Hampton v. Commissioner of Correction , 174 Conn. App. 867 ( 2017 )

 TRAVIS HAMPTON v. COMMISSIONER OF
CORRECTION
(AC 39280)
DiPentima, C. J., and Keller and Prescott, Js.
Syllabus
The petitioner, who had been convicted of various offenses with his accom-
plice, M, arising out of the sexual assault of the victim at gunpoint,
sought a writ of habeas corpus alleging that defense counsel at his
criminal trial had rendered ineffective assistance. The jury in the underly-
ing criminal trial had acquitted the petitioner of count seven of the
information, which charged him with sexual assault as a principal, but
found him guilty under count eight of the information, which charged
him with sexual assault as an accessory. In the instructions to the jury,
the trial court erroneously stated that the petitioner could be convicted
as a principal or accessory with respect to count eight. In the petitioner’s
direct appeal from his conviction, our Supreme Court determined that
defense counsel had waived any claim that the jury had not been charged
correctly as to count eight because he had acquiesced to the charge as
given. The petitioner alleged in his petition for a writ of habeas corpus
that he was prejudiced by defense counsel’s deficient performance
because the jury was permitted to return a nonunanimous verdict of
guilty as to count eight, as it was unclear whether the jury found him
guilty as a principal or as an accessory. The habeas court concluded that
the petitioner was not prejudiced by any allegedly deficient performance
because the petitioner had been acquitted of count seven, which charged
him with sexual assault as a principal only, such that no juror logically
could have found him guilty as a principal in count eight. The habeas
court therefore concluded that the jury must have unanimously found
him guilty under count eight as an accessory to M’s assault of the victim.
The habeas court rendered judgment denying the petition and, thereafter,
granted the petition or certification to appeal, and this appeal followed.
Held that the habeas court properly denied the petition for a writ of
habeas corpus, that court having properly determined that the precise
harm that the petitioner asserted by defense counsel’s deficient perfor-
mance was not so significant that there was a reasonable probability
that the outcome of the trial with respect to count eight would have
been different; there was no reasonable probability that some jurors
could have convicted the petitioner of sexual assault as a principal on
count eight while others could have convicted him as an accessory with
respect to that same count, or that the verdict on count eight would
have been different had the court not made the instructional mistake,
as the jury had before it the amended information, which solely alleged
in count eight that the petitioner intentionally aided M in sexually
assaulting the victim, the prosecutor had explained during his closing
argument that count eight pertained to the petitioner’s acts that helped
M assault the victim, the jurors acquitted the petitioner of count seven,
which had charged the petitioner as a principal only, and there was
only a mere possibility that the court’s improper instruction on count
eight caused juror confusion, which was insufficient to meet the high
burden of proving that there was a reasonable probability that, but for
counsel’s unprofessional errors, the result of the trial as to count eight
would have been different.
Argued April 12—officially released July 25, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Jade N. Baldwin, for the appellant (petitioner).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Tamara Grosso, assistant state’s attorney,
for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Travis Hampton,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus.1 On appeal,
the petitioner claims that the habeas court improperly
concluded that his claim of ineffective assistance of
trial counsel fails on the prejudice prong of the test set
forth in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Having thoroughly
reviewed the record, we conclude that the habeas court
properly denied the petition and, accordingly, affirm
the judgment.
The following facts, as set forth by our Supreme Court
in the petitioner’s direct criminal appeal, and proce-
dural history are relevant to this appeal. ‘‘At approxi-
mately 1:30 a.m. on August 23, 2003, the [petitioner]
was with his friend, James Mitchell, when Mitchell
received a telephone call from the victim, a young
woman he knew, asking for a ride to her home in East
Hartford. Mitchell drove his car to the location of the
victim and picked her up. The three then drove to a
nearby restaurant. After entering the restaurant and
remaining there for a while, the [petitioner] and the
victim returned to the car, where Mitchell had remained.
Mitchell told the victim that he would drive her home,
but he did not. Instead, Mitchell began angrily ques-
tioning the victim as to the whereabouts of her brother,
who, both Mitchell and the [petitioner] suspected, was
involved in a romantic relationship with Mitchell’s for-
mer girlfriend. The victim informed Mitchell and the
[petitioner] that her brother was staying at her grandfa-
ther’s house, but after driving there, Mitchell and the
[petitioner] realized that the victim had lied to them.
Mitchell then drove first to his mother’s house in Hart-
ford, and then to an apartment complex. The victim
repeatedly pleaded with Mitchell to take her home, but
he did not comply. Mitchell drove his car from the
apartment complex and brought the victim and the
[petitioner] to a closed gas station near Market Street
in Hartford and parked behind the building, where it
was dark. . . .
‘‘Mitchell then told the victim to get out of the car
because he wanted to talk to her. Mitchell, the [peti-
tioner] and the victim exited the car. The victim, antici-
pating that ‘something bad’ was about to happen,
started to walk away, but stopped when the [petitioner]
took a shotgun out of the car and pointed it at her face.
After the victim refused to tell Mitchell her brother’s
location, Mitchell became angry and ordered the victim
to take her clothes off. The victim removed her pants,
and Mitchell sexually assaulted her by engaging in vagi-
nal intercourse with her. The [petitioner] kept the shot-
gun pointed at the victim throughout the assault.
‘‘Angry and scared, the victim pleaded with Mitchell
and the [petitioner] to let her go. Mitchell then gave
the victim the choice to climb into a nearby dumpster
or attempt to run away. As the victim started running,
Mitchell fired the shotgun hitting her in the stomach.
The victim continued to run toward the front of the gas
station, and Mitchell followed her in the car while the
[petitioner] pursued her on foot, holding the shotgun.
Despite the victim pleading with the [petitioner] to stop,
he shot and wounded her in the right side. The victim,
bleeding profusely, ran across Market Street and tried
to hide behind some trees on the side of the road. The
[petitioner] followed her and shot at her several more
times, hitting her in the face and the upper thigh. The
victim then dropped to the ground and pretended to
be dead. The [petitioner] walked over to the victim,
who was lying on the ground, and shot her one final
time in her left arm. Thinking that the victim was dead,
the [petitioner] got back into the car, which Mitchell
was driving, and they drove away. They quickly
returned, however, to verify that the victim was dead.
The [petitioner] got out of the car, walked over to the
motionless victim, kicked her once, and said, ‘She’s
dead.’ The [petitioner] and Mitchell then again drove
away.
‘‘The victim subsequently was discovered by a pas-
serby and ultimately was taken to the hospital, where,
after receiving medical attention, she informed authori-
ties that Mitchell and a person that she did not know,
later identified as the [petitioner], had sexually
assaulted and shot her. Late in the evening of August
27, 2003, Mitchell and the [petitioner] were arrested.’’
(Footnotes omitted.) State v. Hampton, 293 Conn. 435,
438–41, 988 A.2d 167 (2009).
Thereafter, the petitioner was charged, via an
amended information dated January 17, 2006, with
attempt to commit murder in violation of General Stat-
utes §§ 53a-49 (a) and 53a-54a, conspiracy to commit
murder in violation of General Statutes §§ 53a-48 (a)
and 53a-54a, kidnapping in the first degree in violation
of General Statutes §§ 53a-92 (a) (2) (A) and 53a-8,
conspiracy to commit kidnapping in the first degree in
violation of General Statutes §§ 53a-48 and 53a-92 (a)
(2) (A), assault in the first degree with a firearm in
violation of General Statutes §§ 53a-59 (a) (5) and 53a-
8, conspiracy to commit assault in the first degree in
violation of §§ 53a-48 (a) and 53a-59 (a) (5), sexual
assault in the first degree as a principal in violation of
General Statutes § 53a-70 (a) (1), sexual assault in the
first degree as an accessory in violation of §§ 53a-70
(a) (1) and 53a-8, conspiracy to commit sexual assault
in the first degree in violation of §§ 53a-48 and 53a-70
(a) (1), and criminal possession of a firearm in violation
of General Statutes § 53a-217 (a) (1). Id., 438.
The petitioner’s case was tried before a jury of six.
See id., 448 n.12. During the trial, the state presented
evidence of three separate sexual acts that the victim
had been forced to engage in—vaginal intercourse with
Mitchell, fellatio with the petitioner, and vaginal inter-
course with the petitioner2—although the petitioner
only was charged with two counts of first degree sexual
assault in the amended information—one count encom-
passing the fellatio and vaginal intercourse allegedly
committed by the petitioner personally, and one count
encompassing the vaginal intercourse by Mitchell to
which the petitioner allegedly was an accessory. More
specifically, count seven alleged in relevant part that
‘‘the [petitioner] . . . did compel [the victim] . . . to
engage in sexual intercourse by the threatened use of
force against her which caused her to fear physical
injury,’’ and count eight alleged in relevant part that ‘‘the
[petitioner] . . . did intentionally aid James Mitchell in
compelling [the victim] . . . to engage in sexual inter-
course by the threatened use of force against her which
caused her to fear physical injury.’’
Notably, during trial, ‘‘the [petitioner] did not file a
request to charge. Before it charged the jury, the trial
court held a charging conference at which it reviewed,
page by page, its written charge with the parties. The
trial court gave both parties a printed copy of the jury
instructions for their review. During the charging con-
ference, with regard to counts seven and eight of the
information . . . the trial court specifically inquired of
the parties as to whether there would be a unanimity
problem because the state had failed to allege in the
information which specific acts of sexual intercourse
had occurred. In response, the state pointed out that
count eight of the information concerned the [petition-
er’s] participation in aiding Mitchell in Mitchell’s sexual
assault of the victim. Because the evidence supported
a finding that Mitchell had engaged only in vaginal inter-
course with the victim, the state noted that there would
be only one factual basis upon which the jury could
find the [petitioner] guilty, and, thus, there would be
no unanimity problem.’’ (Footnote omitted; emphasis
omitted.) Id., 445–46.
With regard to unanimity on count seven, the court,
the prosecutor, and the court officer engaged in the
following colloquy:
‘‘The Court: . . . But there’s one sexual assault
[charge] in which he’s the principal it’s alleged?
‘‘[The Prosecutor]: Yes.
‘‘The Court: Even though the testimony involved two
sexual assaults?
‘‘[The Prosecutor]: Right. . . .
‘‘The Court: . . . But it’s . . . alleged that [the peti-
tioner] had sex with her in two different fashions. . . .
‘‘[The Prosecutor]: She—it’s just charged that [the
petitioner] forced her to engage in sexual intercourse,
and it’s not distinguished as to what type.
‘‘The Court: Well, then the question is, is there any
requirement of specific unanimity on that? . . . We’ll
have to look that up. . . .
‘‘The Court: . . . [M]y issue is particularly as far as
the argument is concerned and the charge is concerned.
Certainly the jury would not have to believe both.
‘‘[The Prosecutor]: Right.
‘‘The Court: But could you have three believing one
type of sexual contact and three believing the other or
five and one or whatever permutation you come up
with? And that’s—do you have any cases for me on that
for me to decide on? Do you have any position on that,
you can’t add another count on sexual assault?
‘‘[The Prosecutor]: No. And there was no request for
a bill of particulars, so this is particularized. . . .
‘‘[The Court Officer]: . . . I think it’s going to be for
the jury to sort it out. If three of them believe oral
sex happened and three of them believe vaginal sex
happened by the [petitioner] as principal under count
seven, then they find him guilty of count seven.’’
After the colloquy on unanimity, ‘‘the trial court solic-
ited additional suggestions from the parties with
regards to the jury charge. When the state responded
that nothing else was required, the trial court explicitly
asked defense counsel whether he had any further
changes. Defense counsel responded that his ‘only
request’ related to a conspiracy charge under Pinkerton
liability.3 After the trial court addressed that concern,
it again directly asked defense counsel, ‘Anything else?’
to which defense counsel responded, ‘No.’ . . . After
the parties reviewed [a copy of] the revised instructions,
the trial court again directly solicited comments from
both parties. Defense counsel stated that he had
received and reviewed the instructions and that they
‘appear[ed] to be in order.’ ’’ (Footnotes altered.) Id.,
446–47.
Thereafter, in its final charge as to count seven, the
court instructed the jury that ‘‘the [petitioner] is charged
solely as a principal.’’ With respect to count eight,
despite the language in that count of the amended infor-
mation charging the petitioner only as an accessory,
the court instructed the jury that the offense ‘‘can be
proven by the state in any one of the following ways:
that the [petitioner] committed the crime as a principal;
that the [petitioner] was an accessory to the crime;
or, third, that the [petitioner] is guilty by way of the
Pinkerton theory of vicarious liability.’’4 The court
‘‘instructed the jury that it did not have to be unanimous
in deciding whether the [petitioner] was guilty as a
principal or an accessory.’’ Id., 447–48. In conjunction
with the court’s charge, a verdict form was submitted
to the jury.
‘‘At the end of its jury instructions, the trial court
asked the parties whether either took exception to the
charge, and neither party did. The jury ultimately acquit-
ted the [petitioner] of count seven, which alleged sexual
assault in the first degree as a principal, and convicted
him of the remaining charges, including sexual assault
in the first degree as charged in the eighth count.’’ Id.,
448. The verdict form indicated that, as to count eight,
the petitioner was found ‘‘guilty by way of principal or
accessory liability’’ as opposed to Pinkerton vicarious
liability. He subsequently was sentenced to a total effec-
tive sentence of fifty-nine years imprisonment.
The petitioner appealed from the judgment of convic-
tion. On direct appeal, he claimed ‘‘that the trial court
improperly: (1) denied his motion to suppress a written
confession that he had made after waiving his Miranda5
rights; (2) failed to instruct the jurors that they had to
agree unanimously on the factual basis [i.e., whether
he acted as an accessory or as a principal] underlying
the sexual assault charges against the [petitioner];6 and
(3) failed to instruct the jurors adequately on the spe-
cific intent necessary to convict the [petitioner] as an
accessory on the charges of attempt to commit murder,
kidnapping in the first degree, assault in the first degree
and sexual assault in the first degree.’’ (Footnotes
altered.) Id., 438. Our Supreme Court affirmed the judg-
ment of conviction. In doing so, it specifically concluded
that the petitioner had waived his second claim regard-
ing nonunanimity as to count eight and, thus, declined
to review it: ‘‘The record in the present case . . . dem-
onstrates that defense counsel had been made aware
of the issue regarding the unanimity charge not once,
but twice, and in both instances, despite requests from
the trial judge for any changes, additions or deletions,
defense counsel stated that he had none, thus assenting
to the charge that was given.’’ Id., 450.
Subsequently, on November 19, 2015, the petitioner
filed an amended petition for a writ of habeas corpus
alleging ineffective assistance of trial counsel. The peti-
tioner alleged that the performance of his trial counsel,
Donald O’Brien, was constitutionally deficient because
he failed to object to the jury instructions given by the
court as to count eight of the amended information,
thereby permitting the jury to reach a nonunanimous
verdict on that count.7 On March 29, 2016, the habeas
court, Sferrazza, J., held a trial in which it heard testi-
mony from O’Brien and Dean Popkin, a Connecticut
criminal defense attorney.
After trial, the habeas court denied the petition for
a writ of habeas corpus. In its written memorandum of
decision dated May 6, 2016, the court assumed,
arguendo, that O’Brien had performed deficiently by
failing to object to the court’s error in instructing the
jurors that they could find the petitioner guilty on count
eight as a principal in light of the fact that the state
had alleged only accessorial liability in that count of
its amended information. The court concluded, how-
ever, that the petitioner had failed to establish preju-
dice, stating: ‘‘In order to return a not guilty verdict as
a principal of the sexual assault charge alleged in count
seven, the jury was clearly and properly instructed that
the jury had to agree unanimously on that acquittal. By
unanimously determining that the state had failed to
prove the petitioner guilty as a principal, no juror logi-
cally could have then found him to be guilty of sexual
assault as a principal in count eight. Such verdicts were
mutually exclusive. The court draws the only reason-
able conclusion that the jury must have unanimously
found the petitioner guilty of sexual assault as an acces-
sory to Mitchell’s rape.’’ (Emphasis in original.) This
appeal followed.
As an initial matter, we set forth the applicable stan-
dard of review and principles of law. ‘‘The habeas court
is afforded broad discretion in making its factual find-
ings, and those findings will not be disturbed unless
they are clearly erroneous. . . . [T]he habeas judge, as
the trier of facts, is the sole arbiter of the credibility
of witnesses and the weight to be given to their testi-
mony. . . . The application of the habeas court’s fac-
tual findings to the pertinent legal standard, however,
presents a mixed question of law and fact, which is
subject to plenary review.’’ (Citations omitted; internal
quotation marks omitted.) Gaines v. Commissioner of
Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).
‘‘The petitioner’s right to the effective assistance of
counsel is assured by the sixth and fourteenth amend-
ments to the federal constitution, and by article first,
§ 8, of the constitution of Connecticut.’’ Sanders v.
Commissioner of Correction, 83 Conn. App. 543, 549,
851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569
(2004). ‘‘To succeed on a claim of ineffective assistance
of counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
[supra, 466 U.S. 687]. Strickland requires that a peti-
tioner satisfy both a performance prong and a prejudice
prong. To satisfy the performance prong, a [petitioner]
must demonstrate that counsel made errors so serious
that counsel was not functioning as the counsel guaran-
teed . . . by the [s]ixth [a]mendment [to the United
States constitution]. . . . To satisfy the prejudice
prong, a [petitioner] must demonstrate that there is a
reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . The claim will succeed only if both
prongs are satisfied.’’ (Citations omitted; internal quota-
tion marks omitted.) Small v. Commissioner of Correc-
tion, 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied
sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,
172 L. Ed. 2d 336 (2008). ‘‘[A] court need not determine
whether counsel’s performance was deficient before
examining the prejudice suffered by the [petitioner].’’
Strickland v. Washington, supra, 697.
In the present appeal, the precise nature of the peti-
tioner’s claim is somewhat unclear. In his brief, he
appears to argue that his trial counsel’s failure to object
to the court’s instruction on count eight was constitu-
tionally deficient performance because he had not been
charged as a principal in count eight of the amended
information, yet the court nevertheless instructed the
jury that it could find him guilty as a principal, as an
accessory, or under the Pinkerton theory of vicarious
liability. In light of the fact that (1) the habeas court
assumed that the petitioner had met his burden to prove
deficient performance, and (2) our Supreme Court, in
the petitioner’s direct appeal, indicated that the court
should not have instructed the jury on principal liability
because it had not been pleaded in count eight of the
information,8 the question of whether counsel’s perfor-
mance was deficient is not truly in dispute.9 Rather, the
critical inquiry for this court is to focus on the precise
harm that the petitioner asserts was created by this
deficient performance and whether that harm is so sig-
nificant that there is a reasonable probability that the
outcome of the trial, with respect to count eight, would
have been different.
In conducting this inquiry, we believe it is important,
given that the alleged prejudice must flow from the
precise claim of ineffective assistance being made, to
note several points that are clear to us. First, the peti-
tioner does not argue that he was prejudiced because
the jury was permitted to consider a theory of liability
of which he had not received notice.10 In other words,
he has not argued, in his attempt to establish prejudice,
that had he known the state’s true theory of liability
for count eight, he would have defended the count dif-
ferently, and that had he done so, there is a reasonable
probability that he would have been acquitted of that
count.
Second, in his attempt to establish that he was preju-
diced by his trial counsel’s deficient performance, the
petitioner has not argued that the guilty verdict on count
eight was factually and/or legally inconsistent with the
verdict of acquittal on count seven. Even if his counsel’s
failure to object to the charge as given ultimately led
to factually inconsistent verdicts on counts seven and
eight, such a result, as a matter of law, would not consti-
tute prejudice: ‘‘[I]t is well established that factually
inconsistent verdicts are permissible. [When] the ver-
dict could have been the result of compromise or mis-
take, we will not probe into the logic or reasoning of
the jury’s deliberations or open the door to interminable
speculation.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Nash, 316 Conn. 651, 659, 114
A.3d 128 (2015).
If the petitioner had attempted to argue that the ver-
dicts are legally inconsistent, he would have met a simi-
lar lack of success. Claims regarding legally
inconsistent verdicts generally are divided into two cat-
egories. ‘‘The first category involves cases in which it
is claimed that two convictions are inconsistent with
each other as a matter of law or are based on a legal
impossibility. . . . Such convictions . . . are review-
able . . . . The second category involves cases in
which the defendant claims that one or more guilty
verdicts must be vacated because there is an inconsis-
tency between those guilty verdicts and a verdict of
acquittal on one or more counts, or an acquittal of a
codefendant. . . . It is well established that such
inconsistent verdicts are not reviewable and the defen-
dant is not entitled to relief . . . .’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
State v. Anderson, 158 Conn. App. 315, 332–33, 118 A.3d
728, cert. granted on other grounds, 319 Conn. 908, 123
A.3d 437 (2015) (appeal withdrawn May 4, 2016). Thus,
even if the petitioner had argued that he was prejudiced
by legally inconsistent verdicts on counts seven and
eight, this result would not constitute prejudice, as a
matter of law, because it is not proper for an appellate
court to compare a verdict of acquittal on one count
with a verdict of guilt on another count for purposes
of determining legal consistency.
This brings us then to the petitioner’s actual argument
regarding prejudice.11 In terms of what we can divine
from his brief, the petitioner appears to argue that the
court’s instruction that the petitioner could be found
guilty as a principal on count eight was prejudicial
because it potentially sanctioned a nonunanimous ver-
dict by creating a scenario under which the jury could
convict him of the charge in count eight without all of
the jurors agreeing that the petitioner assisted Mitchell
by holding a gun to the victim’s head so that Mitchell
could commit the sexual assault. In other words, the
petitioner argues that some jurors may have convicted
him on the basis that the petitioner had held a gun to
the victim’s head so that Mitchell could commit a sexual
assault, while others voted to convict on the basis that
the petitioner, as a principal, had compelled the victim
to perform fellatio or that he had penetrated her
vaginally.12
As previously discussed, ‘‘[t]o satisfy the prejudice
prong, a [petitioner] must demonstrate that there is a
reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different.’’ (Internal quotation marks omitted.)
Small v. Commissioner of Correction, supra, 286 Conn.
713. ‘‘A reasonable probability is a probability sufficient
to undermine confidence in the outcome.’’ (Internal
quotation marks omitted.) Apodaca v. Commissioner
of Correction, 167 Conn. App. 530, 535, 146 A.3d 42
(2016). Given this standard for prejudice, we are not
persuaded that there is a reasonable probability that
some members of the jury could have convicted him
as a principal on count eight and that others could have
convicted him as an accessory on that same count.
More specifically, we agree with the habeas court’s
assessment that the verdict of acquittal as to count
seven leads us to conclude that there is not a reasonable
probability that the verdict on count eight would have
been different had the court not made the instruc-
tional mistake.
The habeas court ruled as follows in its memorandum
of decision: ‘‘In order to return a not guilty verdict as
a principal of the sexual assault charge alleged in count
seven, the jury was clearly and properly instructed that
[it] had to agree unanimously on that acquittal. By unan-
imously determining that the state had failed to prove
the petitioner guilty as a principal, no juror could logi-
cally have then found him to be guilty of sexual assault
as a principal in count eight. Such verdicts were mutu-
ally exclusive. The court draws the only reasonable
conclusion that the jury must have unanimously found
the petitioner guilty of sexual assault as an accessory
to Mitchell’s rape.’’ (Emphasis in original.)
First, the habeas court inartfully used the phrase
‘‘mutually exclusive’’ to describe the verdict of acquittal
on count seven and the verdict of guilt on count eight.
The term ‘‘mutually exclusive,’’ as used in our case law,
refers to two convictions that are inconsistent with
each other as a matter of law or are based on a legal
impossibility. See State v. Nash, supra, 316 Conn. 659.
As previously discussed herein, such convictions are
reviewable and cannot withstand a challenge if ‘‘the
existence of the essential elements for one offense
negates the existence of [one or more] essential ele-
ments for another offense of which the defendant also
stands convicted.’’ (Internal quotation marks omitted.)
Id. The present case, however, does not involve a claim
contesting two legally inconsistent convictions; accord-
ingly, the habeas court’s use of the term here does not
fit. Nevertheless, we find the remainder of its reason-
ing persuasive.
In count seven, the petitioner was charged with first
degree sexual assault as a principal only, and the court
properly instructed the jury accordingly, expressly stat-
ing that, for purposes of this case, the jury should con-
sider sexual intercourse to be vaginal intercourse or
fellatio. Because we presume the jury properly followed
the trial court’s instructions in the absence of evidence
to the contrary; State v. Peeler, 271 Conn. 338, 371, 857
A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct.
94, 163 L. Ed. 2d 110 (2005); we assume that the jury
did not limit its consideration of count seven to only
one of the two possible acts of sexual assault allegedly
perpetrated by the defendant as a principal. Rather, we
presume that it considered both whether the petitioner
principally compelled the victim to engage in vaginal
intercourse with him and whether the petitioner princi-
pally compelled the victim to perform fellatio on him.
Given that the jury acquitted the petitioner of count
seven, we must, therefore, presume that it unanimously
concluded that the state failed to prove beyond a rea-
sonable doubt either of the two sexual acts that the
state alleged he committed as a principal.
Thus, if the jurors unanimously acquitted the peti-
tioner of acting as the principal in committing the two
separate acts of sexual assault alleged in count seven,
this left only one act of sexual assault for them to
consider in the context of count eight: vaginal penetra-
tion of the victim by Mitchell. Given this, and in light
of the fact that the verdict form for count eight indicated
that the petitioner was found guilty ‘‘as a principal or
accessory,’’ the most reasonable explanation for the
verdict on count eight is that the jury found the peti-
tioner guilty on a theory of accessorial liability for aiding
Mitchell in sexually assaulting the victim.13 The likeli-
hood of this outcome becomes even greater considering
the fact that the jury had before it both the amended
information for count eight, which solely alleged that
the petitioner ‘‘did intentionally aid James Mitchell’’ in
sexually assaulting the victim, and the closing argument
of the state, in which the prosecutor stated, ‘‘We’re
charging him [in count eight] . . . that he aided, that
he helped Mr. Mitchell in engaging in sexual intercourse
with [the victim].’’14
Ultimately, the most that can be said of the petition-
er’s prejudice argument here is that it was merely possi-
ble that the court’s improper instructions on count eight
caused juror confusion as to whether some of the jurors
could have decided that the state met its burden of
proof with respect to one of the acts of sexual assault,
while others could have decided that the state met its
burden of proof with respect to another act of sexual
assault. For the petitioner to prevail on the prejudice
prong of his habeas claim of ineffective assistance of
counsel, however, the high burden is on him to prove
that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the trial as to
count eight would have been different. The petitioner
has failed to show that his theory of juror nonunanimity
was anything more than speculative and, thus, has not
undermined confidence in the outcome. We, therefore,
conclude that the habeas court did not improperly con-
clude that the petitioner’s claim of ineffective assistance
of trial counsel fails on the prejudice prong of the Strick-
land test. Accordingly, we affirm the judgment of the
habeas court.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court subsequently granted certification to appeal from the
judgment pursuant to General Statutes § 52-470 (b).
2
As summarized in its closing argument before the jury, the state theorized
that the sexual assaults occurred as follows: ‘‘[The victim] told you that
after James Mitchell forced her to engage in sexual intercourse, this [peti-
tioner] was sitting there holding a shotgun basically between his legs while
he relaxed on the backseat of the car and watched James Mitchell force
her . . . to engage in penile-vaginal intercourse. . . . [The victim] told you
that while she had a shotgun pointed at her head she did put her mouth
once, twice down on [the petitioner’s] penis. . . . [The petitioner] did not
ejaculate, but . . . he then gave the shotgun over to Mr. Mitchell, and
[the petitioner] then attempted to have penile-vaginal intercourse with [the
victim]. In fact, he did place his penis . . . into her vagina briefly.’’
3
See Pinkerton v. United States, 328 U.S. 640, 647–48, 66 S. Ct. 180, 90
L. Ed. 1489 (1946).
4
In the petitioner’s direct appeal, our Supreme Court commented on this
aspect of the court’s instructions as follows: ‘‘During the charging confer-
ence, the [petitioner], the state and the trial court discussed that, specifically
as to count eight, the [petitioner] was charged and could be found liable
as a principal, as an accessory, or under the Pinkerton doctrine of vicarious
liability. . . . The trial court thus charged the jury in accordance with this
discussion. This, however, was incorrect. Count eight of the information
alleged only that the [petitioner] had acted as an accessory by aiding Mitchell
in sexually assaulting the victim. Accordingly, the trial court’s jury instruc-
tion as to count eight was inconsistent with the crime charged in the informa-
tion. Although [t]he trial court cannot by its instruction change the nature
of the crime charged in the information . . . it is significant that neither
the state nor the [petitioner] took exception to this instruction at trial, and
that, on appeal, the [petitioner] has not challenged this specific aspect of
the instruction. We therefore treat this claim as abandoned.’’ (Citations
omitted; emphasis altered; internal quotation marks omitted.) State v. Hamp-
ton, supra, 293 Conn. 446 n.9.
5
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
6
With regard to this claim, the petitioner challenged the verdicts on both
of the sexual assault charges, counts seven and eight. Because he was
acquitted of the sexual assault charged in count seven of the information,
however, our Supreme Court stated that he was not aggrieved by that
verdict, and, thus, it reviewed this claim only as it applied to the petitioner’s
conviction on count eight. State v. Hampton, supra, 293 Conn. 444–45 n.7.
7
The amended petition also included a second claim of ineffective assis-
tance of trial counsel for ‘‘failure to impeach and/or cross-examine [the]
victim with prior trial testimony.’’ That claim, however, was withdrawn prior
to the start of evidence at the habeas trial.
8
See footnote 4 of this opinion.
9
It should be noted that the petitioner does not contend that his claim
of ineffective assistance of trial counsel arose from O’Brien’s failure to
request a unanimity charge with respect to the underlying factual basis for
count seven. More specifically, he does not claim that the possible lack of
unanimity on count eight was due to the fact that the jurors should have
been instructed that they could convict the petitioner of count seven only
if they unanimously agreed that he personally committed a sexual assault
against the victim by forcing her to perform fellatio or if they unanimously
agreed that he personally committed the assault by forcing her to engage
in vaginal intercourse.
Pursuant to State v. Famiglietti, 219 Conn. 605, 619–20, 595 A.2d 306
(1991), ‘‘[e]ven if the instructions at trial can be read to have sanctioned
such a nonunanimous verdict . . . we will remand for a new trial only if
(1) there is a conceptual distinction between the alternative acts with which
the defendant has been charged, and (2) the state has presented evidence
to support each alternative act with which the defendant has been charged.’’
(Internal quotation marks omitted.) State v. Jessie L. C., 148 Conn. App.
216, 232, 84 A.3d 936, cert. denied, 311 Conn. 937, 88 A.3d 551 (2014).
Significantly, ‘‘case law provides that the alternative means of performing
sexual intercourse are not conceptually distinct. See State v. Anderson, 211
Conn. 18, 35, 557 A.2d 917 (1989) (‘[t]he several ways in which sexual
intercourse may be committed under General Statutes § 53a-65 [2] are only
one conceptual offense’).’’ (Emphasis added.) State v. Griffin, 97 Conn.
App. 169, 184 n.7, 903 A.2d 253, cert. denied, 280 Conn. 925, 908 A.2d 1088
(2006). Thus, this court held in Griffin that ‘‘the court’s instruction that
sexual intercourse included vaginal intercourse or cunnilingus did not consti-
tute a nonunanimous instruction of two conceptually distinct alternatives.’’
(Emphasis in original.) Id. Likewise, in the present case, the petitioner could
not have prevailed on a claim that his counsel was deficient for failing to
request a unanimity instruction as to whether the act of sexual intercourse
underlying count seven was fellatio or vaginal intercourse, because the
two acts are not two conceptually distinct alternatives for purposes of
surmounting the first prong of Famiglietti.
10
‘‘[T]he United States Supreme Court has explained that [t]o uphold a
conviction on a charge that was neither alleged in an [information] nor
presented to a jury at trial offends the most basic notions of due process.
Few constitutional principles are more firmly established than a defendant’s
right to be heard on the specific charges of which he is accused. . . .
Reviewing courts, therefore, cannot affirm a criminal conviction based on
a theory of guilt that was never presented to the jury in the underlying trial.
. . . To rule otherwise would permit trial by ambuscade. . . . Whether a
defendant has received constitutionally sufficient notice of the charges of
which he was convicted may be determined by a review of the relevant
charging document, the theory on which the case was tried and submitted
to the jury, and the trial court’s jury instructions regarding the charges.’’
(Citations omitted; internal quotation marks omitted.) State v. King, 321
Conn. 135, 148–50, 136 A.3d 1210 (2016).
11
We note that the petitioner does not argue that his counsel’s deficient
performance or the court’s instructional error was structural in nature and
that he, therefore, is excused from demonstrating prejudice under the sixth
amendment to prevail on his claim. ‘‘Structural [error] cases defy analysis
by harmless error standard because the entire conduct of the trial, from
beginning to end, is obviously affected . . . . These cases contain a defect
affecting the framework within which the trial proceeds, rather than simply
an error in the trial process itself . . . . Such errors infect the entire trial
process . . . and necessarily render a trial fundamentally unfair . . . . Put
another way, these errors deprive defendants of basic protections without
which a criminal trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence . . . and no criminal punishment may
be regarded as fundamentally unfair.’’ (Internal quotation marks omitted.)
Taylor v. Commissioner of Correction, 324 Conn. 631, 645, 153 A.3d 1264
(2017). Because the petitioner does not make this assertion in his brief or
cite to any structural error cases, he has the burden of demonstrating that
prejudice resulted from his trial counsel’s deficient performance in failing
to object to the court’s instructions on count eight.
12
Our Supreme Court expressly has held, as a general matter, that principal
and accessorial liability are not conceptually distinct from each other, and,
thus, a jury verdict on a particular count should be regarded as unanimous
even if some jurors concluded that the defendant was an aider and abetter,
while other jurors concluded that he was the principal. State v. Smith, 212
Conn. 593, 605, 563 A.2d 671 (1989). In the present case, however, the state
did not allege the occurrence of merely one act of sexual assault for which
it would have been proper for half the jurors to believe the petitioner was
guilty under a theory of principal liability and half the jurors to believe
he was guilty under a theory of accessorial liability; rather, it alleged the
occurrence of three separate acts of sexual assault. The petitioner thus
appears to argue that, given the instructions on count eight, the jury could
have believed it proper for each juror to individually determine that any
one of the three acts of sexual assault, two alleging principal liability and
one alleging accessorial liability, was proven beyond a reasonable doubt,
resulting in a nonunanimous guilty verdict.
13
By so concluding, we do not mean to suggest or presume that the jury
must have decided counts seven and eight in any particular order. The
reality, however, is that, ultimately, the jury acquitted him of the two acts
of sexual assault of which the state accused him as a principal, and found
him guilty on count eight.
14
Specifically, the prosecutor stated: ‘‘[L]et me go to count eight because
we’re going to talk about some of these things together. . . . We’re charging
him . . . that he aided, that he helped Mr. Mitchell in engaging in sexual
intercourse with [the victim]. . . . The question for you is, looking at the
facts here, did James Mitchell force [the victim] to engage in sexual inter-
course when a shotgun was pointed at her and he told her to take off her
clothes? . . . I submit to you that the [petitioner] had the gun when James
Mitchell forced her to bend over and he placed his penis into her vagina
. . . .’’