Franko v. Commissioner of Correction

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LAWRENCE FRANKO v. COMMISSIONER
OF CORRECTION
(AC 37490)
Alvord, Sheldon and Keller, Js.
Argued February 4—officially released May 17, 2016
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Wade Luckett, assigned counsel, with whom, on the
brief, was Walter C. Bansley IV, assigned counsel, for
the appellant (petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo,
Jr., state’s attorney, and Kelly A. Masi, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
KELLER, J. Upon a grant of certification to appeal,
the petitioner, Lawrence Franko, appeals from the judg-
ment of the habeas court denying his third amended
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court’s judgment
should be reversed because that court erred by conclud-
ing that the petitioner’s trial counsel, Attorneys Henry
Becker and Thomas Moore,1 did not render ineffective
assistance on the basis of their decision not to seek a
jury instruction on the lesser included criminal offenses
of unlawful restraint in either the first or second degree.
We affirm the judgment of the habeas court.
The following procedural history and facts are rele-
vant to this appeal. In 2010, following a jury trial, the
petitioner was convicted of kidnapping in the second
degree in violation of General Statutes § 53a-94.2 The
petitioner was thereafter sentenced to serve sixteen
years in prison, followed by four years of special parole.3
This court, in affirming the petitioner’s conviction on
direct appeal, stated that the jury reasonably could have
found the following facts pertaining to the underlying
crime. ‘‘On November 10, 2008, the victim was packing
groceries into her vehicle, which was parked in the
parking lot of a Stamford grocery store. After the victim
entered her vehicle, shut the door and started the vehi-
cle, the [petitioner], who had a prior relationship with
the victim, opened the vehicle’s door and pushed the
victim between the passenger’s and driver’s seats. The
victim’s keys to the vehicle were knocked out of the
ignition during the victim’s initial struggle with the [peti-
tioner], but the [petitioner] then started the vehicle with
another key. The victim pushed the horn of her car
in an attempt to draw attention to the situation. The
[petitioner] grabbed the victim’s hair and hit her face
against the dashboard, which caused the victim to
bleed.
‘‘He then held the victim’s head down as he drove
her vehicle on the Merritt Parkway, in the direction of
the [petitioner’s] residence. The victim, in an attempt
to escape the vehicle, persuaded the [petitioner] to pull
into a rest stop for gas. The [petitioner] pulled into the
New Canaan rest area, which included a gas station,
and parked the vehicle, but, after the [petitioner]
decided the rest area was ‘not the right place to talk,’
he began to drive the vehicle in reverse in order to exit
the rest area. Trying to prevent the victim from exiting
the vehicle, the [petitioner] grabbed the victim’s belt
and pants, until her pants ripped at the crotch area.
The victim successfully escaped the vehicle and ran to
the gas station. The victim called 911 on her cell phone
and also requested that the gas station attendant call
911 . . . . The [petitioner] ran into the woods, behind
the rest area, before state police arrived in response to
the 911 calls.
‘‘Officer Glen Coppola of the Stamford police depart-
ment . . . was dispatched to the rest area to meet with
the victim. The victim subsequently followed Coppola
to the special victims unit of the department. When the
victim arrived at the department, she met with Sergeant
Christian DiCarlo, who noted facial bruising, scratches
around the victim’s eyes and the fact that her jeans
were torn. DiCarlo took the victim’s statement and pho-
tographed the extent of her injuries. Later that night,
the [petitioner] surrendered to the department and was
arrested on the charge of kidnapping in the second
degree, of which he ultimately was convicted.’’ State v.
Franko, 142 Conn. App. 451, 453–55, 64 A.3d 807, cert.
denied, 310 Conn. 901, 75 A.3d 30 (2013).
The petitioner filed an initial petition for a writ of
habeas corpus on April 13, 2011. He thereafter filed an
amended petition on April 16, 2014, a second amended
petition on May 27, 2014, and a third amended petition
on July 30, 2014. In the third amended petition, amongst
several other claims, the petitioner claimed that he
received ineffective assistance of counsel during his
criminal trial because his trial counsel did not request
a jury instruction on the lesser included offenses of
unlawful restraint in the first degree, unlawful restraint
in the second degree, or assault in the third degree.
The respondent, the Commissioner of Correction,
denied the substance of all of the petitioner’s claims in
a return filed on August 4, 2014. On November 20, 2014,
the court, Sferrazza, J., held a habeas trial, during
which the petitioner presented documentary and testi-
monial evidence. Relevant to the issue on appeal, the
petitioner presented his own testimony, as well as the
testimony of Attorney Robert McKay, a Connecticut
criminal defense attorney, and Attorney Maureen
Ornousky, the prosecutor who handled the petitioner’s
criminal trial. On December 4, 2014, the court issued a
memorandum of decision wherein it denied the petition-
er’s amended petition. In the court’s memorandum of
decision, it determined, inter alia, that the petitioner
had failed to show ineffective assistance based upon
his trial counsel’s choice not to seek a lesser included
offense instruction on unlawful restraint in either the
first or second degree.4 The habeas court also found
that the petitioner had failed to prove prejudice in accor-
dance with Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as a result of his trial
counsel’s failure to request a lesser included offense
instruction. Most notably, the court found that the
record demonstrated ‘‘ample evidence justifying proof
of all the elements of kidnapping [in the] second degree’’
and that the jury was presumed to have acted in accor-
dance with the trial court’s proper instructions as to
the crime charged.
The petitioner sought certification to appeal to this
court on December 10, 2014, which the habeas court
granted on December 11, 2014.5 This appeal followed.
Additional facts will be set forth as necessary.
We begin by setting forth the appropriate standard
of review. ‘‘The standard to be applied . . . in
determining whether an attorney effectively repre-
sented a criminal defendant is set forth in Strickland
v. Washington, [supra, 466 U.S. 668] . . . . In order for
a criminal defendant to prevail on a constitutional claim
of ineffective assistance of counsel, he must establish
both (1) deficient performance, and (2) actual preju-
dice. . . . Thus, he must establish not only that his
counsel’s performance was deficient, but that as a result
thereof he suffered actual prejudice, namely, that there
is a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would
have been different.’’ (Internal quotation marks omit-
ted.) Carey v. Commissioner of Correction, 86 Conn.
App. 180, 182, 860 A.2d 776 (2004), cert. denied, 272
Conn. 915, 866 A.2d 1283 (2005).
‘‘In an appeal from the denial of a habeas writ, the
burden imposed upon the petitioner is higher than that
imposed on him in a direct appeal. In order to succeed
in a claim of ineffective assistance of counsel, the peti-
tioner must prove: (1) that his counsel’s performance
fell below the required standard of reasonable compe-
tence or competence displayed by lawyers with ordi-
nary training and skill in the criminal law; and (2) that
this lack of competence contributed so significantly to
his conviction as to have deprived him of a fair trial.
. . . A reviewing court can find against the petitioner
on whichever ground is easier.’’ (Citations omitted;
internal quotation marks omitted.) Walton v. Commis-
sioner of Correction, 57 Conn. App. 511, 517–18, 749
A.2d 666, cert. denied, 254 Conn. 913, 759 A.2d 509
(2000).
‘‘Judicial scrutiny of counsel’s performance 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 unsuc-
cessful, 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 counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inher-
ent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy. . . . [C]oun-
sel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment.’’ (Citations
omitted; internal quotation marks omitted.) Strickland
v. Washington, supra, 466 U.S. 689–90; accord Bova v.
Warden, Superior Court, judicial district of New Haven,
Docket No. CV-99-0423653-S, 2004 WL 2222568, *2 (Sep-
tember 1, 2004), aff’d, 95 Conn. App. 129, 894 A.2d 1067,
cert. denied, 278 Conn. 920, 901 A.2d 43 (2006). ‘‘This
court cannot disturb the underlying facts found by the
habeas court unless they are clearly erroneous. . . .
[T]he habeas judge is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Minor v. Commis-
sioner of Correction, 150 Conn. App. 756, 762, 92 A.3d
1008, cert. denied, 314 Conn. 903, 99 A.3d 1168 (2014).
‘‘In a habeas appeal, although this court cannot disturb
the underlying facts found by the habeas court unless
they are clearly erroneous, our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary.’’ (Internal quotation
marks omitted.) Atkinson v. Commissioner of Correc-
tion, 125 Conn. App. 632, 638, 9 A.3d 407 (2010), cert.
denied, 300 Conn. 919, 14 A.3d 1006 (2011).
Connecticut appellate courts repeatedly have
acknowledged that a criminal defendant does not have
a fundamental constitutional right to a jury instruction
on every lesser included offense. State v. Colon, 272
Conn. 106, 220, 864 A.2d 666 (2004), cert. denied, 546
U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); see
also State v. Whistnant, 179 Conn. 576, 583, 427 A.2d
414 (1980); State v. Langley, 128 Conn. App. 213, 231,
16 A.3d 799, cert. denied, 302 Conn. 911, 27 A.3d 371
(2011); State v. Marsha P., 126 Conn. App. 497, 504, 11
A.3d 1164 (2011). A criminal defendant may be entitled
to a lesser included offense instruction, however, pursu-
ant to the ‘‘common law doctrine that requires a defen-
dant to demonstrate his compliance with . . . four
conditions stated in [State v. Whistnant, supra, 588]:
(1) an appropriate instruction is requested by either the
state or the defendant; (2) it is not possible to commit
the greater offense, in the manner described in the
information or bill of particulars, without having first
committed the lesser; (3) there is some evidence, intro-
duced by either the state or the defendant, or by a
combination of their proofs, which justifies conviction
of the lesser offense; and (4) the proof [on] the element
or elements which differentiate the lesser offense from
the offense charged is sufficiently in dispute to permit
the jury consistently to find the defendant [not guilty]
of the greater offense but guilty of the lesser.’’ (Internal
quotation marks omitted.) State v. Rasmussen, 225
Conn. 55, 65, 621 A.2d 728 (1993). In the context of a
direct appeal, ‘‘an appellate court must reverse a trial
court’s failure to give the requested instruction if we
cannot as a matter of law exclude [the] possibility that
the defendant is guilty only of the lesser offense.’’ (Inter-
nal quotation marks omitted.) State v. Colon, supra,
220–21.
I
We first address the petitioner’s claim that his trial
counsel’s failure to request a lesser included offense
instruction on unlawful restraint in either the first or
second degree amounted to deficient performance. The
petitioner claims that his trial counsel rendered defi-
cient performance because the evidence admitted at
trial ‘‘clearly warranted a lesser included [offense]
instruction on unlawful restraint in either the first or
second degrees’’;6 (footnote omitted); their failure to
request such an instruction was not part of a reasonable
trial strategy; and their actions did not demonstrate the
‘‘only justification that would have excused [this] failure
. . . [a] so-called ‘all or nothing’ approach,’’ whereby
they avoided requesting a lesser included offense
instruction in the hope that the jury would return a
verdict of not guilty on the greater offense and, there-
fore, would acquit the petitioner.
In opposition, the respondent argues that the petition-
er’s trial counsel did not render deficient performance
because their actions did demonstrate an ‘‘all or noth-
ing’’ strategy, which was reasonable in the petitioner’s
case because the state had charged him only with sec-
ond degree kidnapping, and not second degree kidnap-
ping along with unlawful restraint in the first or second
degree. We agree with the respondent.
The following additional facts and analysis set forth
by the habeas court are relevant to the petitioner’s
claim: ‘‘Neither Attorney Becker nor Attorney Moore
testified at the habeas trial. The petitioner offered the
testimony of Attorney Robert McKay to support [his
ineffective assistance argument with respect to his trial
counsel’s failure to request a lesser included offense
instruction]. Attorney McKay opined that the decision
whether to seek the possibility of conviction on lesser
[included] offenses rests with the client and that he,
personally, would have sought instructions on such
offenses on behalf of the petitioner.
‘‘Attorney McKay reasoned that the incident at the
core of the events which gave rise to the charges against
the petitioner was essentially an escalation of a domes-
tic dispute between the petitioner and the victim. Attor-
ney McKay felt that the availability of conviction for
lesser [included] crimes would have provided the jury
with an outlet if its members concurred with that assess-
ment. Instead, the jurors were left with the all-or-noth-
ing alternatives of conviction for kidnapping [in the]
second degree or acquittal.
‘‘Attorney McKay never testified, however, that [trial]
counsel, who chose the all-or-nothing course, such as
Attorneys Becker and Moore did, engaged in conduct
which fell below acceptable, professional standards. As
a result, no expert witness supported a conclusion that
the petitioner’s [trial] counsel were ineffective, within
the meaning of the performance prong of the Strickland
standard, for leaving the jury with the convict-or-acquit
option only.
‘‘As a preliminary matter, contrary to Attorney
McKay’s opinion, it appears that the decision to seek or
forgo jury instructions as to lesser [included] offenses
other than those charged vests in [trial] counsel rather
than the client. [Reeves v. Commissioner of Correction,
119 Conn. App. 852, 862, 989 A.2d 654, cert. denied, 296
Conn. 906, 992 A.2d 1135 (2010)]. ‘[T]his decision is
in the realm of strategy decisions to be made by the
attorney.’ Id. Attorney McKay never consulted the peti-
tioner nor interviewed his former [trial] counsel about
[counsel’s] decision not to pursue the option of allowing
the jury to convict on [lesser] included offenses.
‘‘Declining to seek such instructions is not ineffective
assistance per se which satisfies the performance part
of the Strickland test, [Fair v. Warden, 211 Conn. 398,
403, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.
Ct. 512, 107 L. Ed. 2d 514 (1989)]. Indeed, the decision
to forgo such lesser included offense conviction possi-
bilities, even where a criminal defendant is legally enti-
tled to such instructions, does not render that
representation substandard. [Beasley v. Commissioner
of Correction, 47 Conn. App. 253, 262, 704 A.2d 807
(1997), cert. denied, 243 Conn. 967, 707 A.2d 1268
(1998)]. There is no universal stratagem governing
whether defense counsel should seek such instructions.
Id., 264. ‘What constitutes effective assistance of coun-
sel cannot be determined with yardstick precision, but
necessarily varies according to the unique circum-
stances of each representation.’ Id.
‘‘By limiting the jury’s focus to one charge, the prose-
cution risks complete acquittal even though the defen-
dant may have committed a provable crime of a lesser
nature. In the present case, Attorney Becker’s summa-
tion strummed just this chord. He repeatedly pointed
out that, although the evidence might establish that the
petitioner engaged in some wrongdoing, that activity
never demonstrated proof of all the elements of kidnap-
ping [in the] second degree beyond a reasonable doubt.
He stressed that the petitioner could only be assessed
with respect to the crime with which he was charged,
no matter if the jury concluded that he was guilty of
some other offense. This court finds that the petitioner
has failed to meet his burden of proving, by a preponder-
ance of the evidence that this tactical approach was
deficient under the performance prong of Strickland.’’
(Emphasis in original.)
In addition to noting the habeas court’s findings of
fact, we agree with its assessment of Attorney Becker’s
closing argument. Specifically, we note that Attorney
Becker repeatedly informed the jury that the petitioner
had been charged only with kidnapping in the second
degree, he repeatedly summarized the evidence
adduced at trial as it related to the altercation between
the petitioner and the victim, and he concluded these
summaries by stating that such evidence did not prove
kidnapping in the second degree. Furthermore, Attor-
ney Becker stressed the state’s decision not to charge
the petitioner with other lesser offenses, as he asserted
that ‘‘the state’s attorney decided not to charge [the
petitioner] with [u]nlawful [r]estraint or . . . [a]ssault
. . . [which was] their choice.’’7 Finally, Attorney
Becker distinguished the serious nature of the kidnap-
ping charge from the nature of any other possible charge
that the state could have brought against the petitioner,
as he asserted in his closing argument that kidnapping
in the second degree is ‘‘extremely serious,’’ that it is
a ‘‘very, very serious charge,’’ and that there is a ‘‘big
difference’’ between kidnapping and unlawful restraint
or assault.
With respect to his burden of proof in showing defi-
cient performance, the petitioner must ‘‘show that coun-
sel’s representation fell below an objective standard of
reasonableness.’’ (Internal quotation marks omitted.)
Dwyer v. Commissioner of Correction, 102 Conn. App.
838, 841, 927 A.2d 347, cert. denied, 284 Conn. 925,
933 A.2d 724 (2007). In our assessment of whether the
petitioner has met his burden, we ‘‘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.’’ (Internal quota-
tion marks omitted.) Id., 842.
As a preliminary matter, we note that at the habeas
trial, the petitioner did not present testimony from his
trial counsel.8 Consequently, the court, in ruling on the
petition, did not have the benefit of counsel’s explana-
tion, if any, for counsel’s failure to request the instruc-
tion at issue. On the basis of its review of the criminal
trial transcripts and the testimony from the habeas trial,
the habeas court determined that trial counsel’s deci-
sion not to request a lesser included offense instruction
might have been part of an overall trial strategy, rather
than the result of negligence or inadvertence. A habeas
petitioner’s failure to present trial counsel’s testimony
as to the strategy employed at a petitioner’s criminal
trial hampers both the court at the habeas trial and the
reviewing court in their assessments of a trial strategy.
‘‘[T]rial counsel’s testimony is not necessary to our
determination that a particular decision might be con-
sidered sound trial strategy.’’ Bullock v. Whitley, 53 F.3d
697, 701 (5th Cir. 1995). Lacking the ability to determine
directly the reasons for trial counsel’s actions, courts
must examine all other available evidence from the
trial record in order to determine whether the conduct
complained of might be considered sound trial strategy.
See, e.g., Fink v. Lockhart, 823 F.2d 204, 206 (8th Cir.
1987); Quinones v. Miller, Docket No. 01 Civ. 10752
(WHP), 2003 WL 21276429 (S.D.N.Y. June 3, 2003);
Henry v. Scully, 918 F. Supp. 693, 715 (S.D.N.Y. 1995),
aff’d, 78 F.3d 51 (2d Cir. 1996); Jones v. Warden, Supe-
rior Court, judicial district of Tolland, Docket No. CV-
XX-XXXXXXX, 2012 WL 3853806 (July 31, 2012), appeal
dismissed, 152 Conn. App. 110, 96 A.3d 1271, cert.
denied, 314 Conn. 931, 102 A.3d 83 (2014); Jenkins v.
Warden, Superior Court, judicial district of Tolland,
Docket No. CV-05-4000720, 2010 WL 1664958 (March
31, 2010), appeal dismissed, 134 Conn. App. 901, 37 A.3d
204, cert. denied, 304 Conn. 923, 41 A.3d 662 (2012);
Bova v. Warden, supra, 2004 WL 2222568.
Although a reviewing court should adhere to the
strong presumption that trial counsel’s strategic deci-
sions are reasonable until the habeas petitioner has
shown otherwise; see Johnson v. Commissioner of Cor-
rection, 36 Conn. App. 695, 705, 652 A.2d 1050, cert.
denied, 233 Conn. 912, 659 A.2d 183 (1995); Gipson v.
Commissioner of Correction, 54 Conn. App. 400, 437,
735 A.2d 847 (1999) (Lavery, J., concurring), rev’d on
other grounds, 257 Conn. 632, 778 A.2d 121 (2001); it
should not speculate as to trial counsel’s reasons for
making such decisions. See, e.g., Bewry v. Warden,
Superior Court, judicial district of Tolland, Docket No.
CV-931665, 2001 WL 1249844 (October 2, 2001), appeal
dismissed, 73 Conn. App. 547, 808 A.2d 746 (2002), cert.
denied, 266 Conn. 918, 837 A.2d 801 (2003). Instead, the
reviewing court may look to the record of the criminal
trial as circumstantial evidence of trial counsel’s strat-
egy. In the present case, we particularly focus on Attor-
ney Becker’s closing argument.
On the basis of our review of the record and the
relevant case law, we conclude that the petitioner has
failed to overcome the strong presumption that his trial
counsel’s decision not to ask for an instruction on a
lesser included offense amounted to a reasonable strat-
egy in representing him at his criminal trial. The deci-
sion of the petitioner’s trial counsel not to seek a lesser
included offense instruction during the petitioner’s
criminal trial was particularly reasonable in light of the
fact that the state ultimately charged the petitioner only
with having committed kidnapping.
In State v. Salamon, 287 Conn. 509, 546, 949 A.2d 1092
(2008), our Supreme Court held that the legislature, ‘‘in
replacing a single, broadly worded kidnapping provi-
sion with a gradated scheme that distinguishes kidnap-
pings 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. . . . We empha-
sized, however, that our holding [did] not represent a
complete refutation of the principles established by
our prior kidnapping jurisprudence. First, in order to
establish a kidnapping, the state is not required to estab-
lish any minimum period of confinement or degree of
movement. When that confinement or movement is
merely incidental to the commission of another crime,
however, the confinement or movement must have
exceeded that which was necessary to commit the other
crime.’’ (Citation omitted; emphasis added; footnote
omitted; internal quotation marks omitted.) State v.
Kitchens, 299 Conn. 447, 455–56, 10 A.3d 942 (2011).
Furthermore, our Supreme Court ‘‘emphasized in Sala-
mon, in which the defendant ultimately was not tried
for assault, that a defendant is entitled to an instruc-
tion that he cannot be convicted of kidnapping if the
restraint imposed on the victim was merely incidental
to the assault, regardless of whether the state elects to
try the defendant for assault, because the facts reason-
ably would support an assault conviction. . . . We
noted in footnote 35 of that opinion that [t]o conclude
otherwise would give the state carte blanche to deprive
the defendant of the benefit of such an instruction
merely by declining to charge him with the underlying
crime, which . . . generally will carry a far less seri-
ous maximum possible penalty than the kidnapping
charge.’’ (Citation omitted; emphasis added; internal
quotation marks omitted.) Id., 457.
During his closing argument, Attorney Becker
acknowledged that the evidence adduced at the peti-
tioner’s criminal trial supported other uncharged
offenses, including unlawful restraint and assault. Fur-
thermore, the court instructed the jury that ‘‘[t]he state
ha[d] offered evidence that the [petitioner] committed
another offense at the time of the alleged kidnapping
. . . . [s]imple [a]ssault.’’ In order to prove beyond a
reasonable doubt that the petitioner was guilty of having
committed kidnapping in the second degree, the state,
pursuant to Salamon, at least had to prove that the
petitioner had the specific intent to restrain the victim
to a greater degree than was necessary in order to
commit some other crime against her. See State v. Sala-
mon, supra, 287 Conn. 550 n.35. If the state failed to
meet this burden, then the jury would have to find the
petitioner not guilty of committing kidnapping. Id., 550.
Our review of the record indicates that the jury was
instructed on the state’s burden pursuant to Salamon.9
Our review of Attorney Becker’s closing argument
and the testimony submitted at the criminal trial leads
us to infer that 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. This court previously has recognized the
reasonableness of such a strategy. See Reeves v. Com-
missioner of Correction, supra, 119 Conn. App. 862
(‘‘[i]t may be sound trial strategy not to request a lesser
included offense instruction, hoping that the jury will
simply return a not guilty verdict’’ [internal quotation
marks omitted]). From a more general standpoint, it
appears that petitioner’s trial counsel, and particularly
Attorney Becker, by repeatedly referring to the absence
of potentially justifiable, less serious charges against
the petitioner, argued that the state had overcharged the
petitioner and that the entire incident was a domestic
dispute that had been exaggerated as a kidnapping by
both the victim and by the state.
The evidence admitted at the petitioner’s criminal
trial established, inter alia, that the petitioner grabbed
the victim by her hair in her car and hit her face against
the dashboard; that he held the victim’s head down as
he drove her car; and that, after having pulled over the
victim’s car at a rest area, he grabbed the victim and
attempted to restrain her from exiting the car as he
subsequently tried to drive away with her before she
ultimately escaped his grasp and left the car. In order
to prove that the petitioner was guilty of kidnapping in
the second degree, the state had the burden of proving,
beyond a reasonable doubt, that he ‘‘abducted’’ the vic-
tim, meaning that he ‘‘restrain[ed] [her] with [the] intent
to prevent [her] liberation by either . . . secreting or
holding [her] in a place where [she was] not likely to
be found, or . . . using or threatening to use physical
force or intimidation.’’ General Statutes § 53a-91 (2);
see also State v. Franko, supra, 142 Conn. App. 460–61.10
More importantly, as we previously noted, the state had
the additional burden, pursuant to Salamon, of proving
beyond a reasonable doubt that the petitioner had the
intent to prevent the victim’s liberation for a longer
period of time or to a greater degree than that which
was necessary to commit an assault against her, and
that his restraint of her was not merely incidental to the
assault. See State v. Salamon, supra, 287 Conn. 542–43.
In the present case, it is possible that a lesser included
offense instruction on unlawful restraint actually may
have stressed the difference between this offense and
kidnapping, and it may have elucidated that the petition-
er’s actions against the victim indeed constituted a kid-
napping. Nevertheless, on the basis of the evidence
adduced at trial, we believe that reasonable minds could
differ on whether the state had met its burden of proving
that the petitioner had demonstrated the requisite intent
to support a kidnapping conviction. The petitioner’s
trial counsel presumably recognized this and sought to
obtain a complete acquittal for the petitioner by not
seeking a lesser included offense instruction on unlaw-
ful restraint.
In support of the petitioner’s argument that his trial
counsel rendered deficient performance by not
requesting a lesser included offense instruction on
unlawful restraint, he attempts to distinguish his case
from two Connecticut habeas cases in which trial repre-
sentation similar to that at issue in the present case
was deemed to be effective assistance, Fair v. Warden,
211 Conn. 398, 559 A.2d 1094, cert. denied, 493 U.S. 981,
110 S. Ct. 512, 107 L. Ed. 2d 514 (1989), and Reeves v.
Commissioner of Correction, supra, 119 Conn. App.
852.11 The petitioner also tries to draw similarities
between his case and two cases decided by the appellate
courts of our sister states, Washington v. State, 113 So.
3d 1028 (Fla. App. 2013), and People v. Gallagher, 980
N.E.2d 140 (Ill. App. 2012), in which trial counsel’s fail-
ures to seek certain jury instructions were deemed to
be ineffective assistance. Aside from the fact that these
cases are not binding on our analysis, we find the peti-
tioner’s reliance on them to be misplaced.12
Despite the fact that the petitioner’s trial counsel may
not have been trying to seek the jury’s sympathy for
the petitioner; see Fair v. Warden, supra, 211 Conn.
405–407; and despite the fact that the evidence of the
greater offense charged against the petitioner may have
been stronger than it was in Reeves v. Commissioner
of Correction, supra, 119 Conn. App. 862, the petition-
er’s trial counsel evidently pursued a complete acquittal
for the petitioner, which was a reasonable strategy
under the circumstances. The petitioner’s trial counsel
may have believed that the state increased the likeli-
hood that the petitioner would not face criminal liability
relevant to the events at issue by charging him only
with one offense, kidnapping in the second degree, as
opposed to multiple offenses. Furthermore, the peti-
tioner’s trial counsel may have believed that the state
also had taken the risk—by charging the petitioner only
with a kidnapping offense—that it would succeed in
proving that the petitioner’s restraint of the victim was
not merely incidental to his commission of some other
crime against her, such as assault. See State v. Salamon,
supra, 287 Conn. 542, 546–47, 550.
Although the petitioner’s expert witness at his habeas
trial, Attorney McKay, a criminal defense attorney,
opined otherwise, we agree with the trial court’s deter-
mination that the choice not to seek a lesser included
offense instruction on unlawful restraint at the petition-
er’s criminal trial was not a tactical approach that was
so unreasonable that it amounted to deficient perfor-
mance under Strickland v. Washington, supra, 466 U.S.
668. Attorney McKay testified that the petitioner’s trial
counsel should have requested a jury instruction on
unlawful restraint in the second degree at his criminal
trial primarily because Attorney Becker repeatedly had
referred to unlawful restraint in his closing argument,
and the maximum penalties for kidnapping are vastly
greater than those for unlawful restraint. Furthermore,
McKay testified that because the offenses were quite
similar, providing an unlawful restraint instruction may
have created confusion in the minds of the jury and,
thus, may have led the jury to find the petitioner guilty
only of committing the lesser included offense.
We conclude, however, that in the face of these con-
siderations, the petitioner’s trial counsel acted within
the boundaries of professional reasonableness by focus-
ing the jury’s attention on the seriousness of the kidnap-
ping charge and by not requesting the lesser included
offense instruction. Furthermore, as Attorney
Ornousky, the prosecutor from the petitioner’s criminal
trial, indicated in her testimony at the habeas trial, this
strategy fit the narrative that the petitioner’s trial coun-
sel tried to convey to the jury: ‘‘that this was an over-
reaching on [the] part of the state, that [it] had
overcharged . . . that this was something, but not a
kidnapping, and that . . . the victim had exaggerated
what had happened and the state was overzealous
. . . .’’ Accordingly, we conclude that the petitioner has
failed to prove deficient performance because he has
failed to prove that his trial counsel, by failing to pursue
an instruction on lesser included offenses, performed
in a way that ‘‘fell below the required standard of reason-
able competence or competence displayed by lawyers
with ordinary training and skill in the criminal law
. . . .’’ (Internal quotation marks omitted.) Walton v.
Commissioner of Correction, supra, 57 Conn. App. 518.
II
Even if we did conclude that the petitioner’s trial
counsel rendered deficient performance by failing to
request an instruction on a lesser included offense, we
nevertheless conclude that such action did not preju-
dice the petitioner’s defense. The petitioner claims that
his trial counsel’s failure to request an instruction on
the lesser included offense of either unlawful restraint
in the first or second degree prejudiced his defense
because if the jury had received such an instruction, it
would have found him guilty of only an unlawful
restraint offense, and not kidnapping.13 In opposition,
the respondent argues that trial counsel’s choice not
to request an instruction on an unlawful restraint
offense did not prejudice the petitioner’s defense. We
agree with the respondent.
‘‘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 [peti-
tioner] 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 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, supra, 150 Conn.
App. 761–62.
We conclude that the petitioner has failed to meet
his burden of proving that but for his trial counsel’s
failure to request a lesser included offense instruction
on unlawful restraint in the first or second degree, there
is a reasonable probability that the jury would have
had a reasonable doubt as to his guilt with respect to
kidnapping in the second degree. In order to prove that
the petitioner was guilty of kidnapping in the second
degree, the state had to prove beyond a reasonable
doubt that he abducted the victim by restraining her
with the intent to prevent her liberation by either secre-
ting or holding her in a place where she was not likely
to be found, or by using or threatening to use physical
force or intimidation. See General Statutes §§ 53a-91 (2)
and 53a-94. If the petitioner had been tried for unlawful
restraint in the first degree, the state would have had
the burden of proving beyond a reasonable doubt that
the petitioner restrained the victim under circum-
stances which exposed her to a substantial risk of physi-
cal injury. General Statutes § 53a-95.14 If the petitioner
had been tried for unlawful restraint in the second
degree, the state would have had the burden of proving
beyond a reasonable doubt that the petitioner
restrained the victim. General Statutes § 53a-96.
In light of our Supreme Court’s holding in State v.
Salamon, supra, 287 Conn. 542–43, the state also had
the burden of proving, with respect to the intent element
required for a kidnapping conviction, that the petition-
er’s restraint of the victim was sufficiently disconnected
from, and not merely incidental to, his assault of her.
See Wilcox v. Commissioner of Correction, 162 Conn.
App. 730, 747, 129 A.3d 796 (2016). In cases following
Salamon, Connecticut appellate courts have upheld
kidnapping convictions particularly in cases where the
state presented strong evidence showing that a defen-
dant had restrained a victim for a substantial period of
time, that a defendant had moved a victim a significant
distance against his or her will, and that a defendant
had harmed a victim in ways that went beyond the
purpose of another offense against the victim, such as
an assault. See id., 746; see also State v. Hampton,
293 Conn. 435, 463–64, 988 A.2d 167 (2009); Eric M.
v. Commissioner of Correction, 153 Conn. App. 837,
846–47, 108 A.3d 1128 (2014), cert. denied, 315 Conn.
915, 106 A.3d 308 (2015); State v. Nelson, 118 Conn.
App. 831, 860–62, 986 A.2d 311, cert. denied, 295 Conn.
911, 989 A.2d 1074 (2010).
In the present case, the state presented strong evi-
dence that the petitioner’s restraint of the victim was
not merely incidental to his commission of an assault
against her. The evidence adduced at the petitioner’s
criminal trial established that shortly after the petitioner
had entered the victim’s car, he assaulted her when he
grabbed her by her hair and hit her face against the
dashboard. Furthermore, the evidence established that
this assault occurred immediately after the petitioner
had started the victim’s car, and after she had sounded
her car horn in an effort to draw attention to the peti-
tioner’s actions and presumably to summon assistance.
The evidence established that the petitioner then pro-
ceeded to hold the victim’s head down as he drove her
in her car, on a highway, from the Stamford grocery
store to the New Canaan rest area. Finally, the evidence
established that after having pulled over the victim’s
car at the rest area, the petitioner grabbed the victim
and attempted to prevent her from exiting the car as
he once again tried to drive away with her before she
ultimately escaped his grasp and left the car.
Thus, the evidence presented by the state strongly
supported a kidnapping conviction in light of the fact
that it established that the petitioner had abducted the
victim by preventing her liberation through the use of
physical force. General Statutes §§ 53a-91 (2) and 53a-
94 (a). The timing of the petitioner’s actions, as shown
by the evidence, strongly indicates that the petitioner
used physical force on the victim in order to prevent her
liberation, considering that the evidence demonstrated
that he hit her head against the dashboard immediately
after she tried to summon help and after he had started
her car, that he held her head down as he drove her in
her car on a busy highway, and that he forcibly grabbed
her as she began to escape from the car at the New
Canaan rest area. With respect to the requisite intent
pursuant to State v. Salamon, supra, 287 Conn. 542–43,
the evidence established that the petitioner’s acts of
restraint against the victim were not merely incidental
to his assault of her. See id., 550 n.35. After he assaulted
the victim, the petitioner then further restrained her as
he drove her in her car from the Stamford grocery store
to the New Canaan rest area. One can reasonably infer
that the petitioner’s restraint of the victim, which, at
the latest, began as soon as he hit her head against
the dashboard after she sounded the horn, and which
continued until he grabbed her by her belt and pants
until her pants ripped at the crotch area as she began
her escape from the car at the New Canaan rest area,
was carried out with the intent to avoid detection and
to prevent the victim from summoning assistance. Fur-
thermore, one reasonably can infer that the petitioner
intended to prevent the victim’s liberation in order to
perpetrate more than a single offense against her, espe-
cially in light of the evidence establishing that he drove
her away in her car after he had hit her head against
the dashboard and after she had attempted to draw
attention to the situation.
In light of the strength of the state’s case, we are not
persuaded that if the jury had been charged with respect
to the lesser included offense at issue, it is reasonably
probable that the jury would have decided the issues
differently. Therefore, we conclude that the petitioner
has failed to meet his burden of proving that his trial
counsel’s failure to request a lesser included offense
instruction on unlawful restraint in either the first or
second degree prejudiced his defense. Additionally, as
we decided in part I of this opinion, the petitioner has
failed to prove that his trial counsel’s failure amounted
to deficient performance. Because the petitioner is
unable to satisfy either of these burdens, he has failed to
prove ineffective assistance of counsel and his habeas
petition was properly denied.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner’s appeal focuses significantly on the representation
afforded to him by Attorney Becker, but for purposes of this opinion, ‘‘trial
counsel’’ shall refer to both Attorneys Becker and Moore. Where appropriate,
we shall refer to each attorney by his respective name.
2
General Statutes § 53a-94 provides in relevant part: ‘‘(a) A person is guilty
of kidnapping in the second degree when he abducts another person. . . .’’
3
We note that the petitioner was charged in a part B information with
being a persistent dangerous felony offender, pursuant to General Statutes
§ 53a-40 (a) (2) (A). The jury found the petitioner guilty of being a persistent
dangerous felony offender on July 9, 2010, but the court granted the petition-
er’s oral motion for acquittal on this charge.
4
We focus our opinion on only the petitioner’s claim alleging ineffective
assistance due to his trial counsel’s failure to request a lesser included
offense instruction on unlawful restraint in the first or second degree, and we
deem the other claims in his third amended habeas petition to be abandoned
because, on appeal, he has not briefed any such claims. See Giannotti v.
Warden, 26 Conn. App. 125, 130 n.5, 599 A.2d 26 (1991), cert. denied, 221
Conn. 905, 600 A.2d 1359 (1992).
5
Among the issues set forth in the petition for certification to appeal was
the following: ‘‘Whether the court erred in finding that counsel was not
ineffective for failing to seek the lesser included offense?’’
6
General Statutes § 53a-95 sets forth the elements of unlawful restraint
in the first degree and it provides: ‘‘(a) A person is guilty of unlawful restraint
in the first degree when he restrains another person under circumstances
which expose such other person to a substantial risk of physical injury.
‘‘(b) Unlawful restraint in the first degree is a class D felony.’’
General Statutes § 53a-96 sets forth the elements of unlawful restraint in
the second degree and it provides: ‘‘(a) A person is guilty of unlawful restraint
in the second degree when he restrains another person.
‘‘(b) Unlawful restraint in the second degree is a class A misdemeanor.’’
7
The petitioner’s trial counsel confined the jury’s consideration to the
offense that the petitioner was charged with committing, kidnapping in the
second degree, as exhibited by the following excerpts from Attorney Beck-
er’s closing argument: ‘‘Even if they had a fight in the car, then charge [the
petitioner] with . . . [a]ssault or [u]nlawful [r]estraint, not [k]idnapping in
the [s]econd [d]egree. . . . But, [the petitioner] is not being charged with
. . . [u]nlawful [r]estraint. And he’s not being charged with [a]ssault. Maybe,
if he had been, maybe he’d be convicted on those. Not [k]idnapping in the
[s]econd [d]egree.
***
‘‘So, what went on in that car? I don’t know. Certainly they had an alterca-
tion. . . . But it’s not [k]idnapping in the [s]econd [d]egree. That it’s not.
It could be [a]ssault, [s]imple [a]ssault. And it could be [u]nlawful [r]estraint.
I don’t know. But, it’s not [k]idnapping in the [s]econd [d]egree. It’s a
big difference.
***
‘‘Sure, but again, he’s got to drive and what happened in that car, I don’t
know. . . . But it’s not [k]idnapping in the [s]econd [d]egree. That it’s not.
It could be [a]ssault, [s]imple [a]ssault. And it could be [u]nlawful [r]estraint.
I don’t know. But, it’s not [k]idnapping in the [s]econd [d]egree.
***
‘‘Do the jeans look bad? Yeah, they do. Does her face have some damage
on it? Yeah, it does. That doesn’t mean he kidnapped her in the [s]econd
[d]egree. [He] may have assaulted her in that car. I don’t know. Charge him
with [a]ssault [t]hree or [s]imple [a]ssault. I don’t know what happened in
that car. . . . But, [the state] didn’t charge him with those offenses. They
decided to charge him with [k]idnapping in the [s]econd [d]egree.
***
‘‘So, if you weigh all that. And weigh her statements. And weigh a lot of
things here. Other than emotions. And other than what he may or may not
have done, which was never charged. I don’t see how you can come to any
other conclusion, considering the seriousness of this charge, other than not
guilty. Because the [s]tate has not proven beyond any reasonable doubt that
[the petitioner] is guilty of [k]idnapping in the [s]econd [d]egree. As I said,
maybe he’s guilty of [a]ssault. He may even be guilty of [u]nlawful [r]estraint.
It’s not the charge here, remember that.’’
8
Neither Attorney Becker nor Attorney Moore testified at the petitioner’s
habeas trial on November 20, 2014. The habeas trial transcript reflects
that the petitioner’s habeas counsel attempted to have Attorney Becker
subpoenaed to testify at the habeas trial, but due to the fact that he was
from New York, a subpoena was unable to be issued to him. The transcript
also reveals that Attorney Becker did appear at an earlier scheduled date
for the habeas proceeding, but the case did not go forward on that date
and he was unable to testify at that time.
9
Specifically, the court instructed the jury as follows: ‘‘The [petitioner]
is charged with [k]idnapping in the [s]econd [d]egree. The [s]tatute defining
this offense reads in pertinent part as follows. A person is guilty of [k]idnap-
ping in the [s]econd [d]egree when he abducts another person.
‘‘For you to find the [petitioner] guilty of this charge, the [s]tate must
prove beyond a reasonable doubt, that the [petitioner] abducted [the victim].
Abduct means to restrain a person with the intent to prevent her liberation
by using or threatening to use physical force or intimidation.
‘‘The [petitioner] does not need to actually use force. He need only threaten
to use force in such a manner that [the victim] reasonably believed that
force would be used if she tried to escape. Restrain means to restrict a
person’s movements, intentionally and unlawfully, in such a manner as to
interfere substantially with her liberty by moving her from one place to
another; or by confining her either in the place where the restriction com-
mences or in a place to which she has been moved without consent.
‘‘There is no requirement that the movement be of any specific distance
or that the confinement lasts any specific period of time. There need not
be any movement at all. The person could be confined by preventing her
from leaving a place where she was. Any apparent consent on the part of
[the victim] to the movement or confinement, must have been actual and
not simply acquiescence brought on by force, fear, shock, or deception.
***
‘‘The state has offered evidence that the [petitioner] committed another
offense at the time of the alleged kidnapping.
‘‘I am referring to the [victim’s] testimony that at the time of the alleged
crime, the [petitioner] grasped her by her hair down, [a]nd while doing so,
struck her head against the dashboard of her vehicle.
‘‘That testimony is evidence of the crime of [s]imple [a]ssault. The [peti-
tioner], however, is not charged with that crime and you will not be rendering
a verdict on that charge. A person is guilty of [s]imple [a]ssault when, with
intent to cause physical injury to another person, he causes such injury to
that person.
***
‘‘To establish the intent required for the abduction element of the crime
of [k]idnapping, the [s]tate must prove that the [petitioner] intended to
prevent the [victim’s] liberation for a longer time, or to a greater degree
than that which is necessary to commit another crime; here, the crime of
[s]imple [a]ssault.
‘‘In this regard, the [petitioner’s] intent to prevent the [victim’s] liberation
may be manifest by confinement or movement that is more than merely
incidental to the other offense. In other words, if the confinement or move-
ment is so much a part of the other offense that it could not have been
committed without such acts, then the requisite intent to prevent the [vic-
tim’s] liberation has not been established.
‘‘There is, however, no minimal period of confinement or degree of move-
ment necessary to establish [k]idnapping. Whether the movement or confine-
ment of the [victim] is merely incidental to another offense is a question
of fact for you to determine.
‘‘In determining whether the [petitioner] intended to prevent the [victim’s]
liberation beyond the degree necessary to commit the other offense, you may
consider all of the relevant facts and circumstances of the case, including but
not limited to the following factors.
‘‘The nature and duration of the [victim’s] movement or confinement by
the [petitioner]. Whether that movement [or] confinement occurred during
the commission of the 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 [petitioner’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.
***
‘‘In summary, the state must prove beyond a reasonable doubt that the
[petitioner] abducted [the victim]. If you unanimously find that the state
has proved beyond a reasonable doubt, each of the elements of the crime
of [k]idnapping in the [s]econd [d]egree, then you shall find the [peti-
tioner] guilty.’’
10
If the petitioner had been tried for unlawful restraint, the state would
have had the burden of proving beyond a reasonable doubt that he
‘‘restrained’’ the victim, or restricted her ‘‘movements intentionally and
unlawfully in such a manner as to interfere substantially with [her] liberty
by moving [her] from one place to another, or by confining [her] either in
the place where the restriction commence[d] or in a place to which [she
had] been moved, without consent. . . .’’ General Statutes § 53a-91 (1).
11
The petitioner attempts to distinguish his case from Reeves and Fair
by arguing that his trial counsel’s decision not to seek a lesser included
offense instruction in his criminal trial was an unreasonable one. He notes
that in both Reeves and Fair, this court and our Supreme Court, respectively,
concluded that trial counsel’s failure to request lesser included offense
instructions did not amount to deficient performance because such actions
were part of a reasonable trial strategy. See Fair v. Warden, supra, 211
Conn. 405–407 (no ineffective assistance where there was overwhelming
evidence against petitioner of his commission of greater offense and coun-
sel’s trial strategy was to appeal to jury’s sympathy for petitioner’s disheart-
ening situation during time of his commission of crime); see also Reeves v.
Commissioner of Correction, supra, 119 Conn. App. 861–63 (no ineffective
assistance where greater offense charged was robbery, petitioner claimed
he was innocent because victim gave him allegedly stolen items as repayment
for debt, state’s evidence of petitioner’s use of force and larceny was weak,
and trial counsel discussed strategy with petitioner). The petitioner claims
that his trial counsel’s failure to request a lesser included offense instruction,
on the other hand, was not part of a reasonable strategy. Specifically, he
attempts to distinguish his case from Reeves by indicating that his trial
counsel did not discuss an ‘‘all-or-nothing’’ strategy with him, unlike trial
counsel in Reeves. The petitioner attempts to distinguish his case from Fair
by noting that his trial counsel did not try to seek the jury’s sympathy
because Attorney Becker during his closing argument expressly stated that
he did not even like the petitioner.
Our review of the record leads us to infer that it was reasonable for the
petitioner’s trial counsel not to seek the jury’s sympathy for the petitioner
in light of the evidence adduced at trial. Evidence of the petitioner’s prior
uncharged misconduct with respect to the victim was adduced at trial. The
victim testified that the petitioner had abused her verbally and physically
on numerous occasions in the past and that she had not filed any police
reports following these incidents. Attorney Becker, in his closing argument,
attempted to discredit the veracity of the victim’s testimony about these
prior instances of the petitioner’s misconduct, as he emphasized that there
were no corroborating witnesses for these prior instances. Attorney Becker
also attacked the victim’s credibility by indicating to the jury that despite
all of the alleged prior instances of the petitioner’s abusive behavior toward
the victim, the victim continued to maintain a relationship with him. Finally,
Attorney Becker essentially maintained that the altercation that had
occurred between the petitioner and the victim was a domestic dispute that
the victim had embellished as a kidnapping. In light of Attorney Becker’s
argument, and particularly his treatment of the evidence of the petitioner’s
prior uncharged misconduct with respect to the victim, we infer that the
petitioner’s trial counsel employed a reasonable trial strategy by not seeking
the jury’s sympathy for the petitioner, and by attempting to diminish the
importance and credibility of the victim’s testimony about her relationship
with the petitioner. Thus, we are not persuaded by the petitioner’s attempt
to distinguish his case from Fair v. Warden, supra, 211 Conn. 398, in this
manner.
We similarly are not persuaded by the petitioner’s attempt to distinguish
his case from Reeves v. Commissioner of Correction, supra, 119 Conn. App.
852. Although the habeas trial transcript reveals that the petitioner’s trial
counsel did not discuss the strategy of not requesting the lesser included
offense with him, we note that this court concluded in Reeves that the
‘‘decision [to not request a lesser included offense instruction] is in the realm
of strategy decisions to be made by the attorney.’’ Id., 862. Furthermore, we
note that it was reasonable for the petitioner’s trial counsel to not request
a lesser included offense instruction because, as in Reeves, the state’s evi-
dence of the greater offense charged against the petitioner was not so strong
as to preclude the possibility of an acquittal. See id.
12
We agree with the respondent’s argument that Washington v. State,
supra, 113 So. 3d 1028, and People v. Gallagher, supra, 980 N.E.2d 140, are
distinguishable from the petitioner’s case. We observe that Washington v.
State, supra, 1028, did not concern trial counsel’s failure to request a lesser
included offense instruction, but instead concerned trial counsel’s failure
to request a jury instruction on self-defense that applied not only to robbery
and murder, but also to aggravated assault and battery. Id., 1031. The case’s
applicability to the present case is therefore questionable. Furthermore, as
the respondent indicates in his brief, the Florida appellate court in Washing-
ton concluded that the evidence of the underlying crime adduced at trial
necessarily required that the jury be given instructions that trial counsel
failed to request, whereas in the present case, the evidence of the underlying
crime did not necessarily require an instruction on unlawful restraint. See id.
We also conclude that the petitioner relies on People v. Gallagher, supra,
980 N.E.2d 140, to no avail. Specifically, as the respondent indicates in his
brief, the defendant’s trial counsel in Gallagher expressly stated at the jury
charge conference that his strategy was to request a lesser included offense
instruction on trespass because the evidence supported only such an offense.
Id., 146. The defendant’s trial counsel subsequently requested a jury instruc-
tion on an inapplicable offense, which was not the lesser included offense
that he initially indicated he would have requested. Id., 146–47. Thus, the
Illinois Appellate Court concluded that the failure of the defendant’s trial
counsel to request the proper lesser included offense instruction amounted
to deficient performance because it was clearly the result of an error. Id.
147. In the present case, the petitioner’s trial counsel did not make any
express representations as to what their strategy at trial was, and we cannot
readily conclude that their failure to request an instruction on a lesser
included offense in the petitioner’s criminal trial was the result of an error,
since we must presume that counsel’s conduct might have constituted sound
trial strategy. See Johnson v. Commissioner of Correction, supra, 36 Conn.
App. 705.
13
Specifically, the petitioner argues that if the request had been made,
it ‘‘almost certainly would have been granted’’ because all of the other
requirements set forth in State v. Whistnant, supra, 179 Conn. 588, had been
met, and, given the facts of his case, the court would not have been able
to exclude the possibility that the petitioner could have been convicted of
only unlawful restraint in the first or second degree and not kidnapping in
the second degree. In this vein, the petitioner draws similarities between
the facts of his case and the facts of State v. Faria, 47 Conn. App. 159,
178–86, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266
(1998), in which this court held that a trial court’s failure to give a lesser
included offense instruction on unlawful restraint in the second degree was
improper because the evidence supported the giving of an instruction on
such an offense and the jury had received instructions on, inter alia, kidnap-
ping in the first degree.
14
We reiterate that ‘‘restrain’’ in this context means the following: ‘‘[T]o
restrict a person’s movements intentionally and unlawfully in such a manner
as to interfere substantially with his liberty by moving him from one place
to another, or by confining him either in the place where the restriction
commences or in a place to which he has been moved without consent.
. . .’’ General Statutes § 53a-91 (1).