Coltherst v. Commissioner of Correction

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JAMAAL COLTHERST v. COMMISSIONER
OF CORRECTION
(AC 43864)
Elgo, Cradle and Pellegrino, Js.
Syllabus
The petitioner, who had been convicted of multiple crimes, including murder,
sought a writ of habeas corpus, claiming that he received ineffective
assistance of counsel in the two criminal matters underlying his petition
and that his conviction of kidnapping in the first degree with a firearm
violated his right to due process. The first incident occurred in Hartford,
and the second incident occurred four days later, and was tried in New
Britain. Specifically, he claimed that the jury in the New Britain case
was not instructed to determine whether the victim was restrained to
an extent exceeding that which was necessary to complete the other
crimes, as required by State v. Salamon (287 Conn. 509). Thereafter,
the habeas court rendered judgment denying the habeas petition, and the
petitioner, on the granting of certification, appealed to this court. Held:
1. The petitioner could not prevail on his claims that counsel in his underlying
criminal matters rendered ineffective assistance.
a. The habeas court correctly determined that the petitioner’s trial coun-
sel, O, in the Hartford case did not provide ineffective assistance by
failing to advise him adequately regarding his decision to testify: the
petitioner failed to meet his burden of demonstrating that O’s conduct
fell below an objective standard of reasonableness and failed to overcome
the presumption that his counsel acted competently; the court’s finding
that O met with the petitioner to discuss his case eighteen times was
supported by the petitioner’s own testimony, and, although O could not
recall how he advised the petitioner regarding whether he should testify,
O testified regarding what he would normally do with respect to advising
a criminal defendant about whether to testify, and the court found O’s
testimony to be credible; moreover, O could not have foreseen that the
petitioner would not testify truthfully, which resulted in the petitioner
opening the door to the introduction of evidence concerning the New
Britain case.
b. The habeas court correctly determined that the petitioner’s trial coun-
sel in the New Britain case, C, did not provide ineffective assistance by
failing to adequately advise him about a plea offer to resolve that case:
the record supported the habeas court’s conclusion that the petitioner
failed to meet his burden of demonstrating that the trial court would have
accepted the plea agreement, as the petitioner presented no evidence
to that effect, and, even if this court assumed the existence of such an
agreement, the petitioner’s equivocal testimony that he ‘‘possibly’’ would
have accepted the plea offer was insufficient to meet his burden of
demonstrating a reasonable probability that, if not for C’s defective
performance, he would have accepted the plea offer.
2. The petitioner’s claim that his kidnapping conviction in the New Britain
case violated his right to due process because the jury was not instructed
to determine whether the victim was restrained to an extent exceeding
that which was necessary to complete the other crimes was unavailing:
the court correctly determined that the absence of a Salamon instruction
at the petitioner’s criminal trial constituted harmless error; the court
thoroughly addressed each of the Salamon factors as applied to the
facts of the present case and made factual findings in connection there-
with, which were not clearly erroneous, as the restraint and movement
of the victim were done to facilitate the petitioner’s escape from the
robbery scene, not to accomplish the robbery itself, and, as such, they
had independent criminal significance, the court’s determination that
those factors did not favor the petitioner was supported by the record,
and, thus, the absence of a Salamon instruction could not have substan-
tially affected or influenced the jury’s verdict.
Argued September 9—officially released November 2, 2021
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, Bhatt, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Michael W. Brown, for the appellant (petitioner).
Laurie N. Feldman, deputy assistant state’s attorney,
with whom, on the brief, were Sharmese L. Wolcott
and Brian W. Preleski, state’s attorneys, and Tamara
Grasso, former senior assistant state’s attorney, for the
appellee (respondent).
Opinion
PELLEGRINO, J. The petitioner, Jamaal Coltherst,
appeals following the granting of his petition for certifi-
cation to appeal from the judgment of the habeas court
denying his petition for a writ of habeas corpus. He
claims that (1) he received ineffective assistance of trial
counsel in both of the underlying criminal matters that
formed the basis for his habeas petition and (2) because
the jury in one of his underlying criminal matters was
not instructed to determine whether the victim in that
case was restrained to an extent exceeding that which
was necessary to complete other crimes, as required
by State v. Salamon, 287 Conn. 509, 949 A.2d 1092(2008), his conviction of kidnapping in the first degree
with a firearm in that case violated his constitutional
right to due process. We disagree and affirm the judg-
ment of the habeas court.
The following facts and procedural history are rele-
vant to our disposition of the petitioner’s claims on
appeal. The petitioner’s habeas petition concerns his
convictions of various crimes in two underlying crimi-
nal matters. The first matter occurred in Hartford in
1999 (Hartford case), and the second matter occurred
in Wethersfield four days after the incident in Harford,
and was tried in New Britain (New Britain case). In
the Hartford case, the petitioner was convicted of nine
different offenses related to a carjacking incident,1 and,
following resentencing, he was sentenced to a total
effective sentence of eighty years of incarceration,
which was to run consecutive to the sentence imposed
in the New Britain case.
The petitioner filed a direct appeal from his convic-
tion in the Hartford case to our Supreme Court, which
set forth the following relevant facts. On the evening
of October 15, 1999, the petitioner and a friend, Carl
Johnson, who was armed with a gun, rode mountain
bikes ‘‘to an exotic dance club known as Kahoots,
located on Main Street in East Hartford, arriving at
approximately 7:30 p.m. They parked the bicycles in
the bushes behind the club and then walked around
the parking lot to identify cars that they might want to
carjack. . . .
‘‘The [petitioner] and Johnson [left the Kahoots park-
ing lot briefly to look elsewhere for cars to carjack but]
returned to Kahoots . . . at approximately 9 p.m. They
hid their bicycles behind the Rent-A-Wreck building
located next to the club. They saw a 1999 Toyota 4Run-
ner parked in the Rent-A-Wreck parking lot and waited
there for the driver to return so that they could carjack
the car. While they were waiting, a black Honda Accord
pulled up behind Rent-A-Wreck. The driver, later identi-
fied as Kyle Holden (victim), exited the car and went
into Kahoots. Some time later, when the victim came
out of Kahoots and headed toward his car, the [peti-
tioner] and Johnson ran up to him. Johnson pointed
his gun at the victim’s head and demanded the keys to
the car. The [petitioner] took them. Johnson then gave
the gun to the [petitioner] and took the keys himself.
Johnson and the [petitioner] forced the victim into the
backseat of the car, where the [petitioner] joined him.
They then drove to an automatic teller machine (ATM)
located next to the Triple A Diner. The [petitioner]
took the victim’s wallet, removed his ATM card and
demanded the victim’s personal identification number.
The [petitioner then] gave the card to Johnson, who
used it to withdraw money from the ATM.
‘‘Johnson then drove to a nearby entrance ramp for
Interstate 84, where he pulled over to the side of the
road. The [petitioner] and Johnson got out of the car,
and the [petitioner] gave the gun to Johnson. Johnson
then ordered the victim to get out of the car. The victim
went to the far side of the guardrail, where he sat down.
The [petitioner] removed the victim’s belongings from
the car and then got back into the car’s passenger side
seat. At that point, the [petitioner] saw Johnson shoot
the victim at point blank range in the back of the head.
The victim died within seconds. Johnson then got back
into the car. The [petitioner] asked him why he had
shot the victim, and Johnson said that he did not want
any witnesses.’’ (Footnote omitted.) State v. Coltherst,
263 Conn. 478, 484–86, 820 A.2d 1024 (2003). Our
Supreme Court affirmed the petitioner’s judgment of
conviction in the Hartford case. See id., 483.
In the New Britain case, the petitioner was convicted
of fifteen different offenses, including kidnapping in
the first degree with a firearm in violation of General
Statutes § 53a-92a and two counts of robbery in the
first degree in violation of General Statutes § 53a-134
(a) (1) and (2).2 The petitioner was sentenced in the
New Britain case to eighty-five years of incarceration,
to run consecutive to the sentence imposed in the Hart-
ford case.
The petitioner appealed his conviction in the New
Britain case to this court, which set forth the following
relevant facts: ‘‘On October 19, 1999, the [petitioner]
. . . Johnson and Rashad Smith were sitting in a stolen
black Honda Accord near 85 Wolcott Hill Road in Weth-
ersfield. The trio had smoked marijuana. Sometime
after darkness fell, the victim, Michael Clarke, returned
to Camilleri and Clarke Associates, Inc., the insurance
brokerage firm located there, of which he was an owner.
He had left his motor vehicle, a black Lincoln Mark VIII
valued at approximately $28,000, in the firm’s parking
lot. After [Clarke] had been in the building for some
time, his dog began to bark, and so [Clarke] went out-
side. After [Clarke] left the building, he was accosted
by the [petitioner] and Johnson. The [petitioner] wore
a red sweatshirt or parka. [Clarke] was instructed to
turn over the keys to his vehicle. One of the men pointed
a gun at [Clarke], and told him to go back into the
building and to his office.
‘‘In the office, while one of the men continued to
point the gun at [Clarke], the other held [Clarke]. The
[petitioner] and Johnson took [Clarke’s] laptop com-
puter and credit card. They threatened [Clarke] and
ordered him to provide the access code for the card so
that they could use it to obtain cash. Johnson took the
computer while the [petitioner] took the credit card.
The [petitioner] and Johnson stated that they were
going to take [Clarke] to the car, and after he protested
and resisted, he was struck twice in the face with the
gun. [Clarke] was pushed outside, continued to struggle
with the two men and broke away from them before
being forced into the car. [Clarke] started to flee and
called out for help, but was soon tackled by Johnson.
[Clarke] then struggled with the [petitioner], who took
out a .22 caliber Beretta and shot [Clarke] in the head.
The [petitioner] and Johnson fled the scene in [Clarke’s]
Lincoln while Smith drove the Honda Accord.
‘‘Oscar Rivera, a Wethersfield police officer, arrived
at the scene after being notified of the assault. He found
[Clarke] lying on the ground in the parking lot, which
was otherwise empty. At that time, [Clarke] was respon-
sive, but had suffered visible injuries. Medical personnel
subsequently transferred [Clarke] to Hartford Hospital
for treatment. [Clarke] was hospitalized for nine to ten
days and then was transferred to a rehabilitation facility
for an additional seven weeks of therapy.’’ (Footnotes
omitted.) State v. Coltherst, 87 Conn. App. 93, 96–98,
864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d
371 (2005). This court affirmed in part3 the petitioner’s
conviction in the New Britain case. See id., 96.
Following the resolution of his direct appeals in the
Harford and New Britain cases, the petitioner filed a
petition for a writ of habeas corpus, which is the subject
of this appeal. He first filed a petition on June 10, 2015,
in a self-represented capacity but later filed an amended
petition, through counsel, on August 27, 2018. In his
amended habeas petition, the petitioner alleged nine
separate grounds for reversal of his convictions, all but
three of which were withdrawn prior to the habeas
trial. The three remaining counts alleged (1) ineffective
assistance by trial counsel in the Hartford case, (2)
ineffective assistance by trial counsel in the New Britain
case, and (3) that the petitioner’s kidnapping conviction
in the New Britain case violated the petitioner’s right
to due process. The habeas court rendered judgment
denying the habeas petition, from which the petitioner,
on the granting of certification, appealed to this court.
Additional facts will be set forth as necessary.
I
In this appeal, the petitioner raises two claims related
to the habeas court’s denial of his ineffective assistance
of counsel claims—one related to the Hartford case
and the other to the New Britain case. We address each
in turn. First, we set forth our well settled standard
of review and legal principles applicable to claims of
ineffective assistance of counsel in habeas matters.
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
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. . . . Therefore, our review of whether
the facts as found by the habeas court constituted a
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary.’’ (Internal quota-
tion marks omitted.) Charles v. Commissioner of Cor-
rection, 206 Conn. App. 341, 346, A.3d (2021).
‘‘The sixth amendment to the United States constitu-
tion guarantees a criminal defendant the assistance of
counsel for his defense. . . . It is axiomatic that the
right to counsel is the right to the effective assistance
of counsel. . . . To succeed on a claim of ineffective
assistance of counsel, a habeas petitioner must satisfy
a two-pronged test articulated in Strickland v. Wash-
ington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). Strickland requires that a petitioner satisfy
both a performance and a prejudice prong. To satisfy
the performance prong, a [petitioner] must demonstrate
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment. . . . To satisfy the prejudice
prong, a [petitioner] must demonstrate that there is a
reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . Although a petitioner can succeed
only if he satisfies both prongs, a reviewing court can
find against the petitioner on either ground. . . .
‘‘We . . . are mindful that [a] fair assessment of
attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to recon-
struct the circumstances of counsel’s challenged con-
duct, and to evaluate the conduct from counsel’s per-
spective 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 [petitioner] must overcome the presumption that,
under the circumstances, the challenged action might
be considered sound trial strategy. . . . [C]ounsel is
strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise
of reasonable professional judgment. . . . Similarly,
the United States Supreme Court has emphasized that
a reviewing court is required not simply to give [coun-
sel] the benefit of the doubt . . . but to affirmatively
entertain the range of possible reasons . . . counsel
may have had for proceeding as [he or she] did. . . .
‘‘In assessing prejudice under Strickland, the ques-
tion is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether
it is possible a reasonable doubt might have been estab-
lished if counsel acted differently. . . . Instead, Strick-
land asks whether it is reasonably likely the result
would have been different. . . . The likelihood of a
different result must be substantial, not just conceiv-
able.’’ (Internal quotation marks omitted.) Harris v.
Commissioner of Correction, 205 Conn. App. 837, 857–
58, 257 A.3d 343 (2021).
A
The petitioner claims that the habeas court improp-
erly determined that his trial counsel in the Hartford
case did not provide ineffective assistance by failing to
advise the petitioner adequately regarding his decision
to testify at the underlying criminal trial in the Hartford
case. We disagree.
With respect to the claim of ineffective assistance of
counsel in the Hartford case, the habeas court found
the following relevant facts: ‘‘In the Hartford case, the
petitioner was represented at all relevant times by Attor-
ney Donald O’Brien. He met with the petitioner approxi-
mately eighteen times during which he discussed the
evidence. The defense theory at trial was that the peti-
tioner was not involved and, instead, it was the codefen-
dant . . . Johnson who was responsible for the crimes.
The gun was connected to . . . Johnson and the
defense sought to put the blame on Johnson’s shoul-
ders. The petitioner, seventeen at the time of the
offenses, had given various statements to the police.
Defense counsel attempted to discredit the statements
by questioning the way in which police obtained the
statements from the petitioner and argued to the jury
that [it] should not believe the contents of the state-
ments. Since almost twenty years have passed since
the petitioner’s underlying trial, Attorney O’Brien did
not remember many details of the trial or his communi-
cations with the petitioner. He testified credibly, how-
ever, that he would have discussed with the petitioner
his right to testify and, in doing so, would have laid out
the evidence the state presented up to that point during
the trial. If he believed the state had not proven its case
beyond a reasonable doubt, he would have encouraged
the petitioner to not testify because doing so would
give the prosecution an opportunity to vigorously cross-
examine the petitioner and potentially fill in the gaps
in the state’s case. He insisted that the decision to testify
belongs to the petitioner.
‘‘The petitioner did testify in the Harford case and,
according to Attorney O’Brien, did well on direct exami-
nation. He denied making many of the statements con-
tained in his written statements given to the police.
‘One of those statements indicated that the [petitioner]
had stated to the police that, on the night of the crime, he
and Johnson parked [their] bikes in the bushes behind
Kahoots and walked around the parking lot looking for
cars that [they] might want to jack.’ . . . State v. Col-
therst, supra, 263 Conn. 508. During cross-examination,
he was asked what it meant to jack a car. The petitioner
replied that he did not know because he did not jack
cars. As a result of this, the state sought to question
the petitioner about [the] carjacking that occurred in
Wethersfield four days after the Hartford incident or,
in the alternative, [to] admit a redacted version of his
statement to the police admitting to the Wethersfield
crime. After some back and forth, the state and defense
counsel agreed that the state would conduct a limited
inquiry into this area, and the court subsequently gave
a limiting instruction to the jury.
‘‘According to the petitioner, Attorney O’Brien talked
to him about testifying at the trial a few days before
his testimony and they discussed it for only a few
minutes. The petitioner testified that had Attorney
O’Brien told him that he could be cross-examined about
the Wethersfield carjacking incident, he would . . .
not have testified the way he did. At the very least,
according to the petitioner, he would have been better
prepared to testify.’’ (Footnote omitted.)
In rejecting the petitioner’s claim that Attorney
O’Brien provided ineffective assistance, the habeas
court stated: ‘‘The only surviving claim against Attorney
O’Brien is that he did not adequately advise the peti-
tioner about testifying, nor did he adequately prepare
him to testify. The petitioner has not met his burden
of proof with regard to this claim. The petitioner’s claim
appears to be that, had Attorney O’Brien told the peti-
tioner that he could be questioned about the Wethers-
field carjacking, the petitioner would not have misled
the jury by saying that he didn’t jack cars.
‘‘The court struggles to understand how Attorney
O’Brien can be faulted for the petitioner’s decision, sua
sponte, to testify in a manner that he knew not to be
true. There is no deficient performance. Further, the
state’s evidence against the petitioner was significant.
Even assuming any deficient performance, the peti-
tioner has not proven prejudice. Thus, this claim must
be denied.’’
The following relevant legal principles guide our anal-
ysis of this claim. ‘‘[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.’’
(Internal quotation marks omitted.) Henderson v. Com-
missioner of Correction, 129 Conn. App. 188, 195, 19
A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1177(2011). ‘‘It is the responsibility of trial counsel to advise
a defendant of the defendant’s right to testify and to
ensure that the right is protected. [T]he if and when of
whether the accused will testify is primarily a matter
of trial strategy to be decided by the defendant and his
attorney. . . . The decision of whether to testify on
one’s own behalf, however, ultimately is to be made
by the criminal defendant.’’ (Citation omitted; internal
quotation marks omitted.) Victor C. v. Commissioner
of Correction, 179 Conn. App. 706, 715, 180 A.3d 969(2018). ‘‘A defendant is entitled to decide whether to
testify in his or her own case and is further entitled to
have advice from counsel concerning that decision.
. . . Counsel’s duty to advise includes the duty to keep
the defendant informed of all developments in the case
material to the defendant’s decision to testify. . . .
Deciding whether to testify on one’s own behalf is often
among the most difficult choices a criminal defendant
must make during trial. Testifying can present a risky
and difficult ordeal for a defendant. Defense counsel
therefore must keep the defendant apprised of all mate-
rial information known to counsel in order to help the
defendant in making that decision.’’ (Internal quotation
marks omitted.) Houghtaling v. Commissioner of Cor-
rection, 203 Conn. App. 246, 260–61, 248 A.3d 4 (2021).
‘‘[T]he habeas court must presume that counsel acted
competently and the burden lies with the petitioner, as
the party asserting ineffectiveness, to overcome this
presumption . . . .’’ Budziszewski v. Commissioner
of Correction, 322 Conn. 504, 517 n.2, 142 A.3d 243(2016).
The petitioner claims that Attorney O’Brien provided
ineffective assistance because he ‘‘failed to advise [the
petitioner] about general principles surrounding the
admissibility of evidence related to the New Britain
[case] and how his answers to certain questions might
result in opening the door to more damaging evidence
being offered against him.’’ According to the petitioner,
‘‘[i]f [Attorney O’Brien] had informed the petitioner that
his testimony could expose him to the risk of having
the jury hear about the New Britain [case], it could have
changed his decision to testify completely.’’
Given that twenty years had passed between the peti-
tioner’s criminal trial in the Hartford case and the
habeas trial, Attorney O’Brien had trouble recalling
exactly what advice he had given to the petitioner. The
habeas court, however, found that Attorney O’Brien
‘‘testified credibly . . . that he would have discussed
with the petitioner his right to testify and . . . the evi-
dence the state presented up to that point during the
trial,’’ that, if he believed the state had not met its
burden of proof beyond a reasonable doubt, ‘‘he would
have encouraged the petitioner to not testify,’’ and that,
ultimately, ‘‘the decision to testify belong[ed] to the
petitioner.’’ As this court previously has explained,
‘‘[t]ime inevitably fogs the memory of busy attorneys.
That inevitability does not reverse the Strickland pre-
sumption of effective performance. Without evidence
establishing that counsel’s strategy arose from the
vagaries of ignorance, inattention or ineptitude . . .
Strickland’s strong presumption must stand.’’ (Internal
quotation marks omitted.) Williams v. Commissioner
of Correction, 177 Conn. App. 321, 333, 175 A.3d 565,
cert. denied, 327 Conn. 990, 175 A.3d 563 (2017); see
also Rodriquez v. Commissioner of Correction, 35
Conn. App. 527, 536–37, 646 A.2d 919 (fact that attorney
could not recall specifically informing petitioner of right
to testify did not establish that he never told petitioner
of his right to testify and was not sufficient, by itself,
to demonstrate deficient performance), cert. denied,
231 Conn. 935, 650 A.2d 172 (1994).
Our review of the record supports the habeas court’s
conclusion that the petitioner failed to meet his burden
of demonstrating deficient performance by Attorney
O’Brien. The habeas court’s finding that Attorney
O’Brien had met with the petitioner to discuss his case
eighteen times was supported by the petitioner’s own
testimony. Although Attorney O’Brien could not recall
what advice he may have given to the petitioner regard-
ing whether the petitioner should testify, he did testify
regarding what he would normally do with respect to
advising a criminal defendant about whether to testify,
and the habeas court found his testimony to be credible.
‘‘We will not disturb a habeas court’s factual finding
that turns on its evaluation of the credibility of wit-
nesses. See Flomo v. Commissioner of Correction, 169
Conn. App. 266, 279, 149 A.3d 185 (2016) (‘[a] reviewing
court ordinarily will afford deference to those credibil-
ity determinations made by the habeas court on the
basis of [the] firsthand observation of [a witness’] con-
duct, demeanor and attitude’ . . .), cert. denied, 324
Conn. 906, 152 A.3d 544 (2017).’’ Houghtaling v. Com-
missioner of Correction, supra, 203 Conn. App. 263.
Moreover, we agree with the habeas court that Attorney
O’Brien could not have foreseen that the petitioner
would not testify truthfully, which resulted in his open-
ing the door to the introduction of evidence concerning
the New Britain case. The petitioner, therefore, has not
met his burden of demonstrating that Attorney O’Brien’s
conduct fell below an objective standard of reasonable-
ness, nor has he overcome the presumption that his
counsel acted competently. See Budziszewski v. Com-
missioner of Correction, supra, 322 Conn. 517 n.2;
Johnson v. Commissioner of Correction, 285 Conn. 556,
576–77, 941 A.2d 248 (2008). Accordingly, the habeas
court properly denied the habeas petition with respect
to the petitioner’s claim of ineffective assistance by
Attorney O’Brien in the Hartford case.4
B
The petitioner next claims that the habeas court
improperly determined that trial counsel in the New
Britain case did not provide ineffective assistance by
failing to advise the petitioner adequately about a sev-
enty year plea offer to resolve the New Britain case.
We disagree.
With respect to the claim of ineffective assistance of
counsel in the New Britain case, the habeas court found
the following relevant facts: ‘‘The petitioner was repre-
sented in the New Britain case by Attorney Thomas
Conroy. At the time of the New Britain trial, the peti-
tioner was already sentenced in connection with the
Hartford case. There may have been a plea offer pursu-
ant to which the petitioner would have been sentenced
to a term of imprisonment of seventy [years of] incarcer-
ation, concurrent to his Hartford sentence, but Attorney
Conroy could not recall any of the details of the plea
negotiations. The petitioner could not recall if Attorney
Conroy discussed the plea offer with him.
‘‘During the New Britain trial, the state sought to
introduce a letter written by the petitioner to his code-
fendant . . . Johnson in which the petitioner offered
Johnson money to tell the police that the petitioner had
not been involved. This letter had been introduced at
the Hartford trial as consciousness of guilt. In the New
Britain trial, the letter was not introduced, but the peti-
tioner’s testimony on this subject from the Hartford
trial was read to the jury. The petitioner now claims
that Attorney Conroy did not tell him that this testimony
would be admitted at the New Britain trial and, had he
done so, the petitioner would have possibly considered
pleading guilty instead of going to trial.’’
In rejecting the petitioner’s claim that Attorney Con-
roy provided ineffective assistance, the habeas court
stated: ‘‘Even though the court has granted the petition-
er’s motion to amend the pleadings to allege a claim
that Attorney Conroy failed to adequately advise the
petitioner regarding the plea, there is simply no evi-
dence that this is the case. For starters, the petitioner
has presented no evidence from which this court can
conclude that there was a firm offer of seventy [years of]
incarceration. Attorney Conroy testified that he thought
the offer might have been for seventy years. There was
no testimony about the charges to which the petitioner
would have to plead guilty to receive that sentence.
Further, there was no evidence whatsoever from which
this court could conclude that, even if such an offer
were made, the trial court would have accepted the
offer, a necessary requirement under our case law.
Finally, the petitioner’s testimony in this regard is also
unpersuasive. He testified that he possibly would have
considered pleading guilty to the offer if he had known
that his testimony from the Hartford trial would have
been admitted. The court does not find this credible.
Thus, the claim is denied.’’
As we have stated previously, ‘‘[i]n order to prevail
on a claim of ineffective assistance of counsel, the peti-
tioner must establish both prongs of the Strickland test.
. . . [A] habeas court may dismiss the petitioner’s claim
if he fails to satisfy either prong. . . . Accordingly, a
court need not determine the deficiency of counsel’s
performance if consideration of the prejudice prong will
be dispositive of the ineffectiveness claim.’’ (Internal
quotation marks omitted.) Carrasquillo v. Commis-
sioner of Correction, 206 Conn. App. 195, 205, A.3d
(2021). To establish prejudice when a petitioner has
rejected an alleged plea offer due to ineffective assis-
tance of counsel, the petitioner must establish ‘‘that
(1) it is reasonably probable that, if not for counsel’s
deficient performance, the petitioner would have
accepted the plea offer, and (2) the trial judge would
have conditionally accepted the plea agreement if it had
been presented to the court.’’ Ebron v. Commissioner
of Correction, 307 Conn. 342, 357, 53 A.3d 983 (2012),
cert. denied sub nom. Arnone v. Ebron, 569 U.S. 913,
133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013). ‘‘A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . In a habeas corpus pro-
ceeding, the petitioner’s burden of proving that a funda-
mental unfairness had been done is not met by
speculation . . . but by demonstrable realities. . . . If
the habeas court determined that . . . it is not reason-
ably probable that the trial court would have imposed
the sentence embodied in the plea agreement, the preju-
dice prong has not been satisfied.’’ (Citation omitted;
internal quotation marks omitted.) Sanders v. Commis-
sioner of Correction, 169 Conn. App. 813, 834–35, 153
A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d
536 (2017).
Our review of the record in the present case supports
the habeas court’s conclusion that the petitioner failed
to meet his burden of demonstrating that the trial court
would have accepted the plea agreement. The petitioner
presented no evidence to that effect, despite having
offered eleven exhibits into evidence at the habeas trial.
In fact, the record is bereft of any evidence that a firm
plea agreement for seventy years of incarceration even
existed,5 let alone that the court would have accepted
the agreement. Even if we assume the existence of such
an agreement, the petitioner’s equivocal testimony that
he ‘‘[p]ossibly’’ would have accepted the plea offer was
not sufficient to meet his burden of demonstrating a
reasonable probability that, if not for Attorney Conroy’s
deficient performance, he would have accepted the plea
offer. Because the petitioner has failed to establish that
he was prejudiced by Attorney Conroy’s allegedly defi-
cient performance in the plea bargain context, the
habeas court properly denied the habeas petition with
respect to this claim.6
II
The petitioner next claims that his kidnapping convic-
tion in the New Britain case violated his right to due
process because the jury in that case was not instructed
to determine whether Clarke was restrained to an
extent exceeding that which was necessary to complete
the other crimes, as required by State v. Salamon, supra,287 Conn. 509. We are not persuaded.
The habeas court found the following relevant facts
related to the petitioner’s conviction in the New Britain
case and his encounter with Clarke on October 19,
1999. After the petitioner and Johnson accosted Clarke,
forced him into the building where he worked, took
his laptop and credit card, and made him disclose the
personal identification number for the credit card, they
‘‘then ordered him to get into his vehicle. He refused
to do so, at which point one of them struck him with
the gun and they both assaulted [Clarke]. This occurred
while they were still inside the building. Clarke contin-
ued to fight with both of them but they opened the door
to the building and pulled him outside by his arms and
down the stairs leading out of the building into the
parking lot. The petitioner and Johnson went to
[Clarke’s] car and opened the car door. They ordered
Clarke to get into the backseat and pushed him into
the car. Clarke was pushed close enough to the interior
of the car that he was able to touch the seats and the
center console. He was in the area between the door
and the inside of the car for approximately twenty sec-
onds. He was almost inside the car but not in the back-
seat. He used the seats and console as leverage to push
himself backward and break free, which he did, and
then ran back in the direction that they had come from
but was tackled again. He screamed for help in the
direction of a passerby. He was then pushed up against
a wall by the petitioner, where they both struggled for
thirty to forty seconds. The last thing he remembered
was being pushed to the ground until police officers
arrived.
‘‘In his statement to police, which was admitted as
substantive evidence for the jury, the petitioner admit-
ted that their plan was to steal [Clarke’s car] and force
[Clarke] to come with them in the stolen vehicle so
[Clarke] would be unable to call the police. According
to the petitioner, Clarke did not want to go with them,
but they were pulling him by his arms trying to force
him outside the building and into the car. Both the
petitioner and Johnson repeatedly tried to get Clarke
inside the vehicle but were ultimately unsuccessful.’’
We first set forth our standard of review applicable
to the petitioner’s claim that his right to due process
was violated as a result of the absence of a Salamon
instruction to the jury. ‘‘In reviewing this issue, we are
mindful that the facts found by the habeas court are
subject to the clearly erroneous standard of review.
Farmer v. Commissioner of Correction, 165 Conn. App.
455, 458, 139 A.3d 767, cert. denied, 323 Conn. 905,
150 A.3d 685 (2016). The applicability of Salamon and
whether the court’s failure to give a Salamon instruc-
tion was harmless error are issues of law over which our
review is plenary.’’ (Internal quotation marks omitted.)
Pereira v. Commissioner of Correction, 176 Conn. App.
762, 767–68, 171 A.3d 105, cert. denied, 327 Conn. 984,
175 A.3d 43 (2017).
To resolve the petitioner’s Salamon claim on appeal,
we must also provide some background concerning that
case and certain changes in the law concerning how
courts interpret our kidnapping statutes. In 2008, our
Supreme Court decided State v. Salamon, supra, 287
Conn. 509, in which it ‘‘overruled [its] long-standing
interpretation of the state’s kidnapping statutes . . . .’’
Banks v. Commissioner of Correction, 339 Conn. 1, 4,
A.3d (2021). Specifically, in Salamon, our
Supreme Court, after conducting an ‘‘examination of
the common law of kidnapping, the history and circum-
stances surrounding the promulgation of our current
kidnapping statutes and the policy objectives animating
those statutes . . . conclude[d] the following: Our leg-
islature, in replacing a single, broadly worded kidnap-
ping 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 penal-
ties those confinements or movements of a victim that
are merely incidental to and necessary for the commis-
sion of another crime against that victim. Stated other-
wise, to commit a kidnapping in conjunction with
another crime, a defendant must intend to prevent the
victim’s liberation for a longer period of time or to a
greater degree than that which is necessary to commit
the other crime.’’ State v. Salamon, supra, 542. The
court in Salamon also held that ‘‘when the evidence
reasonably supports a finding that the restraint was not
merely incidental to the commission of some other,
separate crime, the ultimate factual determination [of
whether the movement of the victim has independent
criminal significance or is merely incidental to an under-
lying crime] must be made by the jury’’; (emphasis omit-
ted) id., 547–48; which should be instructed to consider
various factors, ‘‘including the nature and duration of
the victim’s movement or confinement by the defen-
dant, whether that movement or confinement occurred
during the commission of a separate offense, whether
the restraint was inherent in the nature of the separate
offense, whether the restraint prevented the victim from
summoning assistance, whether the restraint reduced
the defendant’s risk of detection and whether the
restraint created a significant danger or increased the
victim’s risk of harm independent of that posed by the
separate offense.’’ Id., 548.
In Luurtsema v. Commissioner of Correction, 299
Conn. 740, 748, 12 A.3d 817 (2011), our Supreme Court
addressed the issue of ‘‘[w]hether individuals whose
kidnapping convictions became final prior to [the
court’s] reconsideration [of the kidnapping statutes] in
Salamon may challenge the legality of their convictions
based on the interpretation . . . adopted in [Sala-
mon],’’ and determined that Salamon applies retroac-
tively in habeas cases. Id., 751. Thus, even though the
petitioner’s conviction in the New Britain case became
final before Salamon was decided, his claim that the
jury was not properly instructed in accordance with
Salamon was properly raised in his habeas petition.
See Banks v. Commissioner of Correction, supra, 339
Conn. 15–17.
In the present case, the habeas court determined
that the fact that the jury had not been instructed in
accordance with Salamon was harmless beyond a rea-
sonable doubt, as ‘‘there [was] no ‘reasonable possibil-
ity that a properly instructed jury would [have]
reach[ed] a different result.’ ’’ In support of its conclu-
sion, the habeas court examined the factors set forth
in Salamon and made a number of findings, including
that the instances of restraint of Clarke’s liberty, which
occurred when he was dragged by his arms out of the
office building and was forced into his own vehicle,
‘‘were independent of, and exceeded, any restraint nec-
essary to commit either a robbery, burglary, assault or
larceny,’’ and, thus, were not incidental to the commis-
sion of any of the charged offenses; although the dura-
tion of the restraint was not lengthy, its nature was
significant; the confinement did not occur during the
commission of a separate offense, as ‘‘the facts [did]
not support the conclusion that the robbery was still
underway at the time of the restraint on [Clarke’s] move-
ment’’; the petitioner’s restraint of Clarke was not inher-
ent to the robbery, as ‘‘no jury could reasonably deter-
mine that the petitioner’s acts of pulling [Clarke] by his
arms out of the building and into the parking lot, and,
further, the act of pushing [Clarke] into the vehicle,
coupled with the petitioner’s statements that they could
not leave [Clarke] behind for fear of being identified,
were inherent to the robbery of [Clarke], or even the
burglary or larceny of his motor vehicle’’; Clarke
shouted for help from a passerby and, thereby, was
able to summon assistance; Clarke was restrained for
the purpose of reducing the petitioner’s risk of identifi-
cation; and, because the petitioner and Johnson had
completed the robbery and the burglary, there was no
need to further restrain Clarke, but by forcing Clarke
into the parking lot and his vehicle, they significantly
increased Clarke’s risk of harm. In summary, the habeas
court concluded that ‘‘the restraint and abduction of
[Clarke] was in excess of any restraint needed to com-
plete the commission of another crime. . . . [The]
court has no doubt that the jury, even if properly
instructed on incidental restraint, would have returned
the same verdict.’’
The petitioner agrees with the habeas court that the
dispositive ‘‘question in this case [is] whether the lack
of a Salamon instruction was harmless error . . . .’’
He claims that he was harmed by the lack of such
an instruction. In support of that claim, the petitioner
asserts that, even though Clarke had relinquished the
items that he and Johnson demanded, ‘‘the continuing
efforts to subdue [Clarke] for purposes of evading
detection were part of the robbery itself . . . .’’ He
further claims that ‘‘[i]t is undisputed that any alleged
confinement occurred solely while [Clarke was being
attacked]. There is nothing in the record to suggest
that there was anything that could be characterized as
confinement that occurred apart from the robbery of
[Clarke] and the force incidental to attempting to gain
control of [Clarke] to complete the robbery.’’ In making
that argument, the petitioner relies on this court’s deci-
sion in Banks v. Commissioner of Correction, 184
Conn. App. 101, 194 A.3d 780 (2018), which, during the
pendency of this appeal, was reversed by our Supreme
Court. See Banks v. Commissioner of Correction,
supra, 339 Conn. 4–5.7
We must briefly set forth the factual background of
Banks. In 1995, the petitioner in that case ‘‘was arrested
and charged in connection with the armed robberies
of two Bedding Barn stores, the first in Newington and
the second in Southington.’’ Id., 5. With respect to the
Newington robbery, the petitioner pointed a gun at a
store employee, and took money from the cash register
and from the wallet of a second store employee, after
which he moved both employees down a hallway and
locked them in a bathroom. Id., 5–6. After the employees
heard a bell indicating that the front door of the store
had been opened, they kicked down the door and called
911. Id., 7. With respect to the Southington robbery, the
petitioner, armed with a gun, demanded money from
the cash register, and, once he obtained that money,
he led the store employee and her roommate, who had
been in the store, to a bathroom at gunpoint and told
them to lock themselves inside. Id., 7–8. Again, after a
buzzer went off indicating that the door to the store
had been opened, the employee and her roommate left
the bathroom and called 911. Id.
After the petitioner’s convictions in Banks were
upheld on direct appeal; State v. Banks, 59 Conn. App.
112, 113–14, 755 A.2d 951, cert. denied, 254 Conn. 950,
762 A.2d 904 (2000); our Supreme Court decided Sala-
mon in 2008. Subsequently, in 2014, the petitioner in
Banks filed a petition for a writ of habeas corpus, claim-
ing that his convictions of four counts of kidnapping
violated his right to due process because the jury had
not been instructed in accordance with Salamon. Banks
v. Commissioner of Correction, supra, 339 Conn. 13.
The habeas court denied the habeas petition, and the
petitioner, on the granting of certification, appealed to
this court, which, in a divided panel, concluded that
the absence of a jury instruction required by Salamon
was not harmless beyond a reasonable doubt. Banks
v. Commissioner of Correction, supra, 184 Conn. App.
104. We concluded that the petitioner was entitled to
a new trial because a jury provided with a Salamon
instruction reasonably could have found that the peti-
tioner’s movement and confinement of his victims was
done in furtherance of the robberies. Id., 131. Following
our decision, our Supreme Court granted the petition
for certification to appeal filed by the respondent in
Banks. Banks v. Commissioner of Correction, 330
Conn. 950, 197 A.3d 391 (2018).
On appeal, our Supreme Court decided two issues in
Banks that impact our decision in the present case.
First, the court established the standard of harmless
error review applicable to habeas cases involving a
Salamon error. Banks v. Commissioner of Correction,
supra, 339 Conn. 15. The court adopted the standard
articulated in Brecht v. Abrahamson, 507 U.S. 619, 623,
113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), pursuant to
which a new trial is necessary if the instructional error
‘‘had [a] substantial and injurious effect or influence in
determining the jury’s verdict . . . .’’ (Internal quota-
tion marks omitted.) Banks v. Commissioner of Correc-
tion, supra, 15.
Next, the court addressed the issue of whether ‘‘a
properly instructed jury would have found the peti-
tioner guilty of kidnapping beyond a reasonable doubt
notwithstanding the Salamon error.’’ Id., 34. In rejecting
this court’s conclusion that a jury reasonably might
have found that the restraint and movement of the vic-
tims were undertaken as part of the ongoing robberies,
the court stated: ‘‘This case is categorically distinct from
all of our prior Salamon cases insofar as the petitioner
indisputably had accomplished the criminal objective
of his underlying crimes prior to the commencement
of the alleged kidnapping. Under such circumstances,
there simply is no concern that the intent of the legisla-
ture will be frustrated by prosecuting a defendant for
kidnapping solely on the basis of the restraint inherent
in or necessary to accomplish the underlying crime.
Many if not most robbers choose to leave the scene
immediately upon obtaining the fruits of their crime.
Numerous sister state courts have concluded, as a mat-
ter of law, that a perpetrator’s choice to remain at the
crime scene and further restrict a victim’s liberty after
having robbed him or her manifests independent, crimi-
nal significance. . . . There is nothing specific to—let
alone inherent in—the crime of robbery about forcing
someone at gunpoint to the back of a store and
restraining them in a bathroom or cooler. That conduct
could just as well follow, and facilitate the offender’s
escape from, a physical or sexual assault, or other
crime. The purpose is to escape unhindered from a
crime scene—which, presumably, is a goal of most crim-
inals—and the specific nature of the underlying crime
is simply irrelevant.’’ (Citations omitted.) Id., 39–41.
Moreover, the court in Banks, in addressing the fac-
tors set forth in Salamon for determining whether con-
duct has independent criminal significance, stated
‘‘that, in cases such as this, in which it is undisputed
that the perpetrator unlawfully restrained his victims
following, and to facilitate his escape from the location
of, a robbery, the Salamon factors typically will tip
against the petitioner’s claim.’’ Id., 42. After examining
those factors in detail as applied to the facts of the case,
the court in Banks concluded ‘‘that, when a perpetrator,
having taken his victims’ valuables, then leads them at
gunpoint away from a highly visible commercial store-
front and confines them in an isolated area of the store
while he makes his escape, thereby exposing them to
new and different risks, such conduct is not inherent
in the nature of the robbery but, rather, indisputably
has independent criminal significance.’’ Id., 55–56.
Our decision in the present case is guided by our
Supreme Court’s decision in Banks. Here, the petitioner
and Johnson already had taken the keys to Clarke’s
vehicle,
his laptop and credit card, and had made him disclose
the personal identification number for the credit card,
when they ordered him to get into his vehicle. Their
conduct in pulling Clarke out of the building by his arms
and pushing him into his car had nothing whatsoever
to do with their robbery of his valuables, nor was it
necessary for them to take Clarke’s vehicle. As our
Supreme Court in Banks explained: ‘‘The goal of a rob-
bery is to take possession of another’s property. Once
that property has been taken by force, the purpose of
leading the victims to a different, more isolated location
and requiring that they remain there for some period of
time is, undoubtedly, to facilitate the offender’s escape
from the premises, undetected and unobstructed.’’ Id.,
44. The petitioner’s statement to the police regarding
the New Britain case, which was dated October 25,
1999, and which had been admitted into evidence at
the habeas trial, demonstrated that the petitioner’s plan
was to steal Clarke’s car and to force him to come along
so that Clarke could not call the police and identify the
perpetrators. The restraint and movement of Clarke,
therefore, were done to facilitate the petitioner’s escape
from the scene of the robbery, not to accomplish the
robbery itself. As such, this conduct had independent
criminal significance. Moreover, even though the facts
of the present case differ slightly from those in Banks,
both cases involve a situation in which a ‘‘perpetrator
removes [a victim] from the scene of [a] robbery and
restrains [the victim] after having forcibly taken [the
victim’s] property . . . .’’ Id. We therefore are not per-
suaded by the petitioner’s attempt to distinguish Banks
from the present case.
Accordingly, we conclude, on the basis of the reason-
ing in Banks, that the habeas court properly determined
that the absence of a Salamon instruction at the peti-
tioner’s criminal trial in the New Britain case consti-
tuted harmless error. The habeas court, after thoroughly
addressing each of the Salamon factors as applied to
the facts of the present case, made factual findings in
connection therewith, which were not clearly errone-
ous, and its determination that those factors did not
favor the petitioner was supported by the record. The
absence of a Salamon instruction, thus, could not have
substantially affected or influenced the jury’s verdict.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Specifically, the petitioner was convicted of capital felony in violation
of General Statutes (Rev. to 1999) §§ 53a-54b (5) and 53a-8 (a), murder in
violation of General Statutes (Rev. to 1999) §§ 53a-54a (a) and 53a-8 (a),
felony murder in violation of General Statutes § 53a-54c, kidnapping in the
first degree in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-8
(a), robbery in the first degree in violation of General Statutes § 53a-134 (a)
(2), robbery in the second degree in violation of General Statutes § 53a-135
(a) (1), larceny in the first degree in violation of General Statutes (Rev. to
1999) §§ 53a-122 (a) (3) and 53a-8 (a), conspiracy to commit kidnapping in
the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-92 (a)
(2) (B), and larceny in the fourth degree in violation of General Statutes
(Rev. to 1999) § 53a-125 (a).
2
In addition to the kidnapping and robbery offenses, the petitioner also
was convicted of burglary in the first degree in violation of General Statutes
§ 53a-101 (a) (1) and (2), attempt to commit murder in violation of General
Statutes (Rev. to 1999) §§ 53a-54a and 53a-49, assault in the first degree in
violation of General Statutes § 53a-59 (a) (1) and (2), conspiracy to commit
robbery in the first degree in violation of General Statutes §§ 53a-48 and
53a-134 (a) (1) and (2), conspiracy to commit kidnapping in the first degree
with a firearm in violation of §§ 53a-48 and 53a-92a, conspiracy to commit
burglary in the first degree in violation of General Statutes §§ 53a-48 and
53a-101, conspiracy to commit assault in the first degree in violation of
§§ 53a-48 and 53a-59 (a) (1), larceny in the first degree in violation of General
Statutes (Rev. to 1999) § 53a-122 (a) (3), and conspiracy to commit larceny
in the first degree in violation of General Statutes (Rev. to 1999) §§ 53a-122
(a) (3) and 53a-48.
3
This court agreed with a double jeopardy claim raised by the petitioner
that the trial court improperly had sentenced him on his conviction of six
counts of conspiracy offenses, and we remanded the case with direction to
merge the petitioner’s conviction of the six conspiracy offenses and to
vacate the sentences for five of them. State v. Coltherst, supra, 87 Conn.
App. 96, 113.
4
In light of our conclusion that the petitioner has failed to establish
deficient performance by Attorney O’Brien, we need not address the preju-
dice prong of the Strickland test. See Fair v. Commissioner of Correction,
205 Conn. App. 282, 294, 256 A.3d 163 (2021) (‘‘[i]n its analysis, a reviewing
court may look to the performance prong or to the prejudice prong [of the
Strickland test], and the petitioner’s failure to prove either is fatal to a
habeas petition’’ (internal quotation marks omitted)).
5
At oral argument before this court, the petitioner’s counsel acknowledged
the difficulty in pursuing this claim on appeal given the sparse record. He
also recognized the petitioner’s ambivalence regarding whether he would
have accepted the plea agreement.
6
See footnote 4 of this opinion.
7
On May 17, 2021, the state filed a notice of supplemental authority,
pursuant to Practice Book § 67-10, advising this court of the release of our
Supreme Court’s decision in Banks on May 12, 2021, and its applicability
to the present case.
At oral argument before this court, the petitioner’s counsel argued that
our Supreme Court’s decision in Banks was not dispositive of this claim
on appeal, and he attempted to distinguish Banks on the ground that the
facts of the present case were not as conclusive as those in Banks, in which
store employees were locked in a bathroom.