Chance v. Commissioner of Correction

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NOEL CHANCE v. COMMISSIONER OF CORRECTION
(AC 39952)
DiPentima, C. J., and Alvord and Mihalakos, Js.
Syllabus
The petitioner, who had been convicted of, inter alia, kidnapping in the
second degree, sought a writ of habeas corpus, claiming that his trial
counsel had provided ineffective assistance by failing to present accurate
jury instructions to the trial court, in accordance with State v. Salamon
(287 Conn. 509). The petitioner also claimed that trial counsel provided
ineffective assistance by failing to file a motion to suppress certain
incriminating statements that the petitioner had made to the police at
his home. The habeas court rendered judgment denying the habeas
petition and, thereafter, denied the petition for certification to appeal,
and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal; the resolution of the petitioner’s underlying claim
of ineffective assistance of trial counsel involved issues that were not
debatable among jurists of reason, could not have been resolved by a
court in a different manner and were not adequate to deserve encourage-
ment to proceed further.
2. The habeas court properly determined that the petitioner failed to demon-
strate that his trial counsel rendered ineffective assistance:
a. The petitioner failed to present a sound basis on which this court
could conclude that his trial counsel’s conduct fell outside the wide range
of reasonable professional assistance with respect to the kidnapping
instruction; the habeas court found that trial counsel’s decision to accept
the jury instruction on kidnapping, as given by the court, was the product
of much thought and discussion among the trial judge, prosecutor and
trial counsel, and, therefore, was not outside of reasonably acceptable
professional conduct, and the petitioner offered no expert testimony or
sound legal theory to support his claim that because trial counsel was
applying new law, he was uncertain if Salamon was going to remain
good law and should not have allowed the proposed instruction.
b. The petitioner failed to demonstrate that his trial counsel rendered
ineffective assistance by failing to file a motion to suppress the incrimi-
nating statements made by the petitioner to law enforcement prior to
Miranda warnings; the evidence that was adduced at the criminal trial
and the habeas hearing indicated that there was not a sufficient show
of police force that would have led a reasonable person, in his home,
to believe that he was in custody for the purposes of Miranda.
Argued April 11—officially released September 4, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Kinga A. Kostaniak, assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were David S. Shepack, state’s attorney,
and Kelly A. Masi, senior assistant state’s attorney, for
the appellee (respondent).
Opinion
MIHALAKOS, J. The petitioner, Noel Chance, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his second amended petition for a writ of habeas cor-
pus. On appeal, the petitioner claims that the habeas
court (1) abused its discretion in denying his petition
for certification to appeal from the denial of his second
amended petition, and (2) improperly concluded that
he failed to establish that his trial counsel rendered
ineffective assistance. We conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal and, accordingly, dismiss the
petitioner’s appeal.
The following facts and procedural history are rele-
vant to our disposition of the petitioner’s appeal. This
court’s decision in the petitioner’s direct appeal in State
v. Chance, 147 Conn. App. 598, 83 A.3d 703, cert. denied,
311 Conn. 932, 87 A.3d 580 (2014), sets forth the follow-
ing facts. ‘‘From the spring of 2006 through the summer
of 2007, the [petitioner] regularly drove around rural
areas of Litchfield County in his pickup truck with his
black Labrador retrievers and followed female joggers.
. . . After receiving complaints, police officers talked
to the [petitioner] on three separate occasions and
warned him that his conduct was alarming female jog-
gers. On March 30, 2007, after receiving one witness’
complaint and determining that the license plate num-
ber the witness provided was registered to the [peti-
tioner], Troopers Jason Uliano and Cono D’Elia
contacted the [petitioner]. When the troopers informed
the [petitioner] that his actions were alarming female
joggers, the [petitioner] indicated that he understood
and said that ‘he would drive somewhere else, he
wouldn’t do that anymore.’ . . .
‘‘On August 11, 2007, the five foot tall, ninety pound,
fourteen year old victim in this case was jogging on a
secluded road in Litchfield.1 The [petitioner], who was
driving in his truck with his dog, started following the
victim. The [petitioner] slowed down and asked her if
she wanted a ride. When she refused, the [petitioner]
stopped his truck on the side of the road, exited his
truck, and chased her. The [petitioner] grabbed her by
her ponytail causing her to fall face down on the side
of the road. The [petitioner] then engaged in a struggle
with the victim that, according to testimony, lasted
approximately five minutes. The [petitioner] wrapped
his arms around her, touching her breasts, and tried to
pick her up. The victim fought back and screamed. The
[petitioner] covered her mouth to suppress her screams,
told her to shut up, and attempted to pick her up. The
victim began ‘heaving,’ unable to catch her breath. The
[petitioner] released the victim, backed away, and asked
her if she was okay. The victim responded, ‘just leave,’
and, ‘please leave.’ When the [petitioner] turned and
walked toward his truck, the victim ran into a wooded
area and hid. The victim attempted to call her mother
from her cell phone, but was unable to reach her. She
then called 911. State troopers arrived at the scene and
aided the victim.’’2 (Footnote in original.) Id., 601–604.
The state charged the petitioner with kidnapping in
the first degree in violation of General Statutes § 53a-
92 (a) (2) (A); kidnapping in the second degree in viola-
tion of General Statutes § 53a-94; attempt to commit
kidnapping in the second degree in violation of General
Statutes §§ 53a-94 and 53a-49 (a) (2); unlawful restraint
in the first degree in violation of General Statutes § 53a-
95; and two counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (1) and (2), respectively.
See id., 604. The petitioner was not charged with
assaulting the victim.
A four day jury trial began on August 5, 2008. Follow-
ing the close of evidence, the trial judge met with the
petitioner’s trial counsel, Walter D. Hussey, and the
prosecutor for the purpose of crafting an appropriate
kidnapping instruction that incorporated State v. Sala-
mon, 287 Conn. 509, 949 A.2d 1092 (2008),3 which had
been decided by our Supreme Court one month prior
to the petitioner’s criminal trial. The petitioner’s trial
counsel and the prosecutor agreed to a kidnapping
instruction comprised of language taken directly from
Salamon. See id., 546, 548, 550. That instruction pro-
vided in relevant part: ‘‘If you find that the [petitioner’s]
restraint of the victim was merely incidental to the
[petitioner’s] commission of another crime against the
victim, that is, assault, then you must find the [peti-
tioner] not guilty of the crime of kidnapping. . . . The
determination of whether an assault took place is for
you, the jury, to decide. . . . If you find that an assault
took place, then you must determine whether the
restraint was incidental to that assault. In making that
determination, you must consider the various relevant
[Salamon] factors. . . .’’
‘‘The jury found the [petitioner] guilty of kidnapping
in the second degree, attempted kidnapping in the sec-
ond degree, unlawful restraint in the first degree, and
risk of injury to a child [in violation of § 53-21 (a) (1)].4
The trial court merged the [petitioner]’s conviction . . .
[of] attempted kidnapping in the second degree, with
his conviction . . . [of] kidnapping in the second
degree. On October 17, 2008, the court imposed a total
effective sentence of twenty years of incarceration, exe-
cution suspended after eight and one-half years, fol-
lowed by five years of probation with special
conditions.’’ (Footnote added.) State v. Chance, supra,
147 Conn. App. 604. This court affirmed in part and
reversed in part the judgment of the trial court on direct
appeal.5 See id., 601.
On May 16, 2013, the self-represented petitioner filed
a petition for a writ of habeas corpus alleging that
his trial counsel had rendered ineffective assistance in
several respects. On August 26, 2016, the petitioner,
represented by appointed counsel, filed the operative
second amended petition, claiming that trial counsel
rendered ineffective assistance in that he (1) ‘‘acqui-
esced to improper jury instructions regarding kidnap-
ping, in accordance with the relatively new law as stated
in [Salamon]’’; (2) failed to file a motion to suppress
incriminating statements that the petitioner made to
law enforcement prior to receiving a Miranda6 warning;
and (3) failed to file a motion to suppress evidence
obtained from the seizure of his pickup truck.
The habeas trial was held on September 9, 2016. The
habeas court heard testimony from the petitioner, Attor-
ney Hussey and Trooper D’Elia. The petitioner did not
present any expert testimony in support of his claims.
In a memorandum of decision filed on November 10,
2016, the habeas court denied the petitioner’s second
amended petition, determining that the petitioner had
failed to establish deficient performance or prejudice
as to each of his claims. On November 21, 2016, the
habeas court denied the petitioner certification to
appeal, and this appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal from the denial of his second amended petition
for a writ of habeas corpus. We disagree.
As a preliminary matter, we set forth the standard
of review that governs our disposition of the petitioner’s
appeal. ‘‘Faced with a habeas court’s denial of a petition
for certification to appeal, a petitioner can obtain appel-
late review of the dismissal of his petition for habeas
corpus only by satisfying the two-pronged test enunci-
ated 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, [the petitioner] 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 deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘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 . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Cita-
tions omitted; internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,
156 A.3d 536 (2017).
As we discuss more fully in part II of this opinion,
because the resolution of the petitioner’s underlying
claim that trial counsel rendered ineffective assistance
involves issues that are not debatable among jurists of
reason, could not have been resolved by a court in
a different manner, and are not adequate to deserve
encouragement to proceed further, we conclude that
the habeas court did not abuse its discretion in denying
the petition for certification to appeal from the denial
of the petition for a writ of habeas corpus.
II
We now turn to the petitioner’s substantive claims
that the habeas court improperly concluded that the
petitioner failed to establish that his trial counsel ren-
dered ineffective assistance. The petitioner claims that
his trial counsel rendered deficient performance by fail-
ing (1) to present accurate jury instructions that were
consistent with Salamon, and (2) to file a motion to
suppress incriminating statements that the petitioner
made to law enforcement.7 The petitioner further claims
that he was prejudiced by this deficient performance.8
We disagree.
We first set forth our standard of review and the legal
principles that govern ineffective assistance of counsel
claims. ‘‘The habeas court is afforded broad discretion
in making its factual findings, and those findings will
not be disturbed unless they are clearly erroneous. . . .
Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
[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. . . .
‘‘[I]t is well established that [a] criminal defendant
is constitutionally entitled to adequate and effective
assistance of counsel at all critical stages of criminal
proceedings. Strickland v. Washington, [466 U.S. 668,
686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of the
Connecticut constitution.’’ (Internal quotation marks
omitted.) Thomas v. Commissioner of Correction, 141
Conn. App. 465, 470–71, 62 A.3d 534, cert. denied, 308
Conn. 939, 66 A.3d 881 (2013).
‘‘As enunciated in Strickland v. Washington, supra,
466 U.S. 687, this court has stated: It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel. . . . A claim of ineffective assistance
of counsel consists of two components: [1] a perfor-
mance prong and [2] a prejudice prong. To satisfy the
performance prong . . . the petitioner must demon-
strate that his attorney’s representation was not reason-
ably competent or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . To satisfy the prejudice prong,
[the petitioner] must demonstrate that there is a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. . . . The [petitioner’s] claim will succeed
only if both prongs are satisfied. . . . The court, how-
ever, can find against a petitioner . . . on either the
performance prong or the prejudice prong, whichever
is easier.’’ (Citation omitted; internal quotation marks
omitted.) Salmon v. Commissioner of Correction, 178
Conn. App. 695, 703–704, 177 A.3d 566 (2017).
A
With the foregoing legal framework in mind, we
address the petitioner’s claim that the habeas court
improperly concluded that he failed to establish that
his trial counsel rendered ineffective assistance by fail-
ing to ‘‘present accurate jury instruction[s] consistent
with . . . [Salamon].’’ At oral argument before this
court, the petitioner conceded that he does not actually
challenge the language of the jury instruction, stating
that it conforms to Salamon verbatim. He argues, how-
ever, that it was improper for the court to instruct the
jury regarding the underlying uncharged assault. The
petitioner’s basis for this claim is that, because trial
counsel was applying new law, he was uncertain if
Salamon was going to remain good law and should not
have allowed the proposed instruction.9 We disagree.
The habeas court found that the ‘‘decision by [trial
counsel] to accept the jury instruction on kidnapping,
as given by the trial judge, was intentional and the
product of much thought and discussion among the
trial judge, prosecutor, and [trial counsel],’’ and, there-
fore, was not outside of reasonably acceptable profes-
sional conduct.10 The petitioner has offered no expert
testimony or sound legal theory to support his claim.
On the contrary, our case law firmly establishes that
‘‘[s]tare decisis . . . allows for predictability in the
ordering of conduct, it promotes the necessary percep-
tion that the law is relatively unchanging, it saves
resources and it promotes judicial efficiency. . . . It is
the most important application of a theory of deci-
sionmaking consistency in our legal culture and . . .
is an obvious manifestation of the notion that deci-
sionmaking consistency itself has normative value.’’
(Internal quotation marks omitted.) Spiotti v. Wolcott,
326 Conn. 190, 201, 163 A.3d 46 (2017); see also State
v. Salamon, supra, 287 Conn. 519.
In this case, the petitioner has presented this court
with no sound basis to conclude that trial counsel’s
conduct fell outside the wide range of reasonable pro-
fessional assistance with respect to the kidnapping
instruction. See Strickland v. Washington, supra, 466
U.S. 689. We conclude, therefore, that the habeas court
properly determined that the petitioner failed to demon-
strate that trial counsel rendered ineffective assistance
with respect to this claim.
B
Last, the petitioner claims that the habeas court
improperly concluded that the petitioner failed to estab-
lish that his trial counsel rendered ineffective assistance
by failing to file a motion to suppress incriminating
statements made to law enforcement. Specifically, the
petitioner claims that because he was in custody for
the purpose of Miranda when he made incriminating
statements to law enforcement, counsel’s failure to pur-
sue a motion to suppress was deficient performance.
We disagree.
The following additional facts and procedural history
are relevant to our analysis. Prior to the petitioner’s
criminal trial, trial counsel moved to adopt the suppres-
sion motions of the petitioner’s previous defense attor-
ney. Trial counsel subsequently withdrew the motion
with respect to those statements made by the petitioner
during his pretrial suppression hearing. At the criminal
trial, law enforcement officers testified that they visited
the petitioner’s home on August 11, 2007, at approxi-
mately 4 p.m., to interview him regarding the complaint.
En route to the petitioner’s residence they did not use
sirens or emergency lights. Trooper Theresa Freeman
testified that ‘‘[they] parked . . . on the opposite side
of the street back from the house. . . . [T]wo troopers
[were directed] to go around the back . . . . [They]
walked up . . . to the front door [where] there was a
female sitting on a chair . . . [they] could see through
the window. [They] knocked, [and] she came to the
door . . . . [Trooper Freeman asked] ‘Is [the peti-
tioner] home?’ ’’ The woman then called to the peti-
tioner, who then came to the door. ‘‘Trooper Uliano
asked him to step outside on the porch . . . which he
did. . . . [Then Trooper Freeman] looked right at him
[and] said, ‘[d]id you put your hands on a fifteen year
old girl?’. . . [At which point], [h]e looked at [Trooper
Freeman], turned his head to the side and said, ‘I didn’t
know she was fifteen,’ and dropped his head.’’
‘‘In order to establish that he was entitled to Miranda
warnings [the petitioner] must show that he was in
custody when he made the statements and that he made
the statements in response to police questioning. . . .
In assessing whether a person is in custody for purposes
of Miranda, the ultimate inquiry is whether a reason-
able person in the [petitioner’s] position would believe
that there was a restraint on [his] freedom of movement
of the degree associated with a formal arrest. . . . Any
lesser restriction on a person’s freedom of action is not
significant enough to implicate the core . . . concerns
[of the fifth amendment to the United States constitu-
tion] that Miranda sought to address.’’ (Citation omit-
ted; internal quotation marks omitted.) State v.
Edwards, 325 Conn. 97, 110, 156 A.3d 506 (2017).
With these facts and principles in mind, we review
the habeas court’s conclusion that trial counsel did
not render ineffective assistance with respect to the
suppression of the statements made to law enforcement
prior to the Miranda warnings. The habeas court found
that ‘‘[trial counsel] well knew that the petitioner . . .
had personal interaction and experience with state
troopers regarding such inquires in the past that never
resulted in a loss of his freedom of movement. Under
these circumstances, [trial counsel] correctly assessed
that any attempt to suppress admission of these state-
ments would be meritless and futile, and he was within
professional competence for declining to make that
attempt.’’ The habeas court explained that ‘‘[u]nder this
scenario . . . a reasonable person would not believe
that his freedom of movement was restrained by [the]
display of police authority [encountered].’’ (Internal
quotation marks omitted.)
Evidence adduced at the underlying criminal trial
and at the habeas hearing indicates there was not a
sufficient show of police force that would lead a reason-
able person, in his own home, to feel that he was in
custody for the purposes of Miranda. Accordingly, we
conclude that the habeas court properly determined
that the petitioner failed to demonstrate that trial coun-
sel rendered deficient performance with respect to
this claim.
In light of the foregoing, we conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
‘‘In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victim or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.’’ State v. Chance, supra, 147 Conn. App. 603.
2
After the petitioner’s arrest, Troopers ‘‘D’Elia and [Steven] Caltica took
the [petitioner] to the Troop L state police barracks. . . . [Troopers] D’Elia
and Uliano spoke to the [petitioner] at the police barracks and asked him
if he would to give a statement. The [petitioner] said, ‘[W]hatever she said
is true,’ and then said, ‘My life is over.’ . . . The troopers asked the [peti-
tioner] what his intentions had been, and he repeated several times, ‘I don’t
know, my life is over.’ At one point, the [petitioner] told the troopers, ‘I
have a problem.’ ’’ State v. Chance, supra, 147 Conn. App. 611.
3
In Salamon, our Supreme Court ‘‘reconsidered and reversed our long-
standing jurisprudence holding that the crime of kidnapping encompasses
restraints that are necessary or incidental to the commission of a separate
underlying crime . . . concluding that [o]ur legislature, in replacing a single,
broadly worded kidnapping provision with a gradated scheme that distin-
guishes kidnappings from unlawful restraints by the presence of an intent
to prevent a victim’s liberation, intended to exclude from the scope of the
more serious crime of kidnapping and its accompanying severe penalties
those confinements or movements of a victim that are merely incidental to
and necessary for the commission of another crime against that victim.’’
(Citation omitted; internal quotation marks omitted.) State v. DeJesus, 288
Conn. 418, 429, 953 A.2d 45 (2008).
4
The jury found the petitioner not guilty of kidnapping in the first degree,
and risk of injury to a child, in violation of § 53-21 (a) (2). The court accepted
the jury verdict, and a judgment of acquittal was rendered by the court as
to these two counts.
5
This court reversed the judgment and remanded the case to the trial
court to vacate the conviction of attempted kidnapping in the second degree
on the grounds that it was cumulative and violated constitutional prohibi-
tions against double jeopardy. See State v. Chance, supra, 147 Conn. App.
619–20; see also State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013). This
court affirmed the judgment in all other respects. See State v. Chance,
supra, 622.
6
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
7
The petitioner also claims that the habeas court improperly concluded
that he failed to establish that his trial counsel rendered ineffective assis-
tance by failing to file a motion to suppress evidence resulting from the
seizure of the petitioner’s truck. This claim has no merit. No tangible evi-
dence was admitted at trial as a result of the seizure. Instead, the only
evidence related to the petitioner’s truck was testimony regarding the appear-
ance of the truck itself, which served to identify the petitioner as the perpetra-
tor and did not flow from its seizure. The habeas court concluded that,
because the seizure of the petitioner’s truck was supported by the plain
view doctrine, any challenge by trial counsel would have been meritless.
The petitioner has presented this court with no basis from which we could
conclude that his trial counsel’s conduct in failing to move to suppress
evidence that was not admitted at trial fell outside the wide range of reason-
able professional assistance. Accordingly, the habeas court properly con-
cluded that trial counsel did not render deficient performance in failing to
raise a meritless challenge to the seizure of the petitioner’s truck.
8
Because we conclude that the petitioner failed to satisfy his burden of
overcoming the strong presumption that his trial counsel provided effective
assistance in this matter, we need not reach the petitioner’s claim that he
was prejudiced by trial counsel’s alleged deficient performance. See Johnson
v. Commissioner of Correction, 218 Conn. 403, 419, 589 A.2d 1214 (1991)
(reviewing court can find against petitioner on either prong of Strickland);
see also Martin v. Commissioner of Correction, 141 Conn. App. 99, 102–103,
60 A.3d 997 (‘‘[i]f . . . the petitioner fail[s] to satisfy the performance prong
of the Strickland standard, that determination is dispositive of the petition-
er’s habeas claims, and it is unnecessary for the court to reach the prejudice
prong’’), cert. denied, 308 Conn. 923, 94 A.3d 638 (2013).
9
At oral argument before this court, the petitioner supported this claim
by asserting, ‘‘[Salamon] itself was then on appeal, and it was not confirmed
to be ‘proper and accurate’ until after these instructions were . . . used in
[the petitioner’s] case.’’ Contrary to this assertion, however, Salamon was
binding precedent at the time of the petitioner’s criminal trial.
10
As the habeas court concluded, when trial counsel advocated for the
uncharged assault to be included in the instruction, he provided the jury
with an avenue for acquittal from the more serious charge of kidnapping
in the first degree and, conceivably, benefited the petitioner.