author: BERDON, J.

text:
    STATE OF CONNECTICUT v. REGINALD JOSEPH
    (AC 28679)
    Lavine, Robinson and Berdon, Js.

      Argued April 14
    officially released August 11, 2009

      Matthew D. Popilowski, special deputy assistant public defender, with whom was Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and James M. Bemardi, supervisor assistant state’s attorney, for the appellee (state).
   Opinion

BERDON, J.

The defendant, Reginald Joseph, appeals from the judgments of conviction, rendered after a jury trial of one count of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 (a) (2), and two counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The court, Hon. Martin L. Nigro, judge trial referee, sentenced the defendant to an effective term of eight years imprisonment. On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction of unlawful restraint in the first degree; (2) the court improperly failed to instruct the jury on reckless endangerment in the second degree, which he claims is a lesser offense included within unlawful restraint in the first degree; (3) the court improperly instructed the jury on the statutoiy definition of intent; and (4) the court improperly joined in one trial the charges against him, which arose from two unrelated incidents. We agree with the defendant’s second claim and, therefore, reverse the judgment in the second case with respect to the defendant’s conviction of two counts of unlawful restraint in the first degree. With respect to the defendant’s conviction of larceny in the third degree in the first case, we conclude that the defendant has failed to demonstrate substantial prejudice as a result of the joinder, and, therefore, we affirm that judgment.

Evidence of the following facts was presented at trial. On December 30, 2005, Jolanta Pierce, the manager of the Toys “R” Us store in Danbury, called Richard Fernandez, the district loss prevention manager, to investigate a theft of merchandise. When Fernandez arrived at the Danbury store, he and Pierce viewed a videotape that allegedly showed the defendant, an employee of the store, removing a large amount of electronics merchandise from the store without paying for it. Fernandez called the defendant, explained the content of the tape and asked the defendant to return to the store and do his best to recover the merchandise that he took. The defendant admitted that he had removed merchandise from the store without paying for it and agreed to return to the store.

Upon his arrival at the store, the defendant returned approximately $1450 worth of merchandise, which was scanned and determined to be part of the merchandise that had been taken that day. He also admitted that he had stolen other merchandise, valued by Fernandez at approximately $12,000, which he already had turned over to individuals in Bridgeport to sell. In a signed statement, which was introduced into evidence, the defendant admitted that, with the help of others, he had stolen from the store between $15,000 and $17,000 worth of merchandise. Fernandez testified that the defendant admitted to stealing approximately $3000 worth of merchandise on December 29, 2005, and approximately $13,000 worth of merchandise on December 30, 2005. The December 30 incident is the incident with which the defendant was charged. Thereafter, the police arrested the defendant, and he was charged with larceny in the third degree.

In an unrelated incident, on January 31, 2006, at approximately 9 p.m., Melinda Mock and her twenty-two year old son, Joseph Baker, returned to Mock’s condominium in Norwalk. Mock and the defendant had been involved romantically, and the defendant kept some of his personal effects at her condominium. As Mock and Baker approached Mock’s deck, the defendant confronted them and poured gasoline on himself. The events that followed were disputed at trial.

On the night of that incident, Baker signed a statement, which was admitted into evidence, indicating that (1) the defendant poured gasoline on himself and stated, “you think I’m playing”; (2) Baker heard the lighter make a clicking noise but did not see a flame; (3) the defendant pulled Mock and rubbed her hand on his chest; (4) the defendant poured gasoline on Baker and Mock; and (5) Baker “squared up with [the defendant] and then [he] was scuffling with him .... After [they] wrestled for a while then [Mock] broke it up . . . .” Mock also signed a statement that night, which was admitted into evidence, indicating that (1) she saw the defendant come from “nowhere”; (2) the defendant held a twisted newspaper and a lighter “as if he was going to light himself up”; (3) she was “pushing [the defendant] away”; and (4) the defendant “went towards [her] son and grabbed him . . . .” The next day, in connection with this incident, the Norwalk police department arrested the defendant on charges of attempt to commit assault in the first degree and unlawful restraint in the first degree.

At trial, Baker testified that his memoiy of the January 31, 2006 incident was unclear. Although at times his testimony was self-contradictory, he clearly stated that the defendant did not pull Mock or pour gasoline on her. He also described his encounter with the defendant as a fight. Mock’s trial testimony also differed from her January 31 statement. She testified that she did not remember the incident well, the defendant poured gasoline on himself and not on her, she pushed him in an attempt to stop him from hurting himself and she did not want him to be prosecuted.

In connection with the December 30, 2005 incident, the jury found the defendant guilty of larceny in the third degree. In connection with the January 31, 2006 incident, the jury found the defendant not guilty of two counts of attempt to commit assault in the first degree and guilty of two counts of unlawful restraint in the first degree. This appeal followed.

I

The defendant claims that the evidence adduced at trial was insufficient to sustain his conviction of unlawful restraint in the first degree. “In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jason B., 111 Conn. App. 359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009).

“A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.” General Statutes § 53a-95 (a). Unlawful restraint in the first degree requires that the defendant had the specific intent to restrain the victim. State v. Youngs, 97 Conn. App. 348, 363, 904 A.2d 1240, cert. denied, 280 Conn. 930, 909 A.2d 959 (2006). “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. . . .” General Statutes § 53a-91 (1).

The defendant argues that the state did not present sufficient evidence from which the jury could have found beyond a reasonable doubt that he intentionally restrained Mock and Baker. The defendant argues that to prove restraint, the state relied on the conflicting testimony of Baker and Mock, which, even if accepted, proved only that he poured gasoline on himself and that any contact between himself and Baker and Mock was incidental to his conduct toward himself. Notwithstanding the defendant’s argument, the statements of Mock and Baker from the night of the incident indicated that (1) the defendant pulled Mock and rubbed gasoline on her; (2) the defendant grabbed Baker; and (3) Baker and the defendant wrestled. Reviewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the defendant intentionally restrained Mock and Baker. See, e.g., State v. Drake, 19 Conn. App. 396, 400-401, 562 A.2d 1130 (1989) (large male defendant restrained female victim where he, appearing “ ‘desperate,’ ” entered her home and told her to hang up telephone and that he was running from police); State v. Pauling, 102 Conn. App. 556, 565-66, 925 A.2d 1200 (defendant restrained victim where he slapped her, struggled with her, grabbed her by throat and threw her onto bed), cert. denied, 284 Conn. 924, 933 A.2d 727 (2007). Accordingly, we conclude that the evidence adduced at trial was sufficient to sustain the defendant’s conviction of two counts of unlawful restraint in the first degree.

II

The defendant argues next that the court improperly failed to instruct the jury on reckless endangerment in the second degree as a lesser offense included within unlawful restraint in the first degree. We agree.

Before we reach the merits of the defendant’s claim, we must address the state’s assertion that we should decline to review this claim because the defendant abandoned it. The state argues that the defendant abandoned his request for a jury instruction on reckless endangerment in the second degree because he did not ask the court to state on the record a ruling on the request. It is well established, however, that a party preserves its right to challenge on appeal a jury instruction by submitting a written request to charge or by taking an exception to the court’s instruction immediately after it is given. State v. Gonzalez, 106 Conn. App. 238, 244, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). A party abandons a request for a jury instruction by expressly withdrawing the request or by acquiescing to a charge that does not conform with the request. See Stuart v. Stuttig, 63 Conn. App. 222, 227, 772 A.2d 778 (2001) (after filing written request to charge, defendant abandoned claim of improper instruction by stating to judge that request was not an issue). The state fails to cite any authority in support of the premise that a party abandons the right to challenge on appeal a jury instruction if the court does not state on the record its ruling on the request for the instruction. In the present case, although the defendant did not except to the charge, the record does not indicate that he acquiesced to the charge or withdrew his request. Therefore, we cannot conclude that the defendant abandoned his request.

We now address the merits of the defendant’s claim that he was entitled to a jury instruction on reckless endangerment in the second degree as a lesser offense included within unlawful restraint in the first degree. “There is no fundamental constitutional right to a jury instruction on every lesser included offense . . . rather, the right to such an instruction is purely a matter of our common law. ... In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), our Supreme Court determined that a lesser included offense instruction should be given when: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Citation omitted; internal quotation marks omitted.) State v. Rudd, 62 Conn. App. 702, 705-706, 773 A.2d 370 (2001).

A defendant is entitled to an instruction on a lesser included offense, if, and only if, the four Whistnant factors are satisfied. State v. Herring, 210 Conn. 78, 104, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). “In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, [179 Conn. 588], we view the evidence in the light most favorable to the defendant’s request for a charge on a lesser included offense. . . . [T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Internal quotation marks omitted.) State v. Faria, 47 Conn. App. 159, 178, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998).

“A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book § 854 [now § 42-18]. . . . Practice Book § 42-18 (a) provides in relevant part: When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition should apply.” (Internal quotation marks omitted.) State v. Rudd, supra, 62 Conn. App. 706. Our Supreme Court has stated that “[although strict compliance with the provisions of § 42-18 is certainly the least perilous method of satisfying Whistnant's first prong, failure to do so is not, by itself, fatal to the defendant’s claim. We have deemed the first prong of Whistnant satisfied when the record indicates that the trial court knew the precise point to which the defendant wished to call attention.” (Internal quotation marks omitted.) State v. Smith, 262 Conn. 453, 466, 815 A.2d 1216 (2003). Generally, however, a request for a jury instruction must be submitted in writing. See, e.g., State v. Rudd, supra, 706-707; see also State v. Jacobs, 194 Conn. 119, 128, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985).

In the present case, with respect to the two counts of assault in the first degree of which the defendant was acquitted, the defendant submitted a written request to charge the jury on reckless endangerment in the second degree. At the charging conference, the defendant also orally requested that the reckless endangerment in the second degree instruction be given with respect to the two counts of unlawful restraint in the first degree. The record reflects an in-depth discussion of this issue between the defendant’s counsel, the prosecutor and the court.1 ** The record also reflects that the defendant’s counsel clearly argued the legal basis of her request,* *** the court summarized to the parties its understanding of the defendant’s argument, the state clearly argued its opposition to the defendant’s request and the court stated that it would “take [the arguments] under consideration . . . .” Under these circumstances, it is clear that the court was made aware of the legal and factual basis of the defendant’s request. See State v. Smith, supra, 262 Conn. 466. We note that in most situations, in order to satisfy the first prong of Whistnant, a party must submit the request in writing. In this case, however, we conclude that this requirement was excused because the court expressly stated that it would take “under consideration” the arguments on this issue. See State v. Herring, supra, 210 Conn. 105 n.25 (first prong of Whistnant satisfied where court stated that oral request sufficed). Therefore, under these circumstances, we conclude that the defendant’s request satisfied the first prong of Whistnant.

With respect to the second prong of Whistnant, the defendant argues that it is not possible to commit unlawful restraint in the first degree without committing reckless endangerment in the second degree. Pursuant to § 53a-95, “[a] person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.” Pursuant to § 53a-91 (1), “ ‘[rjestrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved . . . .” Pursuant to General Statutes § 53a-64 (a), a person is guilty of reckless endangerment in the second degree “when he recklessly engages in conduct which creates a risk of physical injury to another person.”

It is clear that an individual cannot “restrain” another individual without engaging in “conduct.” At oral argument before this court, the state also conceded that a crime can be a lesser included offense of another even though the two crimes require different states of mind. See State v. Rodriguez, 180 Conn. 382, 407, 429 A.2d 919 (1980) (“[f]or purposes of the second condition of Whistnant, we conclude . . . that an offense that would be a lesser included offense but for its requirement of a less culpable state of mind than that required for the greater, will be deemed a lesser included offense”). Therefore, the “specific intent” element of unlawful restraint in the first degree and the “recklessness” element of reckless endangerment in the second degree do not preclude this court from concluding that reckless endangerment in the second degree is a lesser offense included within unlawful restraint in the first degree.

The last distinction between these two offenses is that unlawful restraint in the first degree requires the defendant to “expose” another individual “to a substantial risk of physical injury,” and reckless endangerment in the second degree requires the defendant to “create” a “nsk of injury” to another individual. The defendant claims that it is impossible to expose another individual to a substantial risk of physical injury without creating a risk of physical injury to that individual. The defendant argues that the act of exposing an individual to a risk, even if the risk originally was created by a third party, necessarily creates a risk to the individual who has been exposed to the risk. In other words, “exposing” an individual to an existing risk “creates” a separate risk to that individual. At oral argument before this court, the state conceded this premise, and we agree with it. Moreover, it is impossible to expose or to create a substantial risk of physical injury to an individual without exposing or creating a risk of physical injury to that individual. Therefore, having established that but for the mental state element, the defendant could not have committed unlawful restraint in the first degree without having committed reckless endangerment in the second degree, we conclude that the defendant has satisfied the second prong of Whistnant. See State v. Rodriguez, supra, 180 Conn. 407.

Next, we analyze together the third and fourth prongs of Whistnant because they are subject to the same evidentiary analysis. See State v. Smith, supra, 262 Conn. 468-69. “The third prong of Whistnant requires that there [be] some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense .... The fourth prong requires that the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. . . . [W]e will, however, consider the evidence available at trial in the light most favorable to the defendant’s request.” (Citations omitted; internal quotation marks omitted.) Id., 469-70.

Viewed in the light most favorable to the defendant, we conclude that the defendant has satisfied the third and fourth prongs of Whistnant. Baker and Mock were the primary sources of the state’s evidence against the defendant. At trial, Baker testified that the defendant poured gasoline only on himself. He also testified that the defendant did not grab Mock and described his encounter with the defendant as a “fight.” Mock also testified that the defendant poured gasoline only on himself, it was she who pushed the defendant and, on the night of the incident, her only concern was that the defendant might try to hurt himself. Although the statements made to the police by Mock and Baker on the night of the incident, which were admitted into evidence, provided a sufficient evidentiary basis to convict the defendant of two counts of unlawful restraint in the first degree, we also conclude that the trial testimony of Mock and Baker justified conviction of the lesser included offense of reckless endangerment in the second degree. The jury reasonably could have found that the defendant, while attempting to harm himself, recklessly engaged in conduct that created a risk of injury to Mock and Baker but that he did not intend to restrain them. See General Statutes §§ 53a-64 (a) and 53a-95. Moreover, when viewed in the light most favorable to the defendant, the evidence was sufficiently in dispute to allow a jury consistently to find the defendant innocent of unlawful restraint in the first degree and guilty of reckless endangerment in the second degree. Accordingly, the defendant has satisfied the third and fourth prongs of Whistnanl.

Having concluded that the court improperly failed to instruct the jury on reckless endangerment in the second degree as a lesser offense included within unlawful restraint in the first degree, we reverse the defendant’s conviction of two counts of unlawful restraint in the first degree.

Ill

The defendant’s final claim is that the court improperly joined for one trial the charges against him arising from the two unrelated incidents taking place on December 30, 2005, and January 31, 2006. Although, under most circumstances, charges arising from unrelated incidents should not be joined for one trial if one incident involves allegations of violent conduct and the other does not, under these circumstances, we cannot conclude that the court abused its discretion when it granted the state’s motion to join these two cases.

“Practice Book § 41-19 provides that [t]he judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together. ... In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.” (Citation omitted; internal quotation marks omitted.) State v. Davis, 286 Conn. 17, 27-28, 942 A.2d 373 (2008).

In the present case, with respect to the defendant’s larceny conviction, the defendant cannot demonstrate prejudice from the joinder because the evidence of his guilt was overwhelming. The defendant signed a confession in which he admitted to stealing between $15,000 and $17,000 worth of merchandise in two days. The state presented testimony indicating that the defendant admitted that all but $3000 worth of that merchandise was taken during the December 30, 2005 theft. The state also presented evidence that the defendant returned more than $1400 worth of stolen merchandise, which alone exceeded the $1000 value that the state needed to prove to convict the defendant of larceny in the third degree. See State v. Atkinson 235 Conn. 748, 765, 670 A.2d 276 (1996) (no prejudice from joining charge of escaping from prison with “crime of an extremely violent nature” where defendant confessed to escape). Similar to the circumstances of Atkinson, the defendant admitted to the underlying facts of the larceny charge and offered no legal defense for his conduct. Moreover, the court’s instructions to the jury regarding the joinder also were comprehensive. Under these circumstances, the defendant cannot show substantial prejudice from the joinder of his two cases.

The judgment in the second case is reversed only as to the conviction of two counts of unlawful restraint in the first degree and the case is remanded for a new trial on those counts. The judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       The videotape was never introduced at trial because it was lost.

       After the trial, the defendant preserved this claim by moving for a judgment of acquittal. See State v. Jason B., 111 Conn. App. 359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009).

       This conclusion does not address whether the defendant properly requested an instruction on reckless endangerment in the second degree. Under State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we consider along with the merits of the defendant’s claim, the propriety of his request for the instruction. Our conclusion here states only that the defendant did not abandon his right to challenge on appeal an otherwise properly requested instruction solely on the ground that the record does not indicate that the court expressly denied his request.

       The record reflects that the following colloquy took place at the charging conference:
      “[Defense Counsel]: And, I have a backup position, Your Honor, which is that reckless endangerment in the second degree should be given as . . . a lesser included offense of counts two—no, I’m sorry, of counts three and four of unlawful restraint in the first degree, and I know [that] even though it is not under the same group of statutes, in other words, it is in a different section, there is no element in reckless endangerment in the third degree which is not a subsumed element, of unlawful restraint. Unlawful restraint requires proof that the defendant restrained someone, which is, of course, engaging in conduct, under circumstances which expose the person restrained [to a] substantial risk of physical injury. And, in reckless endangerment in the second degree, it simply requires that the state prove, recklessly engaging in conduct, which is, of course, a subsumed state of mind that creates a risk of physical ipjury to another person. So, a risk of physical ipjury is obviously less than a substantial risk of physical injury. So, our claim is that it would also—reckless endangerment in the second degree would also be a lesser included offense of counts three and four, which charge unlawful restraint in the first degree.
      “The Court: So, you’re claiming it is a lesser included of the charge of unlawful restraint?
      “[Defense Counsel]: Yes, Your Honor, I am.
      “[The Prosecutor]: Well, Your Honor, I would claim once again that just looking at them, you could commit a crime of unlawful restraint without having committed the crime of reckless endangerment. The permutations of how you can commit both crimes without having committed the other are legion.
      “[Defense Counsel]: The factual basis, Your Honor, that I would claim is that they might find that the conduct was less than restraint, but, that it exposed those two to a substantial risk of—to a risk of physical injury by the reckless engaging in the tussling or the reckless engaging in the touching of the hand to the chest or advancing on someone.
      “[The Prosecutor]: Well, in the—case, Your Honor, if you don’t look at the facts that they were—in resolving the inquiry posed by Whistnant requirement number two, I think clearly they indicate [that] you only look at the pleadings, not at the facts of the individual cases before the court, and in so doing, you see whether or not a particular crime could be committed without having first having to make—
      “The Court: Yes, I think—
      “[The Prosecutor]:—otherwise it just pushes the charging function—
      “The Court:—the unlawful restraint crimes don’t involve physical injury, I don’t think.

        “[Defense Counsel]: Your Honor, it, I believe, unlawful restraint in the first degree requires exposing [a person] to a substantial risk of physical injury. I think the test is on the second prong that reckless endangerment in the second degree not involve an element—
      “The Court: Of intent?
      “[Defense Counsel]:—that is not found in unlawful restraint in the first degree, and what I am saying is that the second prong is met, and my discussion of the facts of the case are that it was just to lay out the factual basis that’s required in a request to charge. It is not to say that that’s the only way that it is decided; I’m just saying that, I’m just adding that additionally as the factual basis.
      “The Court: In other words, what you’re advocating is [that] it is impossible to commit unlawful restraint without having committed the elements of the crime of—
      “[Defense Counsel]: Right, reckless endangerment.
      “The Court:—of reckless endangerment.
      “[The Prosecutor]: I would disagree with that, Your Honor, for the same reason that the court reasoned that you could commit the crime of attempted assault in the first degree without having committed reckless endangerment. The same logic applies to both situations.
      “The Court: Yes, what is your distinction? Do you have a case on point or is it just your logic?
      “[Defense Counsel]: No, Your Honor, I’ve never even seen a request to charge in this instance. Just looking at the elements, I don’t think there’s a difference. I don’t have a case on point, however, other than also citing to the court that it is a subsumed intent and a subsumed result.
      “The Court: All right, now, what are the elements in reckless endangerment?
      “[Defense Counsel]: I’m sorry, I just—
      “The Court: Is that my book or yours?
      “[Defense Counsel]: The elements of reckless endangerment are [that] a person is guilty of reckless endangerment in the second degree when he (1) recklessly engages in conduct and (2) creates a risk of physical injury to another person.
      “The Court: So, you have to be—you cannot commit assault in the first degree—you cannot commit unlawful restraint without recklessly—
      “[Defense Counsel]: Right.
      “The Court:—risking danger and without—
      “[Defense Counsel]: Without recklessly engaging in conduct—without engaging in conduct. Now, whether that’s purposeful or what? Reckless would be a subsumed intent to that, and then exposing someone to a substantial risk of physical injury is creating a risk of physical injury [and] is subsumed in that.
      “[The Prosecutor]: I don’t think the question is whether or not it is subsumed intent, Your Honor, you can always argue that it is subsumed intent. A breach of the peace probably would be a lesser included of every crime in the book. The fact of the matter is that you can’t unlawfully restrain someone intentionally without having to recklessly engage in conduct which creates a risk of physical injury to them theoretically. That’s all that is required. And, for the same reasons assault in the first degree is not a— attempted assault in the first degree is not a lesser of attempted murder or so forth—they just ruled that reckless—the case says, reckless endangerment is not a lesser included of attempted murder. Your Honor is not hearing anything different than what the Appellate Court heard with regard to reckless endangerment and attempted murder.
      “The Court: All right, it seems to me that’s so, but I’ll take it under consideration, but I think you have a very uphill battle. Have you Shepardized this case?
      “[The Prosecutor]: I did not get a chance to because—
      “[Defense Counsel]: There is a recent case, Your Honor, I think it is a 2005, but nothing more exciting than what the court has. It also is an Appellate Court case, not Supreme [Court].”

       In her argument before the trial court, the defendant’s counsel conceded that she could not find any case law that held that reckless endangerment in the second degree was a lesser offense included within unlawful restraint in the first degree. Defense counsel argued, however, that reckless endangerment in the second degree was a lesser offense included within unlawful restraint in the first degree because, from looking at the elements of both offenses, it was clear that the elements of reckless endangerment in the second degree were subsumed by the elements of unlawful restraint in the first degree. Our Supreme Court has held that a defendant’s failure to cite specific authority in support of a request for a charge on a lesser included offense is not fatal to a defendant’s claim if there is no settled law on whether the offense for which the charge has been requested is in fact a lesser included offense of the offense charged. See State v. Arena, 235 Conn. 67, 77, 663 A.2d 972 (1995).

       With respect to the defendant’s conviction of unlawful restraint in the first degree, the defendant also argues that the court improperly instructed the jury on the definition of general intent because all of the crimes for which he was on trial required a finding of specific intent. The state conceded that the court improperly instructed the jury in this respect but argued that the error was harmless beyond a reasonable doubt. Because we reverse the defendant’s conviction of unlawful restraint in the first degree on alternate grounds, it is unnecessary for us to consider whether the improper instruction on general intent was harmless beyond a reasonable doubt. We do, however, reiterate our previous holding that it is improper to instruct the jury on the definition of general intent if the defendant is on trial only for crimes that require a finding of specific intent. See, e.g., State v. Lewis, 113 Conn. App. 731, 738, 967 A.2d 618 (2009).

       We need not address the issue of whether the joinder resulted in substantial prejudice with respect to the unlawful restraint conviction because we already have concluded that the defendant is entitled to a new trial on that charge.

       General Statutes § 53a-121 (a) (1) provides in relevant part that “value means the market value of the property or services at the time and place of the crime . . . .”

       Before the jury was empaneled, the court instructed the prospective jurors that “each case must be considered separately and must be decided by your verdict independently of the others. Unless I tell you otherwise— expressly tell you otherwise—you will not—you will not be allowed to use any evidence concerning one case to influence your deliberations and verdict on the other case.”
      In its final charge, the court instructed the jury that it “must consider, not only for the larceny bu1 with regard to the other four alleged crimes, whether or not the state has met its burden of proof as to these crimes, separately and distinctly. . . . That is, you must consider the larceny charge and all of the evidence related to that charge, separately and distinctly, in arriving at your determination of whether or not the state has met its burden .... Then with regard to attempted assault in the first degree, you must consider, from all of the evidence, separately and distinctly, whether or not the state has met its burden of proving that case involving the alleged victim .... And same with the other two counts that occurred, supposedly, on the thirty-first day of January in 2006.”


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    OMAR J. MILLER v. COMMISSIONER OF CORRECTION
    (AC 29562)
    DiPentima, Gruendel and Peters, Js.

      Argued April 15
    officially released August 11, 2009

      Michael Zariphes, special public defender, for the appellant (petitioner).

      Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, Omar J. Miller, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He contends that the court improperly concluded that he failed to prove his claim of ineffective assistance of counsel. The petitioner further alleges a due process violation. We affirm the judgment of the habeas court.

The court’s memorandum of decision contains the following findings of fact. “The petitioner was convicted of the January 15, 1991 shooting death of . . . Charles Green. The petitioner had been arrested by the New London police on the charge of possession of marijuana on January 18, 1991. Robert Bell, a bounty hunter who knew the petitioner, arranged for a bail bondsman, Rick Brown, to come to the New London police department and post the petitioner’s bond for this matter. After being released, the petitioner and . . . Bell drove off. It was . . . Bell’s intention to find out what the petitioner might know about the shooting of . . . Green in order to prevent further acts of violence in the New London area. . . . Bell drove around with the petitioner for a while [and] purchased some food and sundries for him in Groton. When . . . Bell asked the petitioner if he knew who had shot the decedent . . . Bell was surprised when the petitioner confessed that he had done so. . . . Bell convinced the petitioner that he needed to turn himself in to the New London police, but before doing so, the petitioner wanted to go see his mother and tell her what he had done. . . . Bell and the petitioner then drove to the petitioner’s mother’s house where the petitioner proceeded to ingest some illegal drugs and then told his mother about the shooting. . . . Thereafter . . . Bell took the petitioner to the New London police department where he gave a detailed statement regarding the murder and was subsequently arrested for the crime.”

The court also stated in its decision: “The petitioner [subsequently] was the defendant in two criminal matters in the judicial district of New London ... in which he was charged with murder in violation of General Statutes § 53a-54a and other offenses. . . . The petitioner was represented by attorney Richard Perry, a private attorney who had been appointed by the court as a special public defender to represent him in this case. . . . During the course of his representation . , . Perry, personally and through the good offices of the public defender’s investigator . . . Arthur Brautigam, thoroughly investigated the facts (including the version of events told by the petitioner) and became convinced that the state had a strong body of evidence arrayed against the petitioner. . . . Perry’s professional opinion was that the petitioner would, in all likelihood, be convicted and was quite likely to receive a lengthy sentence if the case were to be tried. Notwithstanding . . . Perry made all appropriate preparations for trial. . . .

“Based upon the charges, the petitioner’s potential exposure for incarceration was substantial and potentially for the remainder of his life. . . . The petitioner . . . ultimately elected to accept the offer of a pretrial bargain in which the petitioner would plead guilty to the charge of murder in exchange for a sentence of thirty-five years with a right to argue for a lower sentence. The remaining charges, were all nolled by the state. . . . Thereafter, on September 27, 1991, the court, Stanley, J., thoroughly canvassed the petitioner and found his pleas to be knowingly and voluntarily made with the assistance of competent counsel. The court thereafter accepted the pleas and entered a finding of guilty as to the count of murder. . . . Sentencing was set for November 6, 1991. . . .

“On October 9, 1991, the petitioner, who had been held at the Brooklyn Correctional Center awaiting sentencing, escaped from the custody of the commissioner of correction. He remained at large until 1997, when he was apprehended in New York City and ultimately returned to Connecticut. ... On November 6, 1991, the court, Stanley, J., proceeded to sentence the petitioner, in absentia, to a thirty-five-year period of incarceration. . . . Perry did not . . . argue for a lesser sentence.”

Approximately sixteen years later, the petitioner filed a fourth amended petition for a writ of habeas corpus that alleged, inter alia, ineffective assistance of counsel and a due process violation. A habeas trial followed, at the conclusion of which the court rejected the petitioner’s claims. In so doing, the court “specifically” found that “the petitioner is lacking in credibility.” The court thereafter granted the petition for certification to appeal to this court.

I

The petitioner first claims that the court improperly concluded that he failed to sustain his burden of proof in demonstrating ineffective assistance of counsel. We do not agree.

Our standard of review of the petitioner’s claim is well established. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Because a defendant often relies heavily on counsel’s independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction. . . . Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it. . . .

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland's prejudice prong. ... To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ....

“To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, supra, 474 U.S. 59 ... . Reasonable probability does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra, 466 U.S. 693-94 .... The Hill court noted that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Hill v. Lockhart, supra, 59 ... . A reviewing court can find against a petitioner on either ground, whichever is easier.” (Citation omitted; internal quotation marks omitted.) Ricks v. Commissioner of Correction, 98 Conn. App. 497, 502-504, 909 A.2d 567 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007).

The petitioner’s allegation of ineffective assistance centers on Perry’s alleged failure to investigate the case adequately. The petitioner claims that had Perry investigated the case adequately, he would have uncovered information that would have led to the suppression of his confessions to Bell and the police, as well as evidence that someone else perpetrated the murder of Green.

We begin our consideration of the petitioner’s contention by noting certain evidence that was introduced at the habeas trial regarding Perry’s investigation of the case. Perry testified that, as sixteen years had passed since his representation of the petitioner, his file and notes on the case no longer existed and his recollection of certain events had faded. At the same time, Perry noted his general practice prior to entering into a plea agreement of investigating all aspects of the state’s case, including any potentially exculpatory witnesses. Perry testified that he availed himself of the state’s “open file policy” and reviewed the entire file, including police reports and witness statements contained therein. Perry also reviewed the petitioner’s written confession to the police and the audiotape of his interview with the police. Perry further spoke with family members of the petitioner, including his mother. He reviewed her written statement and that of her husband, Reginald Thornton, indicating that the petitioner had confessed to the murder of Green. Perry testified that he considered and relied on those statements in making decisions affecting his representation of the petitioner. Perry also testified that his review of Bell’s statement to the police that the petitioner had confessed to the murder similarly informed his representation of the petitioner.

In addition, Perry asked Brautigam, a senior investigator in the New London public defender’s office, to “interview prospective witnesses, to talk to [the petitioner] about potential defenses . . . and to generally investigate the case.” Brautigam testified at the habeas trial that he had reviewed the entire state’s file, that he had met with the petitioner to develop information and that he had attempted to interview prospective witnesses. In response to the question from the petitioner’s counsel as to why an investigator would not file a report in a given case, Brautigam testified that when “all the information . . . found out didn’t help the client, you wouldn’t file a report.” Brautigam did not file a written report in the petitioner’s case.

On appeal, the petitioner first posits that his January 18,1991 arrest for possession of marijuana lacked probable cause and was pretextual. The petitioner failed, however, to present credible evidence in support of that argument. The claim is predicated almost entirely on the testimony of the petitioner, which presents two distinct problems. First, as we previously noted, the court discounted the petitioner’s testimony, finding him lacking in credibility. It is axiomatic that the habeas court, “in its role as finder of fact, was the sole arbiter of the credibility of the witnesses and the weight to afford their testimony. . . . This court does not second-guess findings related to the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) Eastwood v. Commissioner of Correction, 114 Conn. App. 471, 484, 969 A.2d 860, cert, denied, 292 Conn. 918, 973 A.2d 1275 (2009). Second, by all accounts, the petitioner refused to cooperate with Perry in 1991. He declined to speak with Perry and to respond to Perry’s questions concerning the events leading to his arrest. Our consideration of the adequacy of Perry’s investigation is informed by that glaring fact.

Furthermore, no police reports or court records concerning the January 18, 1991 arrest were presented to the court. Indeed, the only evidence in the record before us concerning the arrest is the testimony of Detective Frank Jarvis of the New London police department. Jarvis testified that on January 18, 1991, he proceeded to 73 Colman Street to arrest Lamont Waites on a violation of probation charge. Upon arriving, Waites invited Jarvis into the residence, and Jarvis detected the odor of marijuana and noticed that drug in plain view. As a result, Jarvis testified that “other people in the house were arrested for possession of marijuana,” including the petitioner. From those scant details, the petitioner speculates that his arrest “was most likely contrived and pretextual.” To prevail on a petition for a writ of habeas corpus, mere conjecture does not suffice. See Ostolaza v. Warden, 26 Conn. App. 758, 765, 603 A.2d 768 (petitioner’s burden not met by speculation but by demonstrable realities), cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). Because the petitioner has failed to present an evidentiary basis for the court to conclude that his January 18, 1991 arrest was either illegal or pretextual, he cannot demonstrate that Perry’s failure to investigate and to pursue such a claim constituted deficient performance.

The petitioner next claims that Perry failed to investigate adequately the possible existence of an agency relationship between Bell and the New London police department. On the evidence presented, the court found that claim untenable. The court heard testimony from Jarvis, who directly refuted the agency allegation, stating that he neither contacted Bell nor had anything to do with Bell’s posting the petitioner’s bond:

“[The Prosecutor]: Detective Jarvis, on January 21, 1991, did you have anything to do with selecting Bell or making arrangements with Bell to bond out [the petitioner]?

“[The Witness]: No, sir, I did not.

“[The Prosecutor]: And before Bell left the police station with [the petitioner], did you have a conversation with him?

“[The Witness]: Yes, sir.

“[The Prosecutor]: Did he convey to you that he believed [the petitioner] might have information about the shooting?

“[The Witness]: Yes, sir.

“[The Prosecutor]: At that point, had suspicion focused on [the petitioner], or some other suspect, as being the likely shooter?

“[The Witness]: At that point it was still under investigation.

“[The Prosecutor]: And when you had that conversation with Bell, and he indicated that he thought [the petitioner] might have information, what, if anything, did you tell Bell?

“[The Witness]: Regarding that conversation, that I wanted to make sure that he understood we had no responsibility or involvement with bailing out [the petitioner]. And the fact that—because then that would make it look like he was our agent, so we didn’t want any involvement in that. And I’m very—very much a stickler on the fact that I don’t allow people to be my agents because it jeopardizes the investigation.

“[The Prosecutor]: Did you suggest, or in any way encourage Bell to question [the petitioner] about the shooting of Charles Green?

“[The Witness]: No, sir. Whenever anybody is going out on bond, I don’t want anything to do with that. That’s a decision he wants to make, he wants to take him out, he can do whatever he wants to do. I, as a law enforcement officer, have nothing to do with that.”

In addition, Bell testified at the habeas proceeding. In its memorandum of decision, the court credited his testimony. Bell testified that he had a relationship with Green and, thus, a personal interest in ascertaining the identity of his killer. Bell further testified that upon his arrival at the police station, he offered to speak with the petitioner in an attempt to obtain information; the police declined that proffer. Bell testified that it was his idea to post the petitioner’s bond in an attempt to obtain information on Green’s shooting and that he acted on his own initiative. Bell explained that the police discouraged his efforts, noting that “if I talked to [the petitioner], I would have to then become an agent of the police department, which would put this in a whole different technicality legally-wise, and [the New London police] didn’t find that to be feasible.” Furthermore, although attorney Gary A. Mastronardi, testifying as an expert witness for the petitioner, opined that “from what I have seen, there [was] adequate evidence in the record from which [Perry] could have argued the existence of an agency relationship,” Mastronardi on multiple occasions acknowledged that his review of the record was incomplete and conceded that the record indicated that the New London police informed Bell that he “can’t be [their] agent.”

The gist of the petitioner’s claim is that had Perry pursued an allegation that Bell was an agent of the police, he would have discovered information leading to the suppression of the petitioner’s confession to Bell, as well as his subsequent confessions to his mother, to Thornton and to the police. On the evidence adduced at trial, we share the court’s disagreement with that hypothesis. As with his prior claim, the petitioner has failed to remove his contention from the realm of speculation and conjecture, which “have no place in appellate review.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). As a result, we cannot say that Perry’s representation of the petitioner was deficient in failing to pursue that claim.

The petitioner also maintains that Perry failed to investigate William Harris adequately, an alleged eyewitness to Green’s murder. At trial, the transcript of an interview conducted by Jarvis with Harris on July 12, 1991, was introduced into evidence. At the time of that interview, Harris was incarcerated at the Montville correctional center, as was the petitioner. Harris stated in the interview that although the petitioner was present at the shooting of Green, a man referred to as “K” pulled the trigger. On appeal, the petitioner maintains that Peny failed to investigate this potentially exculpatory evidence adequately.

To the contrary, Perry testified at the habeas trial that he reviewed that interview. Perry further explained that he had instructed Brautigam to “check out all witnesses.” In response to the question of whether Brautigam “checked out” Harris, Perry testified, “I know Mr. Brautigam very well. I’m sure he did.” Perry explained that he discounted Harris’ allegation “because we didn’t believe a word that Harris said. . . . We felt that Harris was a liar.” Perry testified that after consulting with Brautigam, he reached the determination that Harris was not credible. Moreover, the petitioner acknowledged that when Perry had asked him about any information that “would point the finger at someone else,” he was “irate” and “angry” and refused to cooperate with Perry. Finally, Perry testified that in making decisions affecting his representation of the petitioner, he relied on the fact that the petitioner had confessed to murdering Green to Bell, to his mother, to Thornton and to the New London police. Given that evidence, we agree with the court that Perry adequately investigated the petitioner’s case. Accordingly, the petitioner’s ineffective assistance of counsel claim fails.

II

The petitioner also presents a due process claim. Specifically, he contends that the trial court violated his right to due process by imposing a thirty-five year sentence on the crime of murder when, he alleges, he had pleaded guilty to the crime of manslaughter in the first degree in violation of General Statutes § 53a-55. We conclude that the claim is without merit.

The following additional facts aid our consideration of the petitioner’s claim. On January 12,1999, then chief court administrator Robert C. Leuba, in accordance with General Statutes § 51-36 (b), ordered the destruction of “the official records of the court reporters taken injudicial proceedings of the Superior Court more than seven years prior to February 1, 1999, and which are in the custody of the clerks of the court or their designee, including those stored at the records center.” Included among those records was the transcript of the petitioner’s September 27, 1991 plea hearing.

Other than his testimony, which the court did not credit, the petitioner presented no evidence whatsoever to support his claim. The court was presented with ample evidence, which it found allowed “for the effective reconstruction of the events of [the] plea canvass.” Perry testified that the petitioner had pleaded guilty to the charge of murder. In addition, attorney John Gravalec-Pannone testified at the habeas trial. Gravalec-Pannone represented the state in its prosecution of the petitioner. As to the precise nature of the plea, Gravalec-Pannone testified as follows:

“ [The Prosecutor]: With regard to the plea recommendation, as part of the agreement, was there a specific charge [the petitioner] was to plead to pursuant to the agreement?

“[The Witness]: It was murder.

“[The Prosecutor]: And was there any discussion about a lesser charge than murder?

“[The Witness]: There was never any discussion. The discussions, as I recall them, between myself, Perry and Judge Stanley, and given the fact [that the petitioner] had confessed to his mother and stepfather, and given a written confession, was basically the number of years on a murder charge. As we normally do, I talked to the family of Green. I had discussed the matter with the New London police . . . and I felt a thirty-five year sentence with a right to argue was appropriate and that’s what I recommended. Judge Stanley felt it was appropriate, and he would listen to Perry on sentencing day. We’d argue our respective positions as to whether he would give a lesser sentence.

“[The Prosecutor]: At any point did you consider or discuss with Perry the possibility of a plea to a lesser charge of manslaughter?

“[The Witness]: The answer is no because I felt the state had a strong case. . . . [Q]uite frankly, with what I thought was a fairly strong case I didn’t consider manslaughter at all. It was an execution type murder based on what I previously testified to as to the confessions that had been obtained; the fact [that] Judge Leuba denied the motion to suppress, I felt confident [that] if we had gone to trial in front of Judge Leuba, we would have prevailed and [the petitioner] would have gotten a much longer sentence than that.”

In addition, a certified copy of the petitioner’s docket sheet was introduced into evidence. On the “sentence-judgment” section of that docket sheet, the charge of murder in violation of § 53a-54a is indicated. The petitioner introduced into evidence the presentence investigation report, which, too, reflected that the petitioner pleaded guilty to the charge of murder. The petitioner also introduced into evidence the November 6, 2001 sentencing transcript. That transcript indicates that the petitioner “had entered a guilty plea to the charge of murder.”

Given the paucity of evidence to support the petitioner’s claim that he had pleaded guilty to a charge of manslaughter and the aforementioned evidence to the contrary, we conclude that the court properly rejected the claim. The unavailability of the plea hearing transcript in this case did not violate the petitioner’s right to due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       The fourth amended petition for a writ of habeas corpus also contained an allegation of prosecutorial impropriety. In its memorandum of decision, the court deemed that claim abandoned, a conclusion with which the petiUoner does not quarrel.

       The petitioner testified that he refused to communicate with Perry because he was “ambivalent” and “very upset” at the time. Although he testified that he “was very young” and “didn’t know who to trust,” the petitioner further testified that he relied on the assistance of a “jailhouse lawyer.”

       The court did not acknowledge or credit Mastronardi’s testimony in its memorandum of decision.

       Harris did not testify at the habeas trial.

       To the extent that the petitioner suggests that § 51-36 (b) establishes a constitutional right to the maintenance of court records, he has provided no authority or reasoned analysis for that proposition. As this court frequently has observed, “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Citation omitted; internal quotation marks omitted.) Turner v. American Car Rental, Inc., 92 Conn. App. 123, 130-31, 884 A.2d 7 (2005); see also Harris v. Commissioner of Correction, 107 Conn. App. 833, 843 n.10, 947 A.2d 7 (“cursory treatment without substantive analysis or legal citation does not constitute adequate briefing”), cert, denied, 288 Conn. 908, 953 A.2d 652 (2008). Accordingly, we decline to review that constitutional contention.

       We note that despite his present allegation, the petitioner in 2000 filed a pro se brief with this court in which he averred that he had pleaded guilty to the charge of murder.


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. CALVIN KING
    (AC 30419)
    Flynn, C. X, and Robinson and West, Js.

      Argued May 28
    officially released August 11, 2009

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, Edward R. Narus, senior assistant state’s attorney, and Thomas R. Garcia, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Calvin King, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and carrying apistol or revolver without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that (1) the evidence was not sufficient to sustain his conviction of conspiracy to commit murder and (2) the court improperly instructed the jury on issues of credibility. We affirm the judgment of the trial court.

The following facts, as reasonably could have been found by the jury, are relevant to our resolution of the issues on appeal. On December 28, 2002, very late in the evening, the defendant, then age fifteen, and his nephew, Rondell Bonner, arrived at the apartment of Annibell Trimmier, asking to use her telephone. Trimmier lived with her son, daughter and grandson in an apartment at 37 Cabot Street in Hartford. The defendant and Bonner frequently were at Trimmier’s apartment, and Trimmier considered these boys or young men to be like family, her nephews; they even called Trimmier “auntie.” While the defendant and Bonner were talking on the telephone, Trimmier was in her bedroom. After a while, she went into the living room, where the defendant and Bonner then were sitting on the couch. Trimmier saw two semiautomatic handguns also on the couch, one black and one silver. Immediately, she told the defendant and Bonner that they had to leave because they knew that she did not allow guns in her home. As they left the apartment, the defendant picked up the silver handgun and Bonner picked up the black one, each securing a handgun in his waistband, and they both apologized to Trimmier for bringing the handguns into her home. Trimmier soon heard the defendant and Bonner talking with some girls in the hallway outside of her apartment.

After the defendant and Bonner left Trimmier’s apartment, they met Brittany Simpson and three of her friends, and they all talked in the hallway of the apartment building for a while. When they left the building and went outside, Bonner asked the girls to go to a nearby gasoline station to purchase a cigar for him. The girls agreed and began walking down Cabot Street. From inside her apartment, Trimmier heard Bonner say, “that’s my boy,” as he and the defendant stepped away from the apartment building. The girls saw a white male drive his vehicle in front of 37 Cabot Street, where both the defendant and Bonner approached the vehicle to sell drugs to the occupant, Bonner on the driver’s side and the defendant toward the back of the vehicle, but very close by Bonner’s right side. Both the defendant and Bonner were known drag sellers. Simpson then heard an argument between Bonner and the man in the vehicle, and she heard Bonner yell, “he’s trying to play me,” as the man in the vehicle started to drive away. Simpson assumed that the man was attempting to leave without paying Bonner for drags. She then heard gunfire, and she saw Bonner holding and firing a black handgun, which was pointed at the man in the vehicle. From inside of her apartment Trimmier also heard loud gunfire, which sounded like fireworks to her. Simpson could not see if the defendant had a weapon from where she stood.

As the man in the vehicle began to drive away, he was hit by several bullets, and his vehicle came to a stop on the sidewalk, near a fence, a short distance down the road. The defendant and Bonner ran away. As they ran, each was seen holding something under his coat. Bonner dropped a bag of crack cocaine as he ran from the murder scene, which he later asked Trimmier to try to find for him. Bonner telephoned Trimmier several times shortly after the murder, attempting to find out what was happening outside of Trimmier’s apartment, and she provided updates to him. Bonner told Trimmier all about the shooting, to which she responded that he would “hang” for it.

Sergeant William Mooney of the Hartford police deparment arrived at the scene after someone reported that gunshots had been fired on Cabot Street. When Mooney approached the vehicle on the sidewalk, he observed several bullet holes in the vehicle, and he saw a man slumped in the driver’s seat, not moving. Mooney attempted to find a pulse by holding the man’s wrist, but the man was nonresponsive. The man in the vehicle had been hit by six bullets and was dead. He later was identified as Scott P. Houle. The police discovered a bag of crack cocaine near the murder scene and sixteen spent shell casings, seven of which had been fired from a single nine millimeter semiautomatic Glock pistol, and nine of which had been fired from a different nine millimeter pistol. One of the bullet fragments that was recovered, which had not been fired from the Glock pistol, was consistent with having been fired from a nine millimeter semiautomatic Lorcin firearm. Lorcin makes a silver, chrome colored nine millimeter pistol.

Less than three months after the murder, the defendant sold the Glock pistol to Tyree Downer. Subsequently, the police recovered this weapon, and they determined that it was the pistol that had fired seven of the shell casings discovered at the murder scene. The other weapon never was recovered. However, the defendant, while being held on charges unrelated to the present case, told another inmate, whom he and Bonner had known for at least five years, about the murder of Houle. He explained to this inmate that he had gotten rid of the pistol that he had used during the shooting and that he had sold the Glock pistol to Downer. He also told this inmate that after Bonner started firing at the vehicle, he fired, too.

On June 9, 2004, the defendant was arrested and charged with the murder of Houle. He was charged in a three count information with murder, conspiracy to commit murder and carrying a pistol or revolver without a permit. After a jury trial, the defendant was convicted on all counts, and he received a total effective sentence of fifty years imprisonment, execution suspended after thirty-five years, with five years probation. This appeal followed.

I

The defendant first claims that there was insufficient evidence that he had entered into a conspiracy to commit murder. He argues that the evidence demonstrates that, especially in light of his youth and inexperience, his actions were indicative of a spontaneous response rather than a concerted effort. We do not agree.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [thirteenth] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Davis, 68 Conn. App. 794, 798, 793 A.2d 1151, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

“To establish the crime of conspiracy under § 53a-48 ... it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 657-58, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

Because the defendant was convicted of conspiracy to commit murder, we must consider the essential elements of the crime of conspiracy. See State v. Green, 261 Conn. 653, 669, 804 A.2d 810 (2002). “To establish the crime of conspiracy [to commit murder . . . the state must show] that an agreement was made between two or more persons to engage in conduct constituting [the crime of murder] and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . While the state must prove an agreement [to commit murder], the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to imite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts. . . . Further, [conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.” (Internal quotation marks omitted.) Id.

The record reflects the following relevant evidence. Bonner and the defendant were known drug sellers. They each had handguns when they left Trimmier’s apartment very late on the night of December 28, 2002. Bonner’s handgun was a black semiautomatic Glock, and the defendant’s handgun was a semiautomatic silver pistol. As they left Trimmier’s apartment, Bonner and the defendant each hid his own gun in the waistband of his pants. When Bonner approached Houle’s vehicle to make a drug sale, and Houle attempted to drive off without paying for the drugs, Bonner immediately opened fire on the vehicle before Houle could get away. The defendant opened fire as well. Houle was killed, and Bonner and the defendant ran from the scene.

Although the defendant argues that there is no evidence to support a conspiracy theory, we conclude that the inferences reasonably drawn from the evidence outlined previously support the jury’s finding of a conspiracy. To prove a conspiracy to commit murder, the state had to show that the defendant and Bonner intended to commit minder and that, with the intent to agree, an agreement was made between the defendant and Bonner to commit the crime of murder and that the agreement was followed by an overt act in furtherance of the conspiracy by either one of the conspirators. See State v. Booth, supra, 250 Conn. 657-58. In this case, it certainly would have been reasonable for the jury to have concluded that Bonner and the defendant were in the business of selling illegal drugs, that Bonner identified Houle as his customer by the use of the words, “that’s my boy,” as he approached Houle’s vehicle to make an illegal drug sale, that, despite the fact that it was Bonner’s customer, the defendant accompanied Bonner to Houle’s vehicle, that both Bonner and the defendant each carried a handgun in the event that someone tried to leave without paying for the drugs that were being sold and that they had agreed to protect and support each other with the use of those handguns when necessary. When Houle drove up, Bonner went to make the drug sale, and the defendant stood very close by Bonner, just behind him and to his right. The jury reasonably could have found that the defendant stood there as backup. Once Houle attempted to drive away without paying Bonner, Bonner opened fire. The defendant, in turn, also opened fire, firing nine rounds to Bonner’s seven rounds.

Although there may have been no direct evidence that Bonner and the defendant specifically had discussed and agreed that if Houle tried to drive off without paying they both would open fire, it would have been reasonable for the jury to have concluded that there existed an agreement between Bonner and the defendant that each would back up the other and that they would kill anyone who tried to steal drugs from them, and, in furtherance of this agreement, each of them carried a concealed semiautomatic handgun. On the basis of these reasonable inferences, we conclude that there was sufficient evidence for the jury to have found the defendant guilty of conspiracy to commit murder.

II

The defendant next claims that one particular sentence in the court’s instruction to the jury on credibility was improper and violated his rights under the federal constitution and the Connecticut constitution. Specifically, he argues: “The instruction that in deciding what testimony to believe, ‘you should harmonize the evidence as far as it can reasonably be done,’ was misleading and harmful in this case, where all of the witnesses but one were called by the state and where raising a reasonable doubt depended mostly on defense counsel’s efforts by cross-examination to show conflicts, ambiguities, incongruities and other testimonial shortcomings.” This claim was unpreserved at trial, and the defendant requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. We conclude that this claim is not of constitutional magnitude, and we further conclude that the instructions did not amount to plain error.

A defendant may prevail on an unpreserved claim of constitutional error if he meets all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

Although the record is adequate for review in the present case, we conclude that the claim is not of constitutional magnitude. See State v. Dash, 242 Conn. 143, 152, 698 A.2d 297 (1997) (“claimed instructional errors regarding general principles of credibility of witnesses are not constitutional in nature”), citing State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991); see also State v. Morant, 242 Conn. 666, 686, 701 A.2d 1 (1997) (no review of claimed instructional errors regarding general principles of credibility of witnesses under either state or federal constitution because they are not constitutional in nature). Accordingly, we decline review under Golding.

The defendant also seeks to prevail under the plain error doctrine. We conclude, however, that there was no plain error in the court’s instructions.

The plain error doctrine has been codified in Practice Book § 60-5, which provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines . . . that the decision is . . . erroneous in law. . . .” The plain error doctrine “is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that [reviewing courts invoke] in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” State v. Cobb, 251 Conn. 285, 343 n.34, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). The plain error doctrine “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Citations omitted; internal quotation marks omitted.) State v. Toccaline, 258 Conn. 542, 552-53, 783 A.2d 450 (2001).

After reviewing the court’s instructions as a whole; see State v. Davis, 261 Conn. 553, 564, 804 A.2d 781 (2002) (jury instructions must be viewed in entirety); we perceive no impropriety that would result in manifest injustice. Accordingly, we are not presented with an “extraordinary [situation] . . . that . . . affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Toccaline, supra, 258 Conn. 552. Viewed in their entirety, the court’s instructions do not rise to the extraordinary level required for reversal under the plain error doctrine.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    DAVID NEAL SMITH v. COMMISSIONER OF CORRECTION
    (AC 29387)
    Flynn, C. J., and Gruendel and Harper, Js.
    Argued May 19
    officially released August 11, 2009

      Frank C. Bartlett, Jr., special public defender, for the appellant (petitioner).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Brenda Hans, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, David Neal Smith, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal and that it improperly rejected his claim that his trial counsel had provided ineffective assistance. We disagree and dismiss the petitioner’s appeal.

In State v. Smith, 69 Conn. App. 167, 796 A.2d 575, cert. denied, 260 Conn. 930, 798 A.2d 973 (2002), we upheld the petitioner’s conviction of two counts of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (1), one count of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a (a) and one count of being a persistent dangerous felony offender pursuant to General Statutes (Rev. to 1995) § 53a-40. On August 24, 2006, the petitioner filed a second amended petition for a writ of habeas corpus, alleging that his trial counsel had rendered ineffective assistance. Following a habeas trial, the court rejected the petitioner’s ineffective assistance of counsel claim and dismissed the petition for a writ of habeas corpus. Subsequently, the court also denied the petition for certification to appeal. This appeal followed.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Bloomfield v. Commissioner of Correction, 111 Conn. App. 752, 756, 960 A.2d 1093 (2008), cert. denied, 290 Conn. 912, 964 A.2d 547 (2009).

“We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Parrott v. Commissioner of Correction, 107 Conn. App. 234, 236, 944 A.2d 437, cert. denied, 288 Conn. 912, 954 A.2d 184 (2008).

The petitioner claims that the court improperly denied his petition for certification to appeal following its rejection of his claim that his trial counsel had been ineffective in two ways. First, he claimed counsel was ineffective for not exercising a peremptory challenge to a specific juror, and, second, he claimed that counsel was ineffective for not objecting to testimony that allegedly went beyond permissible constancy of accusation testimony. We will consider each of these allegations in turn.

We first address the petitioner’s contention that the court improperly rejected his claim that his trial counsel had rendered ineffective assistance because he had not exercised a peremptory challenge to a specific juror who had admitted that she lived in the petitioner’s neighborhood and was familiar with him. The petitioner asserts that pursuant to State v. Jurado, 109 Conn. App. 628, 952 A.2d 812, cert. denied, 289 Conn. 937, 958 A.2d 1246 (2008), prejudice must be presumed “[w]here a potentially biased juror is allowed to sit on a jury . . . .” We conclude that counsel’s performance was not deficient and that this is dispositive of the petitioner’s claim.

During jury selection, a potential juror, R, explained to the court and counsel, outside of the presence of other potential jurors, that she lived in the petitioner’s neighborhood and that she had heard rumors about the petitioner. She did state, however, that she could keep an open mind about the case. After she left the courtroom, defense counsel challenged her for cause. The prosecutor said that she had no position and would need further inquiry before she would feel comfortable taking a position. Accordingly, the court stated that it would defer its ruling and allow further inquiry during voir dire. Later that day, R was subjected to individual voir dire, which involved, in part, the followed relevant colloquy:

“The Court: . . . Would you mind telling us a little bit of what you have heard about [the petitioner]?

“[The Juror]: Not at all. He does wonderful work with trees, yard work and cutting trees and things like that, and I have heard good things about the work he has done for neighbors and, I think, even for my husband.

“The Court: Okay. So, he may have done work on your property or your husband’s other property or business?

“[The Juror]: I am trying to remember. Yeah, we have property across the street that we work there.

“The Court: Okay.

“[The Juror]: And as far as bad things go, only about some drunkenness.

“The Court: Okay. And drunkenness in the neighborhood or in town or in a bar?

“[The Juror]: I heard things from neighbors, like, that sometimes he would come home loaded and his wife would not let him in the house and so he would sleep in the truck.

“The Court: Okay. And anything else that you heard negative about him?

“[The Juror]: Not really. . . .

“The Court: . . . But the fact that you have heard rumors that [the petitioner] from time to time may have come home, as you said, loaded, and also heard that maybe from time to time his wife would not let him in the house and he slept in the truck, would that in any way make it difficult for you to be a fair and impartial juror in this case?

“[The Juror]: I don’t think so. My husband has come home loaded once in a while, and I wish I had left him locked out.”

The court then asked R if she could keep an open mind even if there was evidence about the petitioner’s drinking and whether she would be predisposed to believe certain things. R responded: “I think I could keep an open mind. I am sure I could. I do not believe that things that I hear through neighbors and stuff are true. I always would rather see something myself. I have never seen [the petitioner] drunk . . . [and I] have only known him as a good neighbor.”

After the court concluded its questioning of R, the state indicated that it had no preliminary questions. Defense counsel then asked R whether she could refrain from telling other jurors about the rumors she had heard and whether those rumors would factor into her decision in the case. R responded: “No. Like I said, I do not believe things that I hear. I only believe things that I see firsthand, and I have never seen [the petitioner] drunk and only know him in another light.” The prosecutor then questioned R, asking several questions, including questions about her ability to keep things confidential, her ability to make up her own mind, her understanding of the state’s burden of proof and the presumption of innocence and whether she would hold it against the petitioner if he did not testify. Following that questioning, the court asked the prosecutor and defense counsel, individually, whether they would accept R as a juror, to which each of them responded, “accepted.”

During the petitioner’s habeas trial, his trial counsel was called to testify. This testimony revealed that counsel initially had been concerned that R would be predisposed to certain negative beliefs about the petitioner but that, after voir dire, the petitioner indicated that he wanted to keep R on the jury and counsel thought it would be good strategy. The petitioner also testified at the habeas trial, and he offered nothing that contradicted his trial attorney’s testimony in this regard.

Following the habeas trial, the court concluded that trial counsel had not been ineffective when he did not exercise one of his two remaining peremptory challenges on this juror and, instead, accepted R as juror number five in the petitioner’s case. The court concluded, and we agree, that this was a matter of trial strategy, a strategy that the petitioner had requested after hearing what R had to say during voir dire. Because we agree that counsel’s performance was not deficient, we do not reach the prejudice prong of the Strickland test. Our review of the record confirms the soundness of the court’s decision, and, accordingly, we conclude that the court did not abuse its discretion.

The petitioner next argues that his trial counsel was ineffective because he failed to object to testimony from two state police troopers, Jean Callaghan and Jennifer LaFlam, which allegedly “exceeded the bounds of permissible constancy of accusation testimony . . . .” We conclude that the petitioner has failed to prove that counsel’s performance was deficient.

Both Callaghan and LaFlam testified regarding the content of their separate conversations with the victim concerning the crimes perpetrated against her by the petitioner, including details of the sexual assault. The habeas court specifically found that “the testimony may well have gone beyond the confines of Troupe.” See State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996) (en banc) (holding that constancy of accusation witness may testify as to fact and timing of victim’s complaint but not as to details of complaint, and, if more details needed, testimony limited to details that associate victim’s complaint with pending charge, such as time and place of attack or identity of alleged attacker). Nevertheless, the court found that counsel’s decision not to object to this testimony was trial strategy made on the basis of the petitioner’s identity defense. The court found that there was no deficient performance because counsel “quite reasonably [could] have concluded that objecting to a state police trooper’s testimony about a victim’s description of a rape, even if technically hearsay, would not benefit the petitioner and could only worsen the petitioner’s cause with the jury.” We agree with the habeas court.

The victim was the first witness to testify at the petitioner’s trial, and she described the crimes perpetrated against her in detail. She also testified that she had relayed these details to several people, including Callaghan and LaFlam. The victim was extensively cross-examined by defense counsel as well. The state also presented, among other evidence, the testimony of Callaghan and LaFlam, both of whom offered explicit testimony as to what the victim had told them about the assault and kidnapping. During closing arguments, defense counsel focused on the inconsistencies between the victim’s testimony and the testimony of Callaghan, LaFlam and medical personnel, who had treated the victim following the attack.

During the habeas trial, defense counsel testified that the petitioner had told him that he did not commit these crimes and that it must have been some third person who looked like him and who drove a similar vehicle. Counsel also testified that the petitioner refused to pursue a consent defense. Accordingly, the defense set forth was one of identity. However, the state had a strong case in that there was evidence that DNA analysis had confirmed that sperm found inside the victim’s vagina contained genetic material that matched the DNA of the petitioner.

“[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted; internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 768-69, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008). “Competent representation is not to be equated with perfection. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. . . . [Cjounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 798-99, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004).

Our review of the record leads us to agree with the habeas court that trial counsel's decision not to object to the trooper’s testimony did not amount to deficient performance. The defense set forth by the petitioner was one of identity, and, because there existed DNA evidence that tended to prove that he recently had deposited sperm inside of the victim, the only reasonable strategy for defense counsel was to call into question the credibility of the victim and her version of the events in an attempt to raise some measure of reasonable doubt in the mind of the jurors. Credibility can be attacked by showing inconsistencies between statements made at trial and statements made to others, like Callaghan and LaFlam. Accordingly, we conclude that the habeas court properly concluded that defense counsel’s decision not to object to the testimony of Callaghan and LaFlam was an exercise of sound trial strategy made in light of the theory of defense set forth at trial.

On the basis of the foregoing analysis, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       We identify the juror by initial only to protect her legitimate privacy interests. See State v. Dorans, 261 Conn. 730, 749 n.23, 806 A.2d 1003 (2002).

       Contrary to defense counsel’s testimony, the petitioner testified during the habeas trial that, although he initially denied knowing the victim, he told his attorney at trial that he did know the victim, that they had engaged in consensual sexual intercourse on the night of the alleged attack and that they had continued in a sexual relationship even after the alleged attack. He explained that he thought he did not know her because he did not know her name. Defense counsel denied that the petitioner ever told him this, and counsel stated that he would have put forth a defense of consent had the petitioner advised him of these facts.