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Kitchens v. Commissioner of Correction

Court of Appeals of Connecticut

August 30, 2016

MARVIN KITCHENS
v.
COMMISSIONEROF CORRECTION

          Argued April 7, 2016

         Appeal from Superior Court, judicial district of Tolland, Cobb, J.

          Mary Boehlert, assigned counsel, for the appellant (petitioner).

          Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Jo Anne Sulik, supervisory assistant state’s attorney, for the appellee (respondent).

          Beach, Sheldon and Mullins, Js.

          OPINION

          SHELDON, J.

         The petitioner, Marvin Kitchens, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus, in which he challenged the conviction rendered against him after a jury trial, on charges of kidnapping in the second degree in violation of General Statutes § 53a-94 (a)[1] and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), [2] on the ground of ineffective assistance of counsel. He claims, more particularly, that the habeas court erred in ruling that his trial counsel did not render ineffective assistance by failing to request proper jury instructions on two essential elements of the charged offenses and/or failing to object or except to the trial court’s omission of such proper jury instructions from the court’s charge. First, he claims that the jury should have been instructed, pursuant to State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), that the offense of kidnapping requires proof that he intended to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit another crime against the victim. Second, he claims that the jury should have been instructed, as part of the common element of restraint required for commission of the offenses of unlawful restraint and kidnapping, that he acted with a specific intent to interfere substantially with the victim’s liberty rather than merely a general intent to engage in conduct that caused that result.

         The respondent, the Commissioner of Correction, argues that the habeas court properly concluded that the petitioner failed to establish ineffective assistance as to either challenged aspect of his trial counsel’s representation. We agree with the respondent, and thus affirm the judgment of the habeas court.

         The following facts, asset forth by our Supreme Court in its decision affirming the petitioner’s underlying criminal conviction on direct appeal, are relevant to this appeal. ‘‘On the night of April 19, 2007, the victim, Jennaha Ward, was playing cards with her godfather, Ronald Sears, at Sears’ second story apartment in the city of Hartford. While playing cards, the victim and Sears decided to eat, and Sears went out and purchased shrimp for them to fry. The victim then prepared the shrimp while Sears heated cooking oil in a cast iron skillet. While they were eating the shrimp, the [petitioner] called Sears’ cell phone looking for the victim, with whom the [petitioner] had been in a five month extramarital relationship that the victim recently had ended. The [petitioner] told the victim that he was around the corner from Sears’ apartment and asked whether she would come down and talk to him, and the victim said that she would. The victim, however, did not intend to speak to the [petitioner]. Rather, she went downstairs to lock the door to make sure that he could not get inside. When the victim reached the first floor landing, she jumped up to look out the window above the door to see whether the [petitioner] had arrived yet. As soon as she landed back on her feet, he burst through the door, grabbed her by her clothing and pulled her outside. After the [petitioner] heard a woman say that she was calling the police, he again grabbed the victim by her clothing and dragged her back inside and upstairs to Sears’ apartment.

         ‘‘Once upstairs in the apartment, the [petitioner] asked the victim why she had ended their relationship and physically blocked her from leaving the apartment when she tried to run out the door. Following the altercation that ensued between the [petitioner] and the victim, during which Sears asked them to take their dispute outside, she sustained first and second degree burns to her face after her head made contact with the skillet containing the frying oil. The [petitioner] then fled the apartment, at which time Sears called for the police and emergency assistance. The victim received treatment for her facial burns at Saint Francis Hospital and Medical Center, and the Burn Center at Bridgeport Hospital.

         ‘‘After a police investigation, the [petitioner] was arrested, and the state charged him in a five count information with assault in the first degree in violation of General Statutes § 53a-59 (a) (1), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (2) and 53a-49 (a) (2), burglary in the second degree in violation of General Statutes (Rev. to 2007) § 53a-102 (a) (1), kidnapping in the second degree in violation of § 53a-94 (a), and unlawful restraint in the first degree in violation of § 53a-95 (a). Following a jury trial and the trial court’s denial of defense counsel’s oral motion for judgment of acquittal, the jury returned a verdict of not guilty on the assault, attempted assault and burglary charges, but guilty on the kidnapping and unlawful restraint charges. The trial court then rendered judgment of conviction in accordance with the jury’s verdict and sentenced the [petitioner] to a total effective sentence of twelve years imprisonment, execution suspended after eight years, and five years probation.’’ (Footnotes omitted.) State v. Kitchens, 299 Conn. 447, 450-52, 10 A.3d 942 (2011).

         ‘‘The case was tried in late February and early March of 2008, four months prior to the July 1, 2008 release of our decision in State v. Salamon, supra, 287 Conn. 509. The trial court’s instruction on kidnapping in the second degree did not direct the jury to consider whether the restraint imposed exceeded that necessary or incidental to the underlying assault crimes.[3] Further, the defense did not file a request to charge the jury, or take an exception to the instructions as given, to that effect.’’ (Footnote altered.) Id., 453-54.

         ‘‘On February 25, 2008, the state filed a request to charge containing five suggested changes to the instructions on assault and burglary. The following day, when the trial court noted on the record that defense counsel had stated in chambers that he did not intend to file a request to charge and asked if that was still the case, counsel replied that it was. Two days later, the court held an on-the-record charge conference in which it referred to a proposed charge it previously had given to the parties. After a brief discussion with the assistant state’s attorney (prosecutor) concerning the assault instruction, the court asked defense counsel if there was anything he wanted to discuss. Counsel indicated that he would like to discuss the prosecutor’s request to charge, which the court proceeded to consider. Defense counsel agreed that the proposed language fairly stated the law and indicated that he either had no objection or preferred the standard charge. At one point, defense counsel asked that the court use less ‘pejorative’ language in its instruction on the [petitioner]’s decision not to testify, and the court agreed to do so. At the conclusion of the conference, the court asked the attorneys, ‘[a]nything else about the charge . . . ?’ Defense counsel replied, ‘[n]o, Your Honor. I don’t think so.’ After addressing certain other matters, the court advised that both attorneys should refrain from defining legal terms in their summations and should limit their arguments to the facts that would satisfy the elements of the charged crimes. Both parties agreed, with defense counsel responding, ‘[f]air enough.’

         ‘‘Several days later, the court informed the parties in an on-the-record conference that it had completed the jury instructions and that each attorney should obtain a copy for discussion at a future meeting. The prosecutor responded that he had stopped by the courthouse the previous day, had read the completed instructions and was ready to make some suggestions, none of which related to the kidnapping or unlawful restraint counts, but that he did not know if defense counsel had done the same. The court replied that, if the prosecutor had any suggestions, it wanted to hear them at that time. Reading from his copy of the instructions, the prosecutor remarked on a typographical error and suggested one other minor correction to the instruction on credibility. At the conclusion of the discussion, the court turned to defense counsel and asked if he also had been able to examine the instructions, to which counsel replied, ‘[a]ctually, Your Honor, my copy is downstairs, but I didn’t have any major revisions.’ The court then concluded: ‘All right. So then we don’t have to get together. We’re done. Okay.’ Neither party said anything further on the matter, and the court adjourned.

         ‘‘Thereafter, the parties made their closing arguments, and the court instructed the jury. The court first instructed on the element of intent under count one- first degree assault-that, ‘[a]s defined by our statute, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or to engage in such conduct.’ For each substantive offense thereafter, the court repeated the preceding instruction on intent or stated as follows: ‘You will recall the instructions on intent that I gave you, when I explained count one and apply them here also.’ Upon completion of the instructions, the prosecutor stated that he had no exceptions. Defense counsel volunteered that he also had no exceptions. Neither party made any other comments and jury deliberations followed.’’ (Footnote omitted.) Id., 463-65.

         In addition, the court defined ‘‘restrain’’ when describing the elements of kidnapping in the second degree and unlawful restraint in the first degree, as to restrict a person’s movements intentionally and ...


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