenly
collapsed and died in his hands as the petitioner was
about to feed him, two of the other three versions that
the petitioner had given to police indicated that the
petitioner used physical force in response to what he
characterized as Alquan’s misbehavior.8 In one of those
versions, the petitioner told police that ‘‘Alquan had not
been listening to him and that he grabbed Alquan, threw
him across the room and against the wall two or three
times, backhanded him across the chest or face, and
manhandled him on the shoulder.’’ State v. James,
supra, 126 Conn. App. 225–26. In the other, the peti-
tioner told police that ‘‘Alquan was not eating and that
the [petitioner] forced him to eat. When Alquan refused
and spit out the food, the [petitioner] threw him on the
bed, and Alquan bounced off and hit his head on the
floor. He then forcibly pushed down on Alquan’s shoul-
ders, and Alquan hit his head on the floor.’’ Id., 226.
In no way does this evidence, coupled with the evi-
dence of Alquan’s injuries, suggest that the petitioner’s
punishment of Alquan was reasonable under the cir-
cumstances. Alquan was a young child9 at the time of
his death; the petitioner was an adult man. Alquan alleg-
edly did not comply with what the petitioner was asking
of him; the petitioner allegedly responded, under either
of these scenarios, with a violent assault by throwing
Alquan’s body, shoving his shoulders, and causing him
head trauma.
It is difficult to imagine a situation in which a parent
would ever be legally justified in using deadly physical
force to discipline a child. See 59 Am. Jur. 2d 219, Parent
and Child § 25 (2012) (‘‘[i]n the context of a statute
giving parents the right to use reasonable force to disci-
pline their children, the use of force creating a substan-
tial risk of death, serious bodily injury, disfigurement,
or gross degradation is per se unreasonable when used
for disciplinary purposes,’’ citing Simons v. State, Dept.
of Human Services, 803 N.W.2d 587, 594 [N.D. 2011]);
see also State v. Kimberly B., 699 N.W.2d 641, 649 (Wis.
Ct. App. 2005). Because the petitioner could not meet
his initial burden of producing sufficient evidence to
warrant submitting a parental justification defense to
the jury, there is not a reasonable probability that, even
if the petitioner’s defense counsel had requested such
an instruction, the trial judge would have granted it.
Because there is not a reasonable probability that the
trial judge would have given the instruction, the peti-
tioner cannot show that there is a reasonable probabil-
ity that the result of the proceeding would have been
different.
On the basis of this record, this claim is not debatable
among jurists of reason, a court could not resolve the
issue in a different manner, and the question does not
deserve encouragement to proceed further. We, there-
fore, conclude that the court did not abuse its discretion
by denying the petition for certification to appeal this
claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner’s second amended petition also alleges a claim of ineffec-
tive assistance against his appellate counsel, but that claim was later with-
drawn unilaterally by the petitioner, prior to the habeas trial.
2
Habeas counsel for the petitioner indicated to the habeas court that
Sturman, DeCaprio’s cocounsel in the underlying criminal trial, had been
subpoenaed to testify at the habeas trial, but was unavailable to attend
because he was out of state. Because DeCaprio and Sturman had ‘‘made
joint decisions; acted jointly’’ on the underlying case, however, the petition-
er’s habeas counsel stated that ‘‘it was [her] understanding that Attorney
DeCaprio’s testimony should be sufficient . . . .’’
3
The habeas court also concluded in its memorandum of decision that
the petitioner was incorrect in asserting that his defense counsel argued
during closing summation for his conviction on the lesser included offenses,
because defense counsel never conceded such and forcibly argued for a total
acquittal. That aspect of the claim is not being appealed in the present case.
4
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person . . . .’’
5
General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree when: (1) With intent to cause
serious physical injury to another person, he causes the death of such person
or of a third person . . . or (3) under circumstances evincing an extreme
indifference to human life, he recklessly engages in conduct which creates
a grave risk of death to another person, and thereby causes the death of
another person.’’
6
Specifically, the habeas court wrote in its memorandum of decision that
although ‘‘[t]he closing argument does state that, at worst, the petitioner
was reckless in his conduct towards the victim . . . Sturman in no way
concedes that point. He argues forcibly for a total acquittal clearly addressing
the murder charge.’’
7
Because we do not reach the prejudice inquiry of the Strickland test,
we need not decide the petitioner’s claim that the habeas court applied the
wrong standard by ‘‘requiring that the petitioner prove that he would have
been acquitted’’ instead of requiring him to show ‘‘that there is a reasonable
probability that, but for counsel’s . . . errors, the result of the proceeding
would have been different.’’
8
We note that only portions of the transcripts from the underlying criminal
proceeding were provided to the habeas court, thereby circumscribing our
review of this matter. See Santaniello v. Commissioner of Correction, 152
Conn. App. 583, 589–90, 99 A.3d 1195, cert. denied, 314 Conn. 937, 102 A.3d
1115 (2014). Specifically, the petitioner did not submit to the habeas court
any portions from his case-in-chief or the state’s case-in-chief. Accordingly,
the petitioner’s characterization of the evidence presented at the underlying
criminal trial, e.g., that one of his versions of Alquan’s death included Alquan
attempting to run out of a door into a busy street before being pulled back
to safety by the petitioner, lacks support in this record.
9
Based on the record from the underlying criminal trial, it appears that
Alquan was between the ages of two and three and one-half years old, was
about two and one-half to three feet tall, and weighed forty to sixty pounds.