Salters v. Commissioner of Correction , 175 Conn. App. 807 ( 2017 )

 GAYLORD SALTERS v. COMMISSIONER
OF CORRECTION
(AC 38371)
Lavine, Mullins and Bear, Js.
Syllabus
The petitioner, who had been convicted of various crimes in connection
with a gang related shooting, filed a second petition for a writ of habeas
corpus, claiming, inter alia, that the counsel who represented him in
connection with his first habeas petition provided ineffective assistance
in failing to raise claims that the petitioner’s criminal trial counsel was
ineffective for not objecting to erroneous jury instructions or requesting
an evidentiary hearing pursuant to Brady v. Maryland (373 U.S. 83),
which the petitioner claimed would have disclosed material, exculpatory
impeachment evidence. He also alleged that his first habeas counsel
was ineffective for having failed to raise claims that the petitioner’s
appellate counsel on direct appeal was ineffective for having failed to
raise the Brady violation and a claim of prosecutorial impropriety. The
habeas court rendered judgment denying the second habeas petition,
from which the petitioner, on the granting of certification, appealed to
this court. Held:
1. The record was inadequate to review the petitioner’s claim that the habeas
court erred in failing to apply the strict standard of materiality to his
Brady claims, in which he alleged that the prosecutor knowingly relied
on false testimony; although the amended habeas petition included fac-
tual allegations that the prosecution knowingly relied on false testimony,
the habeas court’s memorandum of decision was devoid of any factual
findings or legal analysis involving the allegations of false testimony,
and this court would not address a claim that was not decided by the
habeas court.
2. The petitioner could not prevail on his claim that the habeas court erred
in denying his claim that his first habeas counsel was ineffective for
having failed to raise a claim that the petitioner’s trial counsel provided
ineffective assistance by failing to object to certain jury instructions on
intent, which included the full statutory definition for specific and gen-
eral intent crimes, even though the petitioner had been charged with
specific intent crimes only; although it was improper for the trial court
to include the full statutory definition of intent in its charge to the jury,
it was not reasonably possible that the jury was misled and the petitioner
was not harmed thereby, as the trial court, in its instructions on the
intent required for the crimes charged, repeatedly referred to the proper
specific intent required for the commission of those crimes so as to
mitigate any harm to the petitioner, whereas it gave the erroneous
instruction once.
3. The habeas court’s determination that appellate counsel made a reason-
able strategic decision to forgo on direct appeal a claim of prosecutorial
impropriety was supported by the record, the evidence having shown
that counsel decided to forgo the claim because she considered it to
be meritless, and, therefore, because appellate counsel was not deficient
for having failed to bring such a claim, a claim of ineffective assistance
of first habeas counsel for failing to claim that appellate counsel was
ineffective on that ground could not stand; moreover, although certain
testimony by a state’s witness could have indicated that he was pressured
by the police to make a statement, the prosecutor’s statements to the
jury that the witness was not told to identify the petitioner as the driver
of the vehicle from which gunshots were fired and was not directed what
to say in his statement to the police were reasonable characterizations of
the evidence and were not improper.
Argued April 11—officially released August 29, 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, Cobb, J.; judgment deny-
ing the petition, from which the petitioner, on the grant-
ing of certification, appealed to this court. Affirmed.
Arthur L. Ledford, assigned counsel, for the appel-
lant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom were Patrick J. Griffin, state’s attorney, and,
on the brief, Adrienne Maciulewski, assistant state’s
attorney, for the appellee (respondent).
Opinion
BEAR, J. The petitioner, Gaylord Salters, 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 (1)
failed to apply the strict standard of materiality to his
claim of a Brady violation,2 which included factual alle-
gations that the prosecution knowingly relied on false
testimony; (2) denied his claim of ineffective assistance
by his prior habeas trial counsel (habeas counsel) for
failing to raise a claim that the petitioner’s criminal trial
counsel (trial counsel) was ineffective for failing to
raise a claim of instructional error;3 (3) failed to apply
the ‘‘findings’’ that this court made in his appeal from
the judgment in his first habeas case; and (4) found
that the decision of his appellate counsel on direct
appeal (appellate counsel) to forgo raising a prosecu-
torial impropriety claim was a reasonable strategic deci-
sion. We affirm the judgment of the habeas court.
As this court previously stated, the jury reasonably
could have found the following facts in the petitioner’s
criminal trial. ‘‘On November 24, 1996, the [petitioner]
participated in a gang related shooting in New Haven.
The [petitioner], a member of the Island Brothers street
gang, drove behind an automobile being driven by Dan-
iel Kelley. Either the [petitioner] or an accomplice riding
in his automobile fired on Kelley’s automobile. Kelley
sustained a gunshot wound to his shoulder and lost
control of his automobile, causing it to crash into two
vehicles parked nearby. Kelley’s passenger, Kendall
Turner, a member of the Ghetto Boys street gang, sus-
tained a gunshot wound to his elbow. The Island Broth-
ers and the Ghetto Boys, both of which were involved
in illegal activity, had a hostile relationship marked by
gun violence between rival gang members.’’ State v.
Salters, 89 Conn. App. 221, 222–23, 872 A.2d 933, cert.
denied, 274 Conn. 914, 879 A.2d 893 (2005).
The following factual and procedural background is
relevant to our resolution of the petitioner’s appeal.
Following a jury trial, the petitioner was convicted of
two counts of assault in the first degree in violation of
General Statutes §§ 53a-59 (a) (5) and 53a-8, and one
count of conspiracy to commit assault in the first degree
in violation of General Statutes §§ 53a-59 (a) (5) and
53a-48 (a). Id., 222. The petitioner directly appealed to
this court, claiming that the trial court violated his right
to present a defense by precluding him from presenting
testimony from an alibi witness at trial. Id. This court
affirmed his conviction. Id., 236.
In 2006, the petitioner filed his first petition for a writ
of habeas corpus, which he subsequently amended. In
his second amended petition, he claimed that he was
denied due process because the prosecutor withheld
material, exculpatory impeachment information, which
constituted a Brady violation, in that the prosecutor
failed to provide such information pertaining to Kendall
Turner, a key witness for the state. Salters v. Commis-
sioner of Correction, 141 Conn. App. 81, 83–84, 60 A.3d
1004, cert. denied, 308 Conn. 932, 64 A.3d 330 (2013).
He also alleged ineffective assistance of counsel
because his trial counsel failed (1) to sufficiently investi-
gate, discover, and present to the jury information
regarding Turner’s statement to the police and (2) to
conduct sufficient discovery.4 Id., 84. After conducting
a habeas trial, the court, Fuger, J., rendered judgment
denying the petition. Id. The habeas court determined
that defense counsel’s testimony was more credible
than the petitioner’s testimony, that defense counsel
adequately investigated Turner’s criminal history prior
to trial, and that the prosecutor disclosed all of the
information he had pertaining to Turner. Id. The peti-
tioner subsequently appealed to this court.
On appeal, this court concluded that the habeas court
did not err in rejecting the petitioner’s claim of ineffec-
tive assistance of counsel. Id., 86. Additionally, this
court held that the petitioner’s Brady claim was proce-
durally defaulted because, at the time of trial and his
direct appeal, he knew of the existence of the records
that he claimed in his habeas petition were unlawfully
withheld, and he could have raised the alleged Brady
violation at trial by requesting an evidentiary hearing
on the potential Brady evidence or on direct appeal by
raising a Brady claim. Id., 89–90. Consequently, this
court affirmed the habeas court’s judgment denying
the petition; id., 91; and our Supreme Court denied
certification to appeal. Salters v. Commissioner of Cor-
rection, 308 Conn. 932, 64 A.2d 330 (2013).
On June 2, 2010, the then self-represented petitioner
filed a second petition for a writ of habeas corpus,
which is the subject of the present appeal. The habeas
court appointed counsel for him. In his fifth amended
petition, the petitioner set forth seventeen counts, four
of which are relevant to this appeal. In count one, the
petitioner asserted that his habeas counsel provided
ineffective assistance by failing to allege that his trial
counsel provided ineffective assistance by failing to
request an evidentiary hearing, pursuant to Brady,
which would have revealed material, exculpatory
impeachment evidence. Additionally, in count fourteen,
the petitioner claimed that his habeas counsel provided
ineffective assistance by failing to allege that trial coun-
sel provided ineffective assistance when he failed to
object to erroneous jury instructions, which prejudiced
the petitioner’s case. In count six, the petitioner
asserted that his habeas counsel provided ineffective
assistance by failing to allege that appellate counsel
provided ineffective assistance by failing to ‘‘raise the
Brady violation . . . .’’ Additionally, in count seven,
the petitioner claimed that his habeas counsel provided
ineffective assistance by failing to allege that his appel-
late counsel provided ineffective assistance by failing
to raise a claim of prosecutorial impropriety because
the prosecutor misstated evidence during closing
arguments.
On July 22, 2015, the habeas court, Cobb, J., rendered
judgment denying the petition. As to count one, the
court found that the petitioner had failed to establish
prejudice by proving that there was a reasonable proba-
bility that the result in his criminal trial would have
been different. The court determined that further
impeachment of Turner would not have added signifi-
cantly to his cross-examination. On count fourteen, the
court found that the jury instruction was appropriate
and, therefore, the petitioner had failed to prove that
his trial counsel’s or his habeas counsel’s performance
was deficient or that he was prejudiced. As to count
six, the court found that there was an inadequate record
on direct appeal to raise a previously unraised Brady
claim to satisfy Golding review.5 Additionally, the court
had already found that the petitioner failed to prove
prejudice regarding the claimed Brady violation and
that appellate counsel’s decision to forgo such a claim
was a strategic decision. Accordingly, the court denied
this claim as to appellate counsel. Finally, on count
seven, the court found that there was no evidence that
appellate counsel could have satisfied the requirements
of Golding to prevail on a previously unraised claim
of prosecutorial impropriety.6 Additionally, the habeas
court found that appellate counsel’s decision to forgo
this claim, which she considered weak, was a reason-
able strategic decision and that the petitioner failed to
establish that he would have prevailed on such a claim.
Consequently, the court denied the petition for a writ
of habeas corpus. Thereafter, the habeas court granted
the petitioner certification to appeal, and this appeal
followed.
‘‘We begin with the applicable standard of review
and the law governing ineffective assistance of counsel
claims. The habeas court is afforded broad discretion
in making its factual findings, and those findings will
not be disturbed unless they are clearly erroneous. . . .
The application of the habeas court’s factual findings
to the pertinent legal standard, however, presents a
mixed question of law and fact, which is subject to
plenary review.’’ (Citations omitted; internal quotation
marks omitted.) Gaines v. Commissioner of Correc-
tion, 306 Conn. 664, 677, 51 A.3d 948 (2012).
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984). Strickland requires that a petitioner satisfy both
a performance prong and a prejudice prong. To satisfy
the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different.’’ (Citation omitted; internal quotation
marks omitted.) Breton v. Commissioner of Correction,
325 Conn. 640, 668–69, 159 A.3d 1112 (2017).
‘‘[When] applied to a claim of ineffective assistance
of prior habeas counsel, the Strickland standard
requires the petitioner to demonstrate that his prior
habeas counsel’s performance was ineffective and that
this ineffectiveness prejudiced the petitioner’s prior
habeas proceeding. . . . [T]he petitioner will have to
prove that one or both of the prior habeas counsel, in
presenting his claims, was ineffective and that effective
representation by habeas counsel establishes a reason-
able probability that the habeas court would have found
that he was entitled to reversal of the conviction and
a new trial . . . . Therefore, as explained by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992), a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective
assistance of [trial] counsel must essentially satisfy
Strickland twice: he must prove both (1) that his
appointed habeas counsel was ineffective, and (2) that
his [trial] counsel was ineffective. . . . We have char-
acterized this burden as presenting a herculean task
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Mukhtaar v. Commissioner of Correction,
158 Conn. App. 431, 438–39, 119 A.3d 607 (2015).
Our standard of review for claims of ineffective assis-
tance of appellate counsel is similar. ‘‘In regard to the
second prong [of Strickland], our Supreme Court distin-
guished the standards of review for claims of ineffective
trial counsel and ineffective appellate counsel. . . . For
claims of ineffective appellate counsel, the second
prong considers whether there is a reasonable probabil-
ity that, but for appellate counsel’s failure to raise the
issue on appeal, the petitioner would have prevailed
in his direct appeal, i.e., reversal of his conviction or
granting of a new trial. . . . This requires the reviewing
court to [analyze] the merits of the underlying claimed
error in accordance with the appropriate appellate stan-
dard for measuring harm.’’ (Citations omitted; internal
quotation marks omitted.) Moore v. Commissioner of
Correction, 119 Conn. App. 530, 535, 988 A.2d 881, cert.
denied, 296 Conn. 902, 991 A.2d 1103 (2010).
I
The petitioner claims that the habeas court erred in
failing to apply the ‘‘strict standard of materiality’’7 to his
Brady claims in which he alleged that the prosecution
knowingly relied on false testimony. We do not review
this claim because the petitioner has failed to provide
this court with an adequate record for review.
Although the petitioner’s fifth amended petition
included factual allegations that the prosecution know-
ingly relied on false testimony, the habeas court’s mem-
orandum of decision is devoid of any factual findings or
legal analysis involving the false testimony allegations
raised by the petitioner. ‘‘It is fundamental that claims
of error must be distinctly raised and decided in the
[habeas] court before they are reviewed on appeal. As
a result, Connecticut appellate courts will not address
issues not decided by the [habeas] court.’’ (Internal
quotation marks omitted.) Bozelko v. Commissioner of
Correction, 162 Conn. App. 716, 717 n.1, 133 A.3d 185,
cert. denied, 320 Conn. 926, 133 A.3d 458 (2016); see
also Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn.
437, 444 n.10, 685 A.2d 670 (1996) (claims ‘‘neither
addressed nor decided’’ by trial court not properly
before appellate tribunal). ‘‘It is the responsibility of
the appellant to provide an adequate record for review
. . . .’’ Practice Book § 60-5. Accordingly, we cannot
and do not address the petitioner’s claim that the court
applied the wrong standard of materiality to his
Brady claims.8
II
The petitioner claims that the habeas court erred
in denying his assertion that his habeas counsel was
ineffective in failing to raise a claim that trial counsel
was ineffective for failing to object to the jury instruc-
tions because they contained errors that made it easier
for the jury to find him guilty. Specifically, the petitioner
argues that the trial court’s charge to the jury included
the full statutory definition of ‘‘acting intentionally,’’
which included the definitions for both specific and
general intent. As the petitioner was charged only with
specific intent crimes—two counts of assault in the first
degree and one count of conspiracy to commit assault
in the first degree—he argues that the jury was allowed
to find him guilty of specific intent crimes while utilizing
the lower standard of general intent. Because this
improper definition was repeatedly referred to through-
out the jury charge, the petitioner argues that the jury
was misled. We agree that it was improper for the trial
court to have included the full statutory definition of
intent but conclude that the petitioner was not harmed
thereby or by habeas counsel’s failure to raise that claim
in the petitioner’s first habeas proceeding.
The following additional facts are relevant to the
resolution of this claim. The trial court instructed the
jury as follows: ‘‘Section 53a-59 (a) (5) of the Connecti-
cut General Statutes provides that a person is guilty of
assault in the first degree when: With intent to cause
physical injury to another person, he causes such injury
to such person by means of the discharge of a fire-
arm. . . .
‘‘For you to find the [petitioner] guilty of this charge,
the state must prove each of the following elements
beyond a reasonable doubt: (1) that the [petitioner]
intended to cause physical injury to another person;
(2) that the [petitioner] caused physical injury to that
person; and (3) that he caused that injury by means of
the discharge of a firearm.
‘‘The state must first prove beyond a reasonable
doubt that the [petitioner] intended to cause physical
injury to another person. What the [petitioner] intended
is a question of fact for you to determine.
‘‘Our statutes provide that a person acts intentionally
with respect to a result or to conduct described by a
statute defining an offense when his conscious objec-
tive is to cause such result or to engage in such
conduct.’’
After setting forth the trial court’s instruction on the
elements of assault in the first degree and comparing
it to the model jury instruction on the same charge, the
habeas court found that the trial court’s instruction was
appropriate. The court therefore concluded that the
petitioner had failed to meet his burden of proving that
trial counsel’s or habeas counsel’s performance was
deficient or that he was prejudiced by any deficient per-
formance.
The standard of review for claims of instructional
impropriety is well established. ‘‘[I]ndividual jury
instructions should not be judged in artificial isolation,
but must be viewed in the context of the overall charge.
. . . The pertinent test is whether the charge, read in
its entirety, fairly presents the case to the jury in such
a way that injustice is not done to either party under
the established rules of law. . . . Thus, [t]he whole
charge must be considered from the standpoint of its
effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error. . . . Accordingly, [i]n
reviewing a constitutional challenge to the trial court’s
instruction, we must consider the jury charge as a whole
to determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, we
must consider whether the instructions [in totality] are
sufficiently correct in law, adapted to the issues and
ample for the guidance of the jury.’’ (Internal quotation
marks omitted.) State v. Revels, 313 Conn. 762, 784, 99
A.3d 1130 (2014), cert. denied, U.S. , 135 S. Ct.
1451, 191 L. Ed. 2d 404 (2015). ‘‘An improper instruction
on an element of an offense . . . is of a constitutional
dimension.’’ (Internal quotation marks omitted.) State
v. Flores, 301 Conn. 77, 83, 17 A.3d 1025 (2011). ‘‘Finally,
because a challenge to the validity of a jury instruction
presents a question of law, we exercise plenary review.’’
State v. Jones, 320 Conn. 22, 53, 128 A.3d 431 (2015).
‘‘It has become axiomatic, through decisional law,
that it is improper for a court to refer in its instruction
to the entire definitional language of [General Statutes]
§ 53a-3 (11), including the [general] intent to engage in
conduct, when the charge relates to a crime requiring
only the [specific] intent to cause a [precise] result.’’
(Internal quotation marks omitted.) Barlow v. Commis-
sioner of Correction, 131 Conn. App. 90, 95 n.2, 26 A.3d
123, cert. denied, 302 Conn. 937, 28 A.3d 989 (2011).
‘‘Although [our appellate courts] have stated that [i]t is
improper for the trial court to read an entire statute to
a jury when the pleadings or the evidence support a
violation of only a portion of the statute . . . that is not
dispositive. We must determine whether it is reasonably
possible that the jury was misled by the trial court’s
instructions.’’ (Citation omitted; internal quotation
marks omitted.) State v. DeJesus, 260 Conn. 466, 474,
797 A.2d 1101 (2002). Our appellate courts consistently
have held that the risk of juror confusion from an
improper intent instruction has been ‘‘eliminated by
the trial court’s numerous proper instructions on the
elements of [the charged offense].’’ (Internal quotation
marks omitted.) Id., 475; see also, e.g., State v. Mon-
tanez, 277 Conn. 735, 745–47, 894 A.2d 928 (2006) (hold-
ing no reasonable possibility jury misled by general
instruction or reference to principle of general intent
eleven times because trial court repeatedly gave clear
instructions on specific intent required for manslaugh-
ter); State v. Austin, 244 Conn. 226, 236–37, 710 A.2d
732 (1998) (any possible risk of jury confusion over
intent element eliminated by numerous proper instruc-
tions on elements of murder and because trial court
distinguished intent required for manslaughter and mur-
der); State v. Prioleau, 235 Conn. 274, 321–22, 664 A.2d
743 (1995) (holding not reasonable to believe jury mis-
led by single use of instruction on general intent that
contained entire statutory definition of intent when trial
court repeatedly instructed jury on specific intent
required for murder); but see State v. Sivak, 84 Conn.
App. 105, 112–13, 852 A.2d 812 (holding that jury in
assault case misled by improper intent instruction that
included statutory definition of intentionally and
focused on intended conduct rather than intended
result because key issue was whether defendant
intended to cause serious physical injury where defen-
dant claimed self-defense and both victim and defen-
dant were intoxicated), cert. denied, 271 Conn. 916, 859
A.2d 573 (2004); State v. Lopes, 78 Conn. App. 264,
271–72, 826 A.2d 1238 (holding reasonably possible that
jury misled because general intent instruction given
with definition of murder and this court did not observe
numerous proper intent instructions), cert. denied, 266
Conn. 902, 832 A.2d 66 (2003).
‘‘Assault in the first degree is a specific intent crime.
It requires that the criminal actor possess the specific
intent to cause serious physical injury to another per-
son.’’ (Internal quotation marks omitted.) State v. Sivak,
supra, 84 Conn. App. 110. ‘‘Conspiracy . . . is a specific
intent crime, with the intent divided into two elements:
[1] the intent to agree or conspire and [2] the intent to
commit the offense which is the object of the conspir-
acy.’’ (Internal quotation marks omitted.) State v. Pond,
315 Conn. 451, 467–68, 108 A.3d 1083 (2015).
The trial court in the present case instructed the jury
on the entire statutory definition of intentionally under
§ 53a-3 (11).9 The court referred the jury to that defini-
tion once. By quoting the definition of ‘‘intentionally’’
contained in § 53a-3 (11), the court gave instructions
on both general intent—the intent to engage in con-
duct—and specific intent—causing a desired result. The
court, thus, improperly provided a general intent
instruction when the only crimes with which the peti-
tioner was charged were specific intent crimes.
Nonetheless, we conclude that, despite the trial
court’s having improperly given the general intent
instruction, it is not reasonably possible that the jury
was misled. In defining assault in the first degree as to
count one, the trial court referred to the specific intent
required by the first element. The trial court explained
that to be guilty of assault in the first degree as an
accessory, the petitioner must have had the same crimi-
nal intent required for assault in the first degree—intent
to cause physical injury. Additionally, the court
instructed that to be found guilty as an accessory, the
petitioner must have intended to aid in the commission
of assault in the first degree.
In defining assault in the first degree in the second
count, the trial court referred the jury to the elements
of that crime and instructed that the state must have
proven all of the elements of the crime beyond a reason-
able doubt. The first element of assault in the first
degree, as explained to the jury, includes the intent to
cause physical injury—specific intent.
In defining conspiracy to commit assault in the first
degree, the trial court explained that the state needed
to prove beyond a reasonable doubt that the petitioner
agreed with one or more persons to engage in conduct
constituting a crime. In explaining this first element
of conspiracy, the trial court referred the jury to the
elements of assault in the first degree. When the trial
court instructed the jury on the third element of conspir-
acy—intent on the part of the petitioner that conduct
constituting the crime be performed—the trial court
explained that the state must have proven that ‘‘the
[petitioner] had the specific intent to violate the law
when he entered into the agreement to engage in con-
duct constituting a crime.’’ At this point, however, the
trial court referred the jury to its previous instruction
‘‘on the law pertaining to intent in [its] instructions on
the first count.’’
We conclude that this case is akin to those in which
our courts have determined that repeated proper
instructions mitigated any harm caused by the improper
general intent instruction, such that it is not reasonable
to conclude that the jury was misled. In its instructions
on the intent required for accessory to assault in the first
degree, the trial court at least thirteen times referred to
the specific intent required for assault and accessorial
liability. The trial court referred the jury to its instruc-
tion on the elements of assault in the first degree, which
included the specific intent to cause physical injury,
five times in its instruction on the second count of
assault in the first degree. In instructing the jury on
conspiracy to commit assault in the first degree, the
court at least four times explained that the jury must
find that the petitioner had the specific intent to partici-
pate in a conspiracy and, by reference to the elements of
assault in the first degree, the specific intent to commit
assault in the first degree.
The trial court’s jury instruction included more than
twenty references to the specific intent required for the
crimes charged in contrast with two improper uses of
a general intent instruction. Although the number of
proper intent instructions given alone is not the mea-
sure of whether an improper intent instruction has been
sufficiently ameliorated; State v. Montanez, supra, 277
Conn. 746 (‘‘A quantitative ‘litmus test’ measuring how
frequently a trial court gives an irrelevant instruction
is . . . insufficient to establish an instruction’s ten-
dency to mislead the jury. The tendency of an irrelevant
instruction to mislead the jury instead must be consid-
ered in the context of the whole charge.’’); in the context
of the whole charge, we are not convinced that it is
reasonably possible that the court’s improper reading
and reference to the full statutory language of general
and specific intent misled the jury.
The petitioner analogizes this case to State v.
DeBarros, 58 Conn. App. 673, 755 A.2d 303, cert. denied,
254 Conn. 931, 761 A.2d 756 (2000), in which this court
held that it was reasonably possible that the jury was
misled when the trial court gave the same improper
intent instruction ten times. Id., 682–83. After reading
the definition of murder to jury, the trial court in
DeBarros instructed: ‘‘There are two elements that the
state has to prove to you beyond a reasonable doubt.
The first is that the defendant had the intent to cause
the death of another person, [the victim]. Second . . .
I’ll now go through these two elements with you one
by one and explain them to you in a little more detail.
The first element is that the defendant had the intent
to cause the death of another person. Our statutes and
law [are] that a person acts intentionally with respect
to a result or to conduct described by a statute defining
an offense when his conscious objective is to cause
such result or to engage in such conduct. Intentional
conduct is purposeful conduct, rather than conduct that
is accidental or inadvertent.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Id., 683–84.
This court concluded, ‘‘[t]he order in which the
instruction was read likely misled the jury to believe
that to intend to cause the death of another person
means either to intend to cause the death of that person
or to intend to engage in conduct that causes the death
of that person. Similarly, when the court referred to the
improper instruction as it charged the jury on attempt to
commit murder and assault in the first degree with a
firearm, the jury was also likely misled in the same
manner.’’ Id., 684.
Although the order of the improper intent instruction
in DeBarros is similar to the present case, this court’s
determination in DeBarros is otherwise distinguishable.
First, the trial court in DeBarros repeated the erroneous
instruction when it instructed the jury on assault in the
first degree and attempted murder. See id., 681–82 n.14
and 684. In the present case, the trial court repeatedly
instructed the jury that it must find that the petitioner
had the requisite specific intent, and the court’s refer-
ences to its prior instructions were to the elements of
assault in the first degree, which included the required
specific intent. Second, in DeBarros the trial court gave
the erroneous instruction ten times, and this court
determined that those improper instructions were too
numerous to be rectified by the court’s proper instruc-
tions. Id., 683. In the present case, the court gave the
erroneous instruction once and only once referred to
it, whereas it gave or referenced proper specific intent
instructions on more than twenty occasions. Accord-
ingly, the habeas court properly denied the erroneous
jury instruction claim set forth in count fourteen of the
petition because the petitioner failed to demonstrate
that he was prejudiced by any alleged deficient perfor-
mance of his trial counsel or habeas counsel.
III
The petitioner also claims that the habeas court
improperly found that appellate counsel’s decision to
forgo a claim of prosecutorial impropriety on direct
appeal was a reasonable strategic decision. The peti-
tioner argues that the prosecutor’s arguments in sum-
mation misrepresented the evidence presented at trial.
He asserts that Turner testified that detectives pres-
sured him to identify the petitioner as the driver of the
car at the shooting scene. Consequently, the petitioner
maintains that the prosecutor mischaracterized the
facts in evidence when he argued that there was no
evidence that the police pressured Turner into identi-
fying the petitioner. We disagree with the petitioner’s
characterization of both Turner’s testimony and the
prosecutor’s argument.
The following additional facts and procedural history
are relevant to the resolution of this claim. The habeas
court found that ‘‘[i]n late [1996],10 the petitioner was
arrested and charged with a gang related drive-by shoot-
ing that occurred on November 24, [1996].11 Immediately
after the shooting, while he was in the hospital, one of
the victims, a member of the rival gang that was in the
other vehicle, Kendall Turner, identified the petitioner
as the shooter and was a key state’s witness at the
criminal trial. . . . Due to [a] delay, the trial was not
held in this case until December, 2002, six years after
the shooting and the petitioner’s arrest. Sometime prior
to trial, Turner recanted his identification of the peti-
tioner. The state then used his original statement at
trial, under the Whelan doctrine.’’12 (Footnotes added.)
The petitioner presented evidence to the habeas court
that at his criminal trial, Turner testified as follows.
After being shot, he and Kelley exited the car and pro-
ceeded on foot to the home of Turner’s aunt. Law
enforcement officers arrived at his aunt’s home shortly
thereafter, and he informed an officer who questioned
him that there were three or four African-American
males in a Sentra from which the shots were fired, but
he did not know any of them and was unable to describe
them further. An ambulance was summoned and, as he
was being placed into the ambulance, Turner spoke
with another law enforcement officer, Detective Wil-
liam Piascyk.
Turner’s testimony on cross-examination by trial
counsel continued as follows:
‘‘Q. And you told Detective Piascyk that the shots
that came from the [Sentra], four-door hardtop, which
you believe was dark green; isn’t that right?
‘‘A. It’s probably—
‘‘Q. But you were not able to tell Detective Piascyk,
and, in fact, you did not give Detective Piascyk the
names of anybody who had been involved in shooting
you; isn’t that right?
‘‘A. Yes.
‘‘Q. And that’s because you didn’t know; isn’t that
right?
‘‘A. Yes.
‘‘Q. But later at the hospital, these two detectives
came and showed you these pictures and, at that point,
you gave this witness statement; isn’t that right, the
taped statement? Isn’t that right?
‘‘A. Yes.
‘‘Q. And as we all know, at that time you claimed
that [the petitioner] was the driver of that car?
‘‘A. Yes.
‘‘Q. But that wasn’t the truth, was it?
‘‘A. No.
‘‘Q. So, why did you say that about him?
‘‘A. Pressuring me.
‘‘Q. Pressure?
‘‘A. Yeah.
‘‘Q. From whom?
‘‘A. All of them, detectives.
‘‘Q. And was that Detective Trocchio?
‘‘A. I don’t even know their name.
‘‘Q. You don’t know his name?
‘‘A. I don’t know none of them.
‘‘Q. Because, in fact, you had known [the petitioner]
most of your life; isn’t that right?
‘‘A. Yes.
‘‘Q. You knew him when you were kids?
‘‘A. Yes.
‘‘Q. You recognized him any time you saw him. And
in fact, if [the petitioner] was driving the car, you would
have—and you’d seen him, you would have known who
it was; isn’t that right?
‘‘A. Yes.’’
During the rebuttal portion of his closing argument,
the prosecutor stated: ‘‘You heard about why don’t you
speculate that the police are somehow feeding infor-
mation to . . . Turner. Is there any shred of evidence,
any shred of evidence in this case that anything like
that ever happened? No, there is not. And if there isn’t
any evidence on it, you can’t conclude that it had been.
Even . . . Turner, who you will have [to] agree was
pretty much willing to agree with anything [trial coun-
sel] said yesterday, not only wasn’t asked but certainly
never said, oh, yeah, I named [the petitioner] because
the police told me to. Not once. There is no evidence
of that, and you can’t conclude that it exists when there
is no evidence. . . .
‘‘And the evidence, as I would say, does not include
any suggestions, any suggestions even from the cooper-
ative Mr. Turner, that the police told him to say any-
thing. His response to, why did you say that, when he
claimed to be making up the name was, I can’t tell
you that.
***
‘‘And all of the suggestions that somebody planted
this material in his head are contradicted by the evi-
dence that’s admitted in this case. What was the reason
that Mr. Turner would falsely identify [the petitioner]?
There isn’t any. There is nothing in this case to suggest
that he would falsely identify someone.’’13 (Emphasis
added.)
Trial counsel did not object to the prosecutor’s state-
ments at trial. When asked about claims that she could
have brought but did not raise on appeal, appellate
counsel testified at the habeas trial in the present case
that she thought that the prosecutor’s closing argument
was improper but that she thought it was a weak claim
of prosecutorial impropriety.
The habeas court’s denial of the petitioner’s claim
that appellate counsel was deficient in failing to raise
a claim of prosecutorial impropriety rested on three
grounds. First, the court found that there was no evi-
dence that if appellate counsel had raised the prosecu-
torial impropriety claim she would have or could have
met the standards required under Golding for review
of such an unpreserved claim.14 Second, the court deter-
mined that appellate counsel made a reasonable strate-
gic decision to forgo the claim because she considered
it weak. Third, the court determined that the petitioner
had failed to establish that there was a reasonable prob-
ability that he would have prevailed on appeal.
‘‘On appeal, the petitioner must overcome the pre-
sumption that, under the circumstances, the challenged
action might be considered sound [appellate] strategy.’’
(Internal quotation marks omitted.) Otto v. Commis-
sioner of Correction, 161 Conn. App. 210, 226, 136 A.3d
14 (2015), cert. denied, 321 Conn. 904, 138 A.3d 281(2016); see also Alterisi v. Commissioner of Correc-
tion, 145 Conn. App. 218, 227, 77 A.3d 748 (tactical
decision of appellate counsel not to raise particular
claim ordinarily matter of appellate tactics and not evi-
dence of incompetency), cert. denied, 310 Conn. 933, 78
A.3d 859 (2013). ‘‘Legal contentions, like the currency,
depreciate through over-issue. The mind of an appellate
judge is habitually receptive to the suggestion that a
lower court committed an error. But receptiveness
declines as the number of assigned errors increases.
Multiplicity hints at a lack of confidence in any one
[issue] . . . . [M]ultiplying assignments of error will
dilute and weaken a good case and will not save a bad
one.’’ (Internal quotation marks omitted.) Synakorn v.
Commissioner of Correction, 124 Conn. App. 768, 775,
6 A.3d 819 (2010), cert. denied, 300 Conn. 906, 12 A.3d
1004 (2011).
‘‘[T]he defendant’s failure to object at trial to each
of the occurrences that he now raises as instances of
prosecutorial impropriety, though relevant to our
inquiry, is not fatal to review of his claims. . . . This
does not mean, however, that the absence of an objec-
tion at trial does not play a significant role in the deter-
mination of whether the challenged statements were,
in fact, improper. . . . To the contrary, we continue
to adhere to the well established maxim that defense
counsel’s failure to object to the prosecutor’s argument
when it was made suggests that defense counsel did
not believe that it was [improper] in light of the record
of the case at the time.’’ (Internal quotation marks omit-
ted.) State v. Barry A., 145 Conn. App. 582, 597, 76 A.3d
211, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013).
In the present case, we disagree with the petitioner’s
characterization of both Turner’s testimony and the
prosecutor’s statements to the jury. Although Turner’s
testimony may have indicated that law enforcement
officers pressured him to make a statement, it did not
indicate that they were feeding him information. His
testimony suggested that law enforcement officers were
trying to persuade him to give a statement, but Turner
did not testify that the police told him what to say.
His testimony indicated that law enforcement officers
presented him with a photographic array and that he
identified the petitioner from it. It was, therefore, a
reasonable characterization of the evidence, his testi-
mony included, that he was not told to identify the
petitioner or that he was fed information.
The evidence, thus, supports the habeas court’s con-
clusion that appellate counsel made a reasonable strate-
gic decision in choosing to forgo a meritless or weak
claim of prosecutorial impropriety. Appellate counsel’s
performance, therefore, was not deficient for having
failed to bring such a claim. Accordingly, a claim of
ineffective assistance of habeas counsel for failing to
claim that appellate counsel was ineffective on this
ground cannot stand.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted the petitioner certification to appeal. See
General Statutes § 52-470.
2
See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1986).
3
As stated exactly by the petitioner, the second issue he raises on appeal
asks ‘‘whether the habeas court erred when it failed to consider the trial
court’s jury instruction defining ‘acting intentionally,’ which included the
definition for specific and general intent . . . .’’ On the basis of our reading
of the petitioner’s arguments in support of this claim, we understand his
claim to be that the habeas court improperly denied his claim of ineffective
assistance of habeas counsel for failing to raise a claim that his trial counsel
was ineffective for failing to raise a claim of instructional error when the
habeas court failed to adequately address the legal ramifications of the trial
court’s reading of the statutory definition of ‘‘acting intentionally.’’
4
The habeas court determined that the petitioner had abandoned an addi-
tional claim of ineffective assistance of counsel for the alleged failure to
advise the petitioner of his right to apply for sentence review sufficiently.
Salters v. Commissioner of Correction, supra, 141 Conn. App. 84 n.1.
5
See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
6
Prosecutorial impropriety claims are not subject to analysis pursuant to
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). State v. Fauci,
282 Conn. 23, 34, 917 A.2d 978 (2007).
7
Such a standard would be more advantageous to the petitioner. ‘‘In a
classic Brady case, involving the state’s inadvertent failure to disclose favor-
able evidence, the evidence will be deemed material only if there would be a
reasonable probability of a different result if the evidence had been disclosed.
[The] touchstone of materiality [under United States v. Bagley, 473 U.S.
667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)] is a reasonable probability
of a different result, and the adjective is important. The question is not
whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence. A reasonable
probability of a different result is accordingly shown when the government’s
evidentiary suppression undermines confidence in the outcome of the
trial. . . .
‘‘When, however, a prosecutor obtains a conviction with evidence that
he or she knows or should know to be false, the materiality standard is
significantly more favorable to the defendant. [A] conviction obtained by
the knowing use of perjured testimony is fundamentally unfair, and must
be set aside if there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury. . . . This standard . . .
applies whether the state solicited the false testimony or allowed it to go
uncorrected . . . and is not substantively different from the test that per-
mits the state to avoid having a conviction set aside, notwithstanding a
violation of constitutional magnitude, upon a showing that the violation was
harmless beyond a reasonable doubt. . . . This strict standard of materiality
is appropriate in such cases not just because they involve prosecutorial
misconduct, but more importantly because they involve a corruption of the
truth-seeking function of the trial process. . . . In light of this corrupting
effect, and because the state’s use of false testimony is fundamentally unfair,
prejudice sufficient to satisfy the materiality standard is readily shown . . .
such that reversal is virtually automatic . . . unless the state’s case is so
overwhelming that there is no reasonable likelihood that the false testimony
could have affected the judgment of the jury.’’ (Citations omitted; internal
quotation marks omitted.) Adams v. Commissioner of Correction, 309 Conn.
359, 370–73, 71 A.3d 512 (2013).
8
As to his claim on appeal that the habeas court erred in failing to apply
the ‘‘findings’’ of this court in Salters v. Commissioner of Correction, supra,
89 Conn. App. 221, to his claim that habeas counsel was ineffective for
having failed to allege that appellate counsel was ineffective for failing to
bring a Brady claim, the petitioner acknowledges that that claim is depen-
dent on a favorable determination by this court on his materiality claim.
Because we conclude that he has not provided an adequate record to review
his materiality claim and the habeas court otherwise concluded that his
Brady claims were immaterial, we do not address his third claim on appeal.
9
Compare the trial court’s instruction to General Statutes § 53a-3, which
provides in relevant part: ‘‘Except where different meanings are expressly
specified, the following terms have the following meanings when used in
this title . . . (11) A person acts intentionally with respect to a result or
to conduct described by a statute defining an offense when his conscious
objective is to cause such result or to engage in such conduct . . . .’’
10
The habeas court’s memorandum of decision states that the petitioner
was arrested and that the crime occurred in 2006, but this is a typographical
error, as all of the evidence, and the habeas court’s other recitations of
facts, indicate that these events occurred in 1996.
11
See footnote 10 of this opinion.
12
See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479
U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
13
Even if we assume that the prosecutor’s argument was an incorrect
characterization of Turner’s testimony, because Turner testified that he
was ‘‘pressured,’’ the petitioner has not demonstrated that the statement,
considered in the full context of a closing argument, is of the type or level
of prosecutorial impropriety that has been determined to deprive a defendant
of his due process right to a fair trial. See State v. Orellana, 89 Conn. App.
71, 106, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005); see
also State v. Maguire, 310 Conn. 535, 552, 78 A.3d 828 (2013) (‘‘[w]hen a
defendant raises on appeal a claim that improper remarks by the prosecutor
deprived [him] of his constitutional right to a fair trial, the burden is on the
defendant to show . . . that the remarks were improper’’ [internal quotation
marks omitted]). Additionally, the prosecutor made this argument in
response to suggestions by trial counsel that the police told Turner to identify
the petitioner. ‘‘[T]here is ample room, in the heat of argument, for the
prosecutor to challenge vigorously the arguments made by defense counsel.’’
(Internal quotation marks omitted.) State v. Maner, 147 Conn. App. 761,
789, 83 A.3d 1182, cert. denied, 311 Conn. 935, 88 A.3d 550 (2014).
14
Prosecutorial impropriety claims are not subject to analysis pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). State v. Fauci,
282 Conn. 23, 34, 917 A.2d 978 (2007). Although the habeas court based its
conclusion in part on this determination, this does not affect our conclusion
that the habeas court properly denied this claim for the reasons we discuss.