Coltherst v. Commissioner of Correction

Full title: Jamaal Coltherst v. Commissioner of Correction

Court: Superior Court of Connecticut

Date published: Nov 19, 2019

CV154007268S (Conn. Super. Ct. Nov. 19, 2019)

Opinion

CV154007268S

11-19-2019

Jamaal Coltherst v. Commissioner of Correction

Bhatt, J.

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bhatt, Tejas, J.

MEMORANDUM OF DECISION

Bhatt, J.

The petitioner was convicted, after two separate jury trials in two different jurisdictions, of numerous offenses. He is currently serving a total effective sentence of 185 years’ incarceration. He challenges the legality of his convictions, alleging that trial counsel in each case rendered ineffective assistance during the plea bargaining and trial stages.

For the reasons set forth below, the petition is DENIED.

I. FACTUAL BACKGROUND

A. The Hartford Case

In Docket Number HHD-CR99-0170354 in the Judicial District of Hartford, Jamaal Coltherst was convicted of capital felony in violation of General Statutes § § 53a-54b(5) and 53a-8(a), murder in violation of General Statutes § § 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-18 and 53a-135(a)(1), larceny in the first degree in violation of General Statutes § § 53a-119, 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 § 53a-119 and General Statutes § 53a-125(a). After filing a motion to correct pursuant to Practice Book § 43-22 for reasons unrelated to the instant proceeding, the petitioner was sentenced to a total effective sentence of eighty years’ imprisonment. He appealed his convictions to our Supreme Court, which affirmed the judgments below. The facts as set out by our Supreme Court in that opinion are as follows:

On the morning of October 15, 1999, the defendant was released from the Manson Youth Institute, a correctional institution located in Cheshire, where he had been incarcerated for violating probation after having been convicted on charges of assault in the third degree. His mother and his grandfather picked him up at the institute and drove him to their house on Plain Drive in East Hartford. At some point during the day, a friend of the defendant, Jamarie Cole, came by to visit. The defendant and Cole were sitting outside together when, at about 3 p.m., another of the defendant’s friends, Carl Johnson, came up to them. Johnson indicated that he was going to "do something" that night. The defendant understood Johnson to mean that he was going to rob someone. Johnson told the defendant that he would meet him later and left.

At approximately 6:30 p.m., Johnson returned to the defendant’s house. Johnson was riding a mountain bike and carrying a bike for the defendant to ride. The defendant, seeing that Johnson was dressed entirely in black, went to his room and changed into black clothes. Johnson and the defendant then rode the bicycles to a parking lot near the defendant’s house, where the defendant asked Johnson to show him the gun that Johnson previously had indicated he would be carrying. Johnson showed him a black .22 caliber pistol and let him hold it. They then proceeded 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 defendant and Johnson previously had discussed how they would commit the carjacking. Their plan was to approach the first person who came out of the club, at which point Johnson would point the gun at the person’s head and demand the car keys. The defendant would take the keys, and the defendant and Johnson would force the person into the car. They would then drive to a place far away from any telephones or cars and leave the person there. Johnson told the defendant that he had rope and tape in his backpack if they needed to restrain the person.

The defendant and Johnson identified approximately three desirable cars in the Kahoots parking lot, but they decided to leave because it was early and they knew that people would not be leaving the club until later. At that point they rode down Main Street to the Triple A Diner, where they continued to look for cars to carjack. They determined that the diner was too busy for them to commit a robbery without being seen. They then rode their bicycles across the street to Dunkin Donuts, where they had seen a Lexus automobile in the parking lot. They hid in the bushes near the car but left after waiting for about one-half hour for the owner of the car to come out.

The defendant and Johnson then returned to Kahoots, arriving 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 4Runner 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 identified as Kyle Hoiden (victim), exited the car and went into Kahoots. Sometime later, when the victim came out of Kahoots and headed toward his car, the defendant and Johnson ran up to him. Johnson pointed his gun at the victim’s head and demanded the keys to the car. The defendant took them. Johnson then gave the gun to the defendant and took the keys himself. Johnson and the defendant forced the victim into the backseat of the car, where the defendant joined him. They then drove to an automatic teller machine (ATM) located next to the Triple A Diner. The defendant took the victim’s wallet, removed his ATM card and demanded the victim’s personal identification number. The defendant [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 defendant and Johnson got out of the car, and the defendant 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 defendant removed the victim’s belongings from the car and then got back into the car’s passenger side seat. At that point, the defendant 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 defendant asked him why he had shot the victim, and Johnson said that he did not want any witnesses. Johnson had been wearing a pair of black gloves, which he placed in the car’s glove compartment.

Over the next eight days, the defendant and Johnson continued to use the car. Bank transaction records showed that, on October 16, 1999, the victim’s ATM card was used at an ATM machine located on Park Avenue in Bloomfield to make three separate withdrawals from the victim’s checking account, for a total of $280. A surveillance camera at that ATM machine photographed Johnson and the defendant in the victim’s car as they made the withdrawals.

Meanwhile, on October 16, 1999, East Hartford police officer Gerard Scagliola was on patrol in East Hartford when he noticed the victim’s car being operated in what he considered to be a suspicious manner. He entered the car’s license plate number into his cruiser’s computerized search system, which revealed no irregularities. On October 19, 1999, the Avon police department received a report that the victim, who had been a resident of Avon, was missing. During their investigation, the Avon police learned of Scagliola’s computer inquiry and focused their search for the victim and his car on the area of East Hartford where Scagliola had seen the car. On October 24, 1999, Sergeant Robert Whitty of the Avon police department was patroling in East Hartford in connection with the investigation when he saw a black Honda matching the description of the victim’s car. Whitty, who was in an unmarked car, followed the Honda and used a cell phone to call the East Hartford police department to request additional police officers. The Honda pulled into a parking lot on Plain Drive. Whitty pulled up behind it, exited his car and identified himself as a police officer. Four individuals, ultimately identified as Johnson, the defendant, Rashad Smith and Damion Kelly, emerged from the Honda. Whitty drew his service revolver and ordered the four individuals to lie in a prone position behind the Honda. The East Hartford police arrived within approximately one minute and arrested the four individuals.

In the hours following his arrest, the defendant gave the police several inconsistent statements concerning his involvement in the crimes. At trial he testified and denied any involvement. He claimed that the police had fabricated the statements and that he had signed them without reading them.

(Footnote omitted.) State v. Coltherst, 263 Conn. 478, 483-87, 820 A.2d 1024 (2003). On appeal, he claimed "that the trial court improperly (1) instructed the jury that it could convict him of murder under the doctrine set forth in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) (Pinkerton doctrine); (2) instructed the jury that it could convict him of capital felony under the Pinkerton doctrine; (3) instructed the jury concerning certain evidence pertaining to consciousness of guilt; (4) allowed the state to cross-examine him with respect to subsequent misconduct; (5) refused to admit a coconspirator’s statement into evidence; and (6) admitted the defendant’s written escape plan as evidence of consciousness of guilt." State v. Coltherst, supra, 263 Conn. 482-83. Our Supreme Court affirmed his convictions.

B. The New Britain Case

In Docket Number HHB-CR99-0185738, in the Judicial District of New Britain, the petitioner was convicted of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, burglary in the first degree in violation of General Statutes § 53a-101(a)(1), burglary in the first degree in violation of § 53a-101(a)(2), attempt to commit murder in violation of General Statutes § § 53a-49 and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59(a)(1), assault in the first degree in violation of § 53a-59(a)(2), robbery in the first degree in violation of General Statutes § 53a-134(a)(1), robbery in the first degree in violation of § 53a-134(a)(2), conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 and 53a-134(a)(2), conspiracy to commit robbery in the first degree in violation of § § 53a-48 and 53a-134(a)(1), 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 § § 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 § 53a-122(a)(3) and conspiracy to commit larceny in the first degree in violation of § § 53a-48 and 53a-122(a)(3). He was sentenced to a total effective sentence of eighty-five years’ incarceration, consecutive to the sentence in the Hartford case.

He appealed to our Appellate Court. Our Appellate Court laid out the salient facts of this case as follows:

On October 19, 1999, the defendant, Carl Johnson and Rashad Smith were sitting in a stolen black Honda Accord near 85 Wolcott Hill Road in Wethersfield. 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 the victim had been in the building for some time, his dog began to bark, and so the victim went outside. After the victim left the building, he was accosted by the defendant and Johnson. The defendant wore a red sweatshirt or parka. The victim was instructed to turn over the keys to his vehicle. One of the men pointed a gun at the victim, 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 the victim, the other held the victim. The defendant and Johnson took the victim’s laptop computer and credit card. They threatened the victim 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 defendant took the credit card. The defendant and Johnson stated that they were going to take the victim to the car, and after he protested and resisted, he was struck twice in the face with the gun. The victim was pushed outside, continued to struggle with the two men and broke away from them before being forced into the car. The victim started to flee and called out for help, but was soon tackled by Johnson. The victim then struggled with the defendant, who took out a .22 caliber Beretta and shot the victim in the head. The defendant and Johnson fled the scene in the victim’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 the victim lying on the ground in the parking lot, which was otherwise empty. At that time, the victim was responsive, but had suffered visible injuries. Medical personal subsequently transferred the victim to Hartford Hospital for treatment. The victim was hospitalized for nine to ten days and then was transferred to a rehabilitation facility for an additional seven weeks of therapy.

Leslie Higgins, an employee of United Services Automobile Association, the company that issued the victim’s credit card, testified that on the night of the shooting, there were several attempts at various automatic teller machines to obtain cash with the card taken by the defendant. The first three attempts were declined due to an incorrect access code, and the fourth failed as a result of an automatic lock out due to the previous incorrect access codes. Higgins further testified that the defendant’s card was used on October 21, 1999, to make several purchases, totaling several hundred dollars, at various stores in Manchester. Eventually, a hold was placed on the account due to suspected fraudulent activity.

On October 24, 1999, Sergeant Robert Whitty of the Avon police department stopped a black Honda Accord carrying the defendant, Johnson, Smith and Damion Kelly. A search of that vehicle revealed the victim’s credit card, credit card receipts that matched the victim’s credit card, items purchased with the victim’s credit card and a .22 caliber bullet that subsequently was determined to have been of the same caliber used in the shooting. Additionally, after searching the defendant’s residence, the police recovered a pair of the defendant’s boots that were stained with the victim’s blood, a computer case containing the victim’s business card and a red jacket. The defendant subsequently was arrested, tried before a jury and convicted on all of the fifteen counts with which he had been charged.

(Footnotes omitted.) State v. Coltherst, 87 Conn.App. 93, 96-99, 864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d 371 (2005). On appeal, he claimed that "the court (1) improperly denied his motion for a mistrial, (2) improperly admitted into evidence testimony from his prior trial, (3) improperly instructed the jury as to an element of larceny and (4) violated the prohibition against double jeopardy by sentencing him on his conviction of six counts of conspiracy offenses." Id., 95-96. The court agreed with the petitioner’s fourth claim on appeal and remanded for resentencing. The trial court’s resentencing did not alter the petitioner’s total effective sentence.

C. The Instant Petition for Writ of Habeas Corpus

The petitioner initiated the instant proceeding on June 10, 2015 and counsel filed an amended petition on August 27, 2018. That petition alleged nine separate grounds for reversal of the petitioner’s convictions. Prior to the trial in this matter, the petitioner withdrew all but three counts: 1) that trial counsel in the Hartford matter was ineffective; 2) that trial counsel in the New Britain matter was ineffective, and; 3) that the petitioner’s conviction for kidnapping in the New Britain matter violates due process. As regards the deficient performance of counsel in the Hartford case, the petitioner claimed that trial counsel failed to: A)¹ conduct an adequate investigation into the facts of the case; B) adequately research the legal issues involved in the case; C) adequately cross examine, impeach or otherwise challenge the testimony of Rashad Smith; D) adequately cross examine, impeach or otherwise challenge the testimony of Damion Kelly; E) adequately challenge the admissibility of statements made by the petitioner while the petitioner was in custody following his arrest; F) adequately consult with and/or present testimony of an expert in the areas of false confessions, police interrogation tactics, psychology, and/or psychiatry; G) object to or otherwise respond to improper lay opinion testimony by Jessica Villafane, Damion Kelly and Rashad Smith; H) adequately challenge the admissibility of electronically altered images taken from a surveillance video; I) adequately object or otherwise respond to the prosecuting authority’s cross examination of the petitioner regarding uncharged misconduct; and J) investigate and/or present the testimony of various witnesses regarding information provided to the Avon Police Department that was inconsistent with the prosecuting authority’s theory of the case.

1 In listing the claims here, the court has followed the numbering convention used in the amended petition dated August 27, 2018 in Claim Three, paragraph 63 on pages 12-13.

In regards to the New Britain case, the petitioner alleged that trial counsel failed to: A)² conduct an adequate investigation into the facts of the case; B) adequately research the legal issues involved in the case; C) adequately cross-examine, impeach or otherwise challenge the testimony of Rashad Smith; D) adequately consult with and/or present testimony of an expert in the areas of false confessions, police interrogation tactics, psychology, and/or psychiatry; G)³ adequately consult with and/or present testimony of an expert in the area of forensic tool mark analysis; H) adequately challenge the testimony of police witnesses regarding the discovery of a firearm that was allegedly used during the incident underlying the petitioner’s charges; and I) adequately pursue a plea bargain for the petitioner.

2 In listing the claims here, the court has followed the numbering convention used in the amended petition dated August 27, 2018 in Claim Seven, paragraph 97 on pages 17-18.

3 There are no subparagraphs E) and F) to paragraph 97 in the amended petition.

During closing argument, the petitioner acknowledged that he had not presented any evidence on subparagraphs C, D, E, F, G, H and J of paragraph 63 and thus, those claims were no longer being pursued. The petitioner further acknowledged that he had not presented any evidence in support of the claims in subparagraphs A, B, C, D, G, H of paragraph 97 and those claims were withdrawn. The court then inquired whether the petition alleged any claims pertaining to the evidence the court had heard, specifically that trial counsel in the Hartford case was ineffective for failing to properly prepare the petitioner to testify and that counsel in the New Britain case was ineffective for failing to advise the petitioner to accept a plea bargain. At that point, counsel for the petitioner requested permission to amend the pleadings to conform to the evidence. This court denied that request. Petitioner’s counsel then filed a motion for reconsideration on September 5, 2019, which this court granted over the respondent’s objection.

II. FINDINGS OF FACT

Based on the evidence presented at the habeas corpus trial, the court finds the following facts specific to the claims raised in the amended petition and not withdrawn:

A. INEFFECTIVE ASSISTANCE IN THE HARTFORD CASE

In the Hartford case, the petitioner was represented at all relevant times by Attorney Donald O’Brien. He met with the petitioner approximately eighteen times during which he discussed the evidence. The defense theory at trial was that the petitioner was not involved and instead it was the co-defendant Carl Johnson who was responsible for the crimes. The gun was connected to Carl Johnson and the defense sought to put the blame on Johnson’s shoulders. 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 they should not believe the contents of that statements. 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 communications with the petitioner. He testified credibly, however, 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 Hartford case and, according to Attorney O’Brien, did well on direct examination. He denied making many of the statements contained 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." (Internal quotation marks omitted.) State v. Coltherst, 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 a carjacking that occurred in Wethersfield four days after the Hartford incident or, in the alternative, 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 inquiry⁴ into this area and the court subsequently gave a limiting instruction to the jury.

4 The following exchange took place:

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 have not have testified the way he did. At the very least, according to the petitioner, he would have been better prepared to testify.

B. INEFFECTIVE ASSISTANCE IN THE NEW BRITAIN CASE The petitioner was represented in the New Britain case by Attorney Thomas Conroy. At the time of the New Britain trial, the petitioner was already sentenced in connection with the Hartford case. There may have been a plea offer pursuant to which the petitioner would have been sentenced to a term of imprisonment of seventy years’ incarceration, 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 co-defendant Carl 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 petitioner’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.

C. THE KIDNAPPING CONVICTION

Michael Clarke was part owner of Camilleri and Clarke Associates, an insurance brokerage located at 85 Wolcott Hill Road in Wethersfield, Connecticut. On October 19, 1999, he was working at his office during the evening hours. His car, a 1997 Lincoln Mark VIII, was parked in the parking lot of the office building, at the far end of a row closest to the building. He left the office in the evening with his colleague for dinner, leaving his car in the parking lot. His colleague drove them and eventually dropped Clarke back at the office. Upon being dropped off, Clarke entered the building using the side employee entrance to retrieve work he needed to take home and a guide dog puppy he was shepherding at that time. He was in the building for approximately twenty minutes until he had to let the dog out. As he exited the building, two men, later identified to be the petitioner and Johnson, ran around to the side of his car and accosted him with a firearm. They asked him for keys to the car, and he obliged. Ten seconds later, they ordered him into the building, all the while training the gun on him. They forced him into the building and he led them into his office at their command. The petitioner and Johnson took his laptop and his VISA card and made him disclose his PIN. They allowed Clarke to secure the dog in the cellar and then ordered him to get into his vehicle. He refused to do so, at which point one of then struck him with the gun and they both assaulted him. This occurred while they were still inside the building. Clarke continued 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 the car and opened the car door. They ordered Clarke to get into the back seat 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 seconds. 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 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 admitted that their plan was to steal the Lincoln and force the owner to come with them in the stolen vehicle so the owner 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. Johnson shot Clarke prior to them fleeing the scene in the Lincoln.

The trial court’s instruction to the jury on the count of kidnapping in the first degree did not include the now-required language.

III. LEGAL ANALYSIS

A. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Horn v. Commissioner of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016). Thus, because "[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair" (internal quotation marks omitted); Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 686.

I. Two-Part Test

To determine whether a defendant is entitled to a new trial due to a breakdown in the adversarial process caused by counsel’s inadequate representation at trial, courts apply the familiar two-part test adopted by the United States Supreme Court in Strickland. Skakel v. Commissioner of Correction, 329 Conn. 1, 30, 188 A.3d 1 (2018). A petitioner’s claim that trial counsel’s assistance was so defective as to require reversal of a conviction has two components. "First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Citations omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 30. Without a showing as to both components, it cannot be said that the conviction resulted from a breakdown in the adversary process, rendering the result unreliable. Strickland v. Washington, supra, 466 U.S. 687. However, "a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland v. Washington, supra, 697; see also State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).

2. Performance Prong

The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 30-31, quoting Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). With respect to the first part of the Strickland test, "the proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington, supra, 466 U.S. 687. "Consequently, to establish deficient performance, the petitioner must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms." Skakel v. Commissioner of Correction, supra, 31. "Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Id.

3. Prejudice Prong

When defense counsel’s performance is found to not be reasonable, a new trial is required only if there exists "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra, 466 U.S. 694. "The question, therefore, is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38, quoting Strickland v. Washington, supra, 694-95.

However, "a [petitioner] need not show that counsel’s deficient conduct more likely than not altered the outcome of the case ... because the result of a criminal proceeding can be rendered unreliable, and thus the proceeding itself unfair, even if errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (Citation omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38, quoting Strickland v. Washington, supra, 466 U.S. 693-94. The petitioner must establish, instead, that the deficient performance gives rise to a loss of confidence in the verdict. Id. The habeas court’s inquiry must focus on the fundamental fairness of the proceeding and the court must be "concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Strickland v. Washington, supra, 696.

4. Ineffective Assistance in the Plea Bargaining Context

Pretrial negotiations implicating the decision of whether to plead guilty are a critical stage in criminal proceedings and "plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts." Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995), overruled on other grounds, Carraway v. Commissioner of Correction, 317 Conn. 594, 119 A.3d 1153 (2015). The decision to plead guilty is "ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997). Although the decision to plead guilty is the defendant’s to make, counsel "must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel’s independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial." Copas v. Commissioner of Correction, supra, 154; Siemon v. Stoughton, 184 Conn. 547, 556 n.3, 440 A.2d 210 (1981).

In Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the United States Supreme Court held that, to satisfy the prejudice prong of the Strickland test when the ineffective advice of counsel has led a defendant to reject a plea offer, a habeas petitioner "must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed." Id., 164; Ebron v. Commissioner of Correction, 307 Conn. 342, 352, 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). "To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time." Missouri v. Frye, 566 U.S. 134, 147, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Mahon v. Commissioner of Correction, 157 Conn.App. 246, 254, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015).

In Connecticut, in order to prove prejudice, a petitioner "need establish only 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, supra, 307 Conn. 357.

B. COLLATERAL ATTACK ON KIDNAPPING CONVICTION

"[A] defendant who has been convicted of kidnapping may collaterally attack his kidnapping conviction on the ground that the trial court’s jury instructions failed to require that the jury find that the defendant’s confinement or movement of the victim was not merely incidental to the defendant’s commission of some other crime or crimes." Wilcox v. Commissioner of Correction, 162 Conn.App. 730, 736, 129 A.3d 796 (2016); see State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). A reviewing court must conclude, beyond a reasonable doubt, that the absence of such an instruction "did not contribute to the kidnapping conviction." (Citation omitted.) Banks v. Commissioner of Correction, 184 Conn.App. 101, 103, 194 A.3d 780, cert. granted, 330 Conn. 950, 197 A.3d 391 (2018).

The respondent "bears the arduous burden of demonstrating that the omission of an instruction on incidental restraint did not contribute to the verdict." Id. ; White v. Commissioner of Correction, 170 Conn.App. 415, 428-29, 154 A.3d 1054 (2017). Thus, this court is not required "to determine whether sufficient evidence existed in the record to support a conviction of kidnapping"; id. ; or "whether a jury likely would return a guilty verdict if properly instructed; rather, the test is whether there is a reasonable possibility that a properly instructed jury would reach a different result." State v. Flores, 301 Conn. 77, 87, 17 A.3d 1025 (2011).

In State v. Salamon, supra, our Supreme Court "reconsidered our long-standing interpretation of our kidnapping statutes, General Statutes § § 53a-91 through 53a-94a ..." (Citation omitted.) State v. Hampton, 293 Conn. 435, 459-60, 988 A.2d 167 (2009). The court explained that "a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that had independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, 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 must be made by the jury." (Citation omitted.) Id., 460-61. In order "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, 287 Conn. 542.

The Salamon court set forth a list of factors for making this determination: "[1] the nature and duration of the victim’s movement or confinement by the defendant, [2] whether that movement or confinement occurred during the commission of the separate offense, [3] whether the restraint was inherent in the nature of the separate offense, [4] whether the restraint prevented the victim from summoning assistance, [5] whether the restraint reduced the defendant’s risk of detection and [6] 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, 12 A.3d 817 (2011), our Supreme Court held that Salamon applied retroactively to collateral attacks on final judgments. In Hinds v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016), our Supreme Court held that procedural default does not apply to Salamon claims in cases rendered final before that decision was issued. "The court [in Hinds] also addressed the proper standard for determining when the failure to provide the jury with a Salamon instruction requires a new trial. It reasoned that the failure to instruct the jury in accordance with Salamon is considered to be an omission of an essential element of kidnapping, and thus, rises to the level of constitutional error." (Citations omitted.) Banks v. Commissioner of Correction, supra, 184 Conn.App. 111.

"[T]he test for determining whether a constitutional error is harmless ... is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained ... A jury instruction that improperly omits an essential element from the charge constitutes harmless error [only] if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error ..." (Citations omitted; internal quotation marks omitted.) Id., 112. Our Supreme Court attempted to categorize the various types of cases impacted by Salamon in Hinds v. Commissioner of Correction, supra, 321 Conn. 92-93. "Although no minimum period of restraint or degree of movement is necessary for the crime of kidnapping, an important facet of cases where the trial court has failed to give a Salamon instruction and that impropriety on appellate review has been deemed harmless error is that longer periods of restraint or greater degrees of movement demarcate separate offenses. See [State v. Hampton, supra, 293 Conn. 463-64] (defendant confined victim in a car and drove her around for approximately three hours before committing sexual assault and attempted murder); State v. Jordan, [129 Conn.App. 215, 222-23, 19 A.3d 241 (2011)] (evidence showed the defendant restrained the victims to a greater degree than necessary to commit the assaults even though assaultive behavior spanned entire forty-five-minute duration of victims’ confinement) [cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011)]; State v. Strong, [ 122 Conn.App. 131, 143, 999 A.2d 765] (defendant’s prolonged restraint of victim while driving for more than one hour from one town to another not merely incidental to threats made prior to the restraint) [cert. denied, 298 Conn. 907, 3 A.3d 73 (2010)]; and State v. Nelson, [118 Conn.App. 831, 860-62, 986 A.2d 311] (harmless error when defendant completed assault and then for several hours drove victim to several locations) [cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010)]. Thus, as these cases demonstrate, multiple offenses are more readily distinguishable- and, consequently, more likely to render the absence of a Salamon instruction harmless- when the offenses are separated by greater time spans, or by more movement or restriction of movement." (Citation omitted.) Hinds v. Commissioner of Correction, supra, 92.

On the other hand, "multiple offenses occurring in a much shorter or more compressed time span make the same determination more difficult and, therefore, more likely to necessitate submission to a jury for it to make its factual determinations regarding whether the restraint is merely incidental to another, separate crime." Id., 92-93. In cases in which "kidnapping and multiple offenses occur closer in time to one another, it becomes more difficult to distinguish the confinement or restraint associated with the kidnapping from another substantive crime. The failure to give a proper Salamon instruction in those scenarios is more likely to result in harmful error precisely because of the difficulty in determining whether each crime has independent criminal significance. See State v. Thompson, [ 118 Conn.App. 140, 162, 983 A.2d 20 (2009)] (within fifteen minutes defendant entered victim’s car, pushed her behind a building and sexually assaulted her) [cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010)]; [State v. Flores, supra, 301 Conn. 89] (defendant’s robbery of victim in her bedroom lasted between five and twenty minutes); State v. Gary, [ 120 Conn.App. 592, 611, 992 A.2d 1178] (defendant convicted of multiple sexual assaults and an attempted sexual assault that were in close temporal proximity to the defendant’s restraint of the victim; thus court determined evidence reasonably supports a finding that the restraint merely was incidental to the commission of other crimes, namely, sexual assaults and attempted sexual assault; lack of Salamon instruction harmful error) [cert. denied, 297 Conn. 910, 995 A.2d 637 (2010)]." (Internal quotation marks omitted.) Id., 93; "see also Wilcox v. Commissioner of Correction, supra, 162 Conn.App. 743 (review of appellate decisions reveals that absence of Salamon instruction is generally more prejudicial where kidnapping related actions were closely aligned in time, place and manner to other criminal acts and these factors are particularly crucial)." Banks v. Commissioner of Correction, supra, 184 Conn.App. 118.

In Banks v. Commissioner of Correction, supra, our Appellate Court reversed the petitioner’s kidnapping conviction in a case involving the locking of two store employees in the store bathroom while the petitioner made his getaway after robbing the cash register. The court found error because the conduct occurred at a single location and the robberies and purported kidnappings "were not separated by a significant time period or distance." Id., 119. The court further found that the robbery had not been completed at the time of the kidnapping and because restraint was not an element of the offense of robbery, the restraint in that case was incidental to the commission of the felony. Id., 124-29. See also Bell v. Commissioner of Correction, 184 Conn.App. 150, 194 A.3d 809, cert. granted, 330 Conn. 949, 197 A.3d 390 (2018) (reversing convictions under similar facts).

C. DISCUSSION

The court will now consider each of the claims raised against the backdrop of the applicable law.

1. Attorney O’Brien’s Advice Regarding Testifying

The only surviving claim against Attorney O’Brien is that he did not adequately advise the petitioner about testifying nor did he adequately prepare him to testify. The petitioner has not met his burden of proof with regards to this claim. The petitioner’s claim appears to be that had Attorney O’Brien told the petitioner that he could be questioned about the Wethersfield 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 petitioner has not proven prejudice. Thus, this claim must be denied.

2. Attorney Conroy’s Advice Regarding the Plea Bargain

Even though the court has granted the petitioner’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 evidence 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’ 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, this claim is denied.

3. Whether the Kidnapping Conviction Should be Reversed

Applying the Salamon factors, this court must determine whether the failure to instruct the jury in accordance with Salamon was harmless beyond a reasonable doubt. Considering the facts and circumstances of this case, the court determines that there is no "reasonable possibility that a properly instructed jury would reach a different result." State v. Flores, supra, 301 Conn. 87. The court is satisfied that "the omission of an instruction on incidental restraint did not contribute to the verdict." Banks v. Commissioner of Correction, supra, 184 Conn.App. 103.

In this case, it is clear to the court that the restraint on the victim was not incidental to the commission of any of the other offenses charged. The petitioner and his co-defendant restrained the victim’s liberty at several points: first, when he was dragged by his arms out of his office building into the parking lot; second, when he was forced into his own vehicle. Both of these instances of restraint on the liberty of the victim were independent of, and exceeded, any restraint necessary to commit either a robbery, burglary, assault or larceny.

a. The Nature and Duration of the Victim’s Movement or Confinement by the Petitioner

While the duration of the restraint on the victim’s movement was not as lengthy as those in other cases reviewed by our courts, the nature of that restraint was significant. The petitioner admitted to police that he and his co-defendant Johnson had already decided, prior to the commission of the offenses, that they would have to take the victim with them to prevent identification. Second, the testimony established that despite complying with the demands of the petitioner and Johnson, by letting them into the office, giving them his laptop, car keys and credit card along with his PIN, the victim was nevertheless repeatedly ordered into the vehicle and, when he did not comply, forcibly dragged to the vehicle and shoved partway into it. The evidence is clear that the victim repeatedly implored the petitioner and Johnson to leave because they had already gotten whatever they asked for. His pleas were rejected. He attempted to break free and escape, but was chased and tackled, thereby further restraining him.

The restraint here occurred in three separate locations: the foyer of the building, from which the victim was pulled by his arms into the parking lot; at the vehicle, where he was repeatedly ordered to enter the vehicle and then pushed inside by one of the perpetrators and finally when he attempted to flee and was tackled and ultimately pushed up against a wall and assaulted. This confinement was not limited in nature. The victim was repeatedly moved from one location to another, in an attempt to get him into his own car that the petitioner and Johnson wanted to steal, so that they could drive away with the victim.

b. Whether That Movement or Confinement Occurred During the Commission of the Separate Offense

As discussed above, the confinement did not occur during the commission of a separate offense. The jury was instructed that, in order to convict the petitioner of kidnapping and conspiracy to commit kidnapping, the perpetrators restrained the victim with the intent to accomplish or advance the commission of the felony of robbery. While it is true that our courts have held under certain factual scenarios that a robbery is not completed during the flight from the scene of the incident; Banks v. Commissioner of Correction, supra ; the facts here are distinguishable. In Banks, the perpetrator locked the victims in a bathroom on the facility and ordered them not to leave. In order to find the petitioner guilty of robbery, the jury would have to find, inter alia, that "in the course of committing a larceny, he [used or threatened] the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." General Statutes § 53a-133. The facts do not support the conclusion that the robbery was still underway at the time of the restraint on the victim’s movement. There was no resistance to the taking of any of the property. In fact, the victim willingly provided his keys, laptop and credit card to the petitioner and Johnson. His resistance was to them ordering him into the car. The victim made no attempt to stop the commission of the felonies. This court cannot conclude, based on the facts of this case, that all the restraints on the victim’s movement occurred during the commission of another felony.

c. Whether the Restraint was Inherent in the Nature of the Separate Offense

Since restraint is not an element of General Statutes § § 53a-134(a)(1) and (2), "the proper question is whether the petitioner’s restraint of the [victim] was inherent to the robbery ..." Banks v. Commissioner of Correction, supra, 184 Conn.App. 128-29. This court concludes that it was not. Based on the evidence presented to it, no jury could reasonably determine that the petitioner’s acts of pulling the victim by his arms out of the building and into the parking lot and further the act of pushing the victim into the vehicle, coupled with the petitioner’s statements that they could not leave the victim behind for fear of being identified, were inherent to the robbery of the victim, or even the burglary or larceny of his motor vehicle.

d. Whether the Restraint Prevented the Victim from Summoning Assistance

The victim was able to summon assistance by shouting for help from passersby, who ultimately alerted police.

e. Whether the Restraint Reduced the Defendant’s Risk of Detection

The purpose of the restraint was to avoid detection and identification by the victim. The petitioner admitted that he had agreed with Johnson that they would need to leave with the victim so as to avoid being identified. This incident occurred in the dark, at night-time, and the primary way the petitioner and Johnson would be apprehended would be if the victim were to telephone the police and provide a description. The restraint on the victim’s movement and his abduction was designed to prevent that.

f. Whether the Restraint Created a Significant Danger or Increased the Victim’s Risk of Harm Independent of that Posed by the Separate Offense

This factor also does not favor the petitioner. As discussed above, in this court’s opinion, the felonies had been completed by the time the victim was pulled into the parking lot against his will and was pushed into the vehicle. This restraint led to the struggle between the victim and the petitioner and Johnson, which ultimately led to the victim being assaulted and shot. Having completed the robbery and burglary, there was no need to further restrain the victim, who had been entirely cooperative. By forcing him into the parking lot and the vehicle, the risk of harm to the victim was significantly increased.

It is clear that this case does not present the typical factual scenario involving incidental restraint. Here, the restraint and abduction of the victim was in excess of any restraint needed to complete the commission of another crime. It was unrelated to any other offense committed by the petitioner and Johnson, with the sole intention of removing the victim from the scene of the offense so that he would be unable to call the police and identify them.

This court has no doubt that the jury, even if properly instructed on incidental restraint, would have returned the same verdict. Thus, the court rejects this claim.

CONCLUSION

Thus, the court concludes that the petitioner has failed in his burden of proving the claims raised. Judgment shall enter denying the petition for a writ of habeas corpus.

[Assistant State’s Attorney]: ... October 19, 199[9], were you involved in a forcible larceny of a car taken from the owner? [The Petitioner]: Yes. Q. October 25, 1999, did you give a statement to Detective Miele, the gentleman that you described as the tall, bald-headed dude? A. Yes. Q. And as a result of that statement, were you arrested for that? A. Yes. Q. The charges are robbery and larceny, sir? A. Correct.