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*********************************************** 
JAMAAL COLTHERST v. COMMISSIONER

OF CORRECTION

(AC 43864)

Elgo, Cradle and Pellegrino, Js.

Syllabus

The petitioner, who had been convicted of multiple crimes, including murder,

sought a writ of habeas corpus, claiming that he received ineffective

assistance of counsel in the two criminal matters underlying his petition

and that his conviction of kidnapping in the first degree with a firearm

violated his right to due process. The first incident occurred in Hartford,

and the second incident occurred four days later, and was tried in New

Britain. Specifically, he claimed that the jury in the New Britain case

was not instructed to determine whether the victim was restrained to

an extent exceeding that which was necessary to complete the other

crimes, as required by State v. Salamon (287 Conn. 509). Thereafter,

the habeas court rendered judgment denying the habeas petition, and the

petitioner, on the granting of certification, appealed to this court. Held:

1. The petitioner could not prevail on his claims that counsel in his underlying

criminal matters rendered ineffective assistance.

a. The habeas court correctly determined that the petitioner’s trial counsel, O, in the Hartford case did not provide ineffective assistance by

failing to advise him adequately regarding his decision to testify: the

petitioner failed to meet his burden of demonstrating that O’s conduct

fell below an objective standard of reasonableness and failed to overcome

the presumption that his counsel acted competently; the court’s finding

that O met with the petitioner to discuss his case eighteen times was

supported by the petitioner’s own testimony, and, although O could not

recall how he advised the petitioner regarding whether he should testify,

O testified regarding what he would normally do with respect to advising

a criminal defendant about whether to testify, and the court found O’s

testimony to be credible; moreover, O could not have foreseen that the

petitioner would not testify truthfully, which resulted in the petitioner

opening the door to the introduction of evidence concerning the New

Britain case.

b. The habeas court correctly determined that the petitioner’s trial counsel in the New Britain case, C, did not provide ineffective assistance by

failing to adequately advise him about a plea offer to resolve that case:

the record supported the habeas court’s conclusion that the petitioner

failed to meet his burden of demonstrating that the trial court would have

accepted the plea agreement, as the petitioner presented no evidence

to that effect, and, even if this court assumed the existence of such an

agreement, the petitioner’s equivocal testimony that he ‘‘possibly’’ would

have accepted the plea offer was insufficient to meet his burden of

demonstrating a reasonable probability that, if not for C’s defective

performance, he would have accepted the plea offer.

2. The petitioner’s claim that his kidnapping conviction in the New Britain

case violated his right to due process because the jury was not instructed

to determine whether the victim was restrained to an extent exceeding

that which was necessary to complete the other crimes was unavailing:

the court correctly determined that the absence of a Salamon instruction

at the petitioner’s criminal trial constituted harmless error; the court

thoroughly addressed each of the Salamon factors as applied to the

facts of the present case and made factual findings in connection therewith, which were not clearly erroneous, as the restraint and movement

of the victim were done to facilitate the petitioner’s escape from the

robbery scene, not to accomplish the robbery itself, and, as such, they

had independent criminal significance, the court’s determination that

those factors did not favor the petitioner was supported by the record,

and, thus, the absence of a Salamon instruction could not have substantially affected or influenced the jury’s verdict.

Argued September 9—officially released November 2, 2021

Procedural History
Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district

of Tolland and tried to the court, Bhatt, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Affirmed.

Michael W. Brown, for the appellant (petitioner).

Laurie N. Feldman, deputy assistant state’s attorney,

with whom, on the brief, were Sharmese L. Wolcott

and Brian W. Preleski, state’s attorneys, and Tamara

Grasso, former senior assistant state’s attorney, for the

appellee (respondent).
Opinion

PELLEGRINO, J. The petitioner, Jamaal Coltherst,

appeals following the granting of his petition for certification to appeal from the judgment of the habeas court

denying his petition for a writ of habeas corpus. He

claims that (1) he received ineffective assistance of trial

counsel in both of the underlying criminal matters that

formed the basis for his habeas petition and (2) because

the jury in one of his underlying criminal matters was

not instructed to determine whether the victim in that

case was restrained to an extent exceeding that which

was necessary to complete other crimes, as required

by State v. Salamon, 287 Conn. 509, 949 A.2d 1092

(2008), his conviction of kidnapping in the first degree

with a firearm in that case violated his constitutional

right to due process. We disagree and affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner’s claims on

appeal. The petitioner’s habeas petition concerns his

convictions of various crimes in two underlying criminal matters. The first matter occurred in Hartford in

1999 (Hartford case), and the second matter occurred

in Wethersfield four days after the incident in Harford,

and was tried in New Britain (New Britain case). In

the Hartford case, the petitioner was convicted of nine

different offenses related to a carjacking incident,1 and,

following resentencing, he was sentenced to a total

effective sentence of eighty years of incarceration,

which was to run consecutive to the sentence imposed

in the New Britain case.

The petitioner filed a direct appeal from his conviction in the Hartford case to our Supreme Court, which

set forth the following relevant facts. On the evening

of October 15, 1999, the petitioner and a friend, Carl

Johnson, who was armed with a gun, rode mountain

bikes ‘‘to an exotic dance club known as Kahoots,

located on Main Street in East Hartford, arriving at

approximately 7:30 p.m. They parked the bicycles in

the bushes behind the club and then walked around

the parking lot to identify cars that they might want to

carjack. . . .

‘‘The [petitioner] and Johnson [left the Kahoots parking lot briefly to look elsewhere for cars to carjack but]

returned to Kahoots . . . at approximately 9 p.m. They

hid their bicycles behind the Rent-A-Wreck building

located next to the club. They saw a 1999 Toyota 4Runner parked in the Rent-A-Wreck parking lot and waited

there for the driver to return so that they could carjack

the car. While they were waiting, a black Honda Accord

pulled up behind Rent-A-Wreck. The driver, later identified as Kyle Holden (victim), exited the car and went

into Kahoots. Some time later, when the victim came

out of Kahoots and headed toward his car, the [peti-
tioner] and Johnson ran up to him. Johnson pointed

his gun at the victim’s head and demanded the keys to

the car. The [petitioner] took them. Johnson then gave

the gun to the [petitioner] and took the keys himself.

Johnson and the [petitioner] forced the victim into the

backseat of the car, where the [petitioner] joined him.

They then drove to an automatic teller machine (ATM)

located next to the Triple A Diner. The [petitioner]

took the victim’s wallet, removed his ATM card and

demanded the victim’s personal identification number.

The [petitioner then] gave the card to Johnson, who

used it to withdraw money from the ATM.

‘‘Johnson then drove to a nearby entrance ramp for

Interstate 84, where he pulled over to the side of the

road. The [petitioner] and Johnson got out of the car,

and the [petitioner] gave the gun to Johnson. Johnson

then ordered the victim to get out of the car. The victim

went to the far side of the guardrail, where he sat down.

The [petitioner] removed the victim’s belongings from

the car and then got back into the car’s passenger side

seat. At that point, the [petitioner] saw Johnson shoot

the victim at point blank range in the back of the head.

The victim died within seconds. Johnson then got back

into the car. The [petitioner] asked him why he had

shot the victim, and Johnson said that he did not want

any witnesses.’’ (Footnote omitted.) State v. Coltherst,

263 Conn. 478, 484–86, 820 A.2d 1024 (2003). Our

Supreme Court affirmed the petitioner’s judgment of

conviction in the Hartford case. See id., 483.

In the New Britain case, the petitioner was convicted

of fifteen different offenses, including kidnapping in

the first degree with a firearm in violation of General

Statutes § 53a-92a and two counts of robbery in the

first degree in violation of General Statutes § 53a-134

(a) (1) and (2).2 The petitioner was sentenced in the

New Britain case to eighty-five years of incarceration,

to run consecutive to the sentence imposed in the Hartford case.

The petitioner appealed his conviction in the New

Britain case to this court, which set forth the following

relevant facts: ‘‘On October 19, 1999, the [petitioner]

. . . Johnson and Rashad Smith were sitting in a stolen

black Honda Accord near 85 Wolcott Hill Road in Wethersfield. The trio had smoked marijuana. Sometime

after darkness fell, the victim, Michael Clarke, returned

to Camilleri and Clarke Associates, Inc., the insurance

brokerage firm located there, of which he was an owner.

He had left his motor vehicle, a black Lincoln Mark VIII

valued at approximately $28,000, in the firm’s parking

lot. After [Clarke] had been in the building for some

time, his dog began to bark, and so [Clarke] went outside. After [Clarke] left the building, he was accosted

by the [petitioner] and Johnson. The [petitioner] wore

a red sweatshirt or parka. [Clarke] was instructed to

turn over the keys to his vehicle. One of the men pointed
a gun at [Clarke], and told him to go back into the

building and to his office.

‘‘In the office, while one of the men continued to

point the gun at [Clarke], the other held [Clarke]. The

[petitioner] and Johnson took [Clarke’s] laptop computer and credit card. They threatened [Clarke] and

ordered him to provide the access code for the card so

that they could use it to obtain cash. Johnson took the

computer while the [petitioner] took the credit card.

The [petitioner] and Johnson stated that they were

going to take [Clarke] to the car, and after he protested

and resisted, he was struck twice in the face with the

gun. [Clarke] was pushed outside, continued to struggle

with the two men and broke away from them before

being forced into the car. [Clarke] started to flee and

called out for help, but was soon tackled by Johnson.

[Clarke] then struggled with the [petitioner], who took

out a .22 caliber Beretta and shot [Clarke] in the head.

The [petitioner] and Johnson fled the scene in [Clarke’s]

Lincoln while Smith drove the Honda Accord.

‘‘Oscar Rivera, a Wethersfield police officer, arrived

at the scene after being notified of the assault. He found

[Clarke] lying on the ground in the parking lot, which

was otherwise empty. At that time, [Clarke] was responsive, but had suffered visible injuries. Medical personnel

subsequently transferred [Clarke] to Hartford Hospital

for treatment. [Clarke] was hospitalized for nine to ten

days and then was transferred to a rehabilitation facility

for an additional seven weeks of therapy.’’ (Footnotes

omitted.) State v. Coltherst, 87 Conn. App. 93, 96–98,

864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d

371 (2005). This court affirmed in part3

the petitioner’s

conviction in the New Britain case. See id., 96.

Following the resolution of his direct appeals in the

Harford and New Britain cases, the petitioner filed a

petition for a writ of habeas corpus, which is the subject

of this appeal. He first filed a petition on June 10, 2015,

in a self-represented capacity but later filed an amended

petition, through counsel, on August 27, 2018. In his

amended habeas petition, the petitioner alleged nine

separate grounds for reversal of his convictions, all but

three of which were withdrawn prior to the habeas

trial. The three remaining counts alleged (1) ineffective

assistance by trial counsel in the Hartford case, (2)

ineffective assistance by trial counsel in the New Britain

case, and (3) that the petitioner’s kidnapping conviction

in the New Britain case violated the petitioner’s right

to due process. The habeas court rendered judgment

denying the habeas petition, from which the petitioner,

on the granting of certification, appealed to this court.

Additional facts will be set forth as necessary.

I

In this appeal, the petitioner raises two claims related

to the habeas court’s denial of his ineffective assistance
of counsel claims—one related to the Hartford case

and the other to the New Britain case. We address each

in turn. First, we set forth our well settled standard

of review and legal principles applicable to claims of

ineffective assistance of counsel in habeas matters.

‘‘The habeas court is afforded broad discretion in

making its factual findings, and those findings will not

be disturbed unless they are clearly erroneous. . . .

The application of the habeas court’s factual findings

to the pertinent legal standard, however, presents a

mixed question of law and fact, which is subject to

plenary review. . . . Therefore, 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.’’ (Internal quotation marks omitted.) Charles v. Commissioner of Correction, 206 Conn. App. 341, 346, A.3d (2021).

‘‘The sixth amendment to the United States constitution guarantees a criminal defendant the assistance of

counsel for his defense. . . . It is axiomatic that the

right to counsel is the right to the effective assistance

of counsel. . . . To succeed on a claim of ineffective

assistance of counsel, a habeas petitioner must satisfy

a two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984). Strickland requires that a petitioner satisfy

both a performance and a prejudice prong. To satisfy

the performance prong, a [petitioner] must demonstrate

that counsel made errors so serious that counsel was

not functioning as the counsel guaranteed . . . by the

[s]ixth [a]mendment. . . . To satisfy the prejudice

prong, a [petitioner] must demonstrate that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. . . . Although a petitioner can succeed

only if he satisfies both prongs, a reviewing court can

find against the petitioner on either ground. . . .

‘‘We . . . are mindful that [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. Because of the difficulties inherent

in making the evaluation, a court must indulge a strong

presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that

is, the [petitioner] must overcome the presumption that,

under the circumstances, the challenged action might

be considered sound trial strategy. . . . [C]ounsel is

strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment. . . . Similarly,

the United States Supreme Court has emphasized that

a reviewing court is required not simply to give [counsel] the benefit of the doubt . . . but to affirmatively
entertain the range of possible reasons . . . counsel

may have had for proceeding as [he or she] did. . . .

‘‘In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s

performance had no effect on the outcome or whether

it is possible a reasonable doubt might have been established if counsel acted differently. . . . Instead, Strickland asks whether it is reasonably likely the result

would have been different. . . . The likelihood of a

different result must be substantial, not just conceivable.’’ (Internal quotation marks omitted.) Harris v.

Commissioner of Correction, 205 Conn. App. 837, 857–

58, 257 A.3d 343 (2021).

A

The petitioner claims that the habeas court improperly determined that his trial counsel in the Hartford

case did not provide ineffective assistance by failing to

advise the petitioner adequately regarding his decision

to testify at the underlying criminal trial in the Hartford

case. We disagree.

With respect to the claim of ineffective assistance of

counsel in the Hartford case, the habeas court found

the following relevant facts: ‘‘In the Hartford case, the

petitioner was represented at all relevant times by Attorney Donald O’Brien. He met with the petitioner approximately eighteen times during which he discussed the

evidence. The defense theory at trial was that the petitioner was not involved and, instead, it was the codefendant . . . Johnson who was responsible for the crimes.

The gun was connected to . . . Johnson and the

defense sought to put the blame on Johnson’s shoulders. The petitioner, seventeen at the time of the

offenses, had given various statements to the police.

Defense counsel attempted to discredit the statements

by questioning the way in which police obtained the

statements from the petitioner and argued to the jury

that [it] should not believe the contents of the statements. Since almost twenty years have passed since

the petitioner’s underlying trial, Attorney O’Brien did

not remember many details of the trial or his communications with the petitioner. He testified credibly, however, that he would have discussed with the petitioner

his right to testify and, in doing so, would have laid out

the evidence the state presented up to that point during

the trial. If he believed the state had not proven its case

beyond a reasonable doubt, he would have encouraged

the petitioner to not testify because doing so would

give the prosecution an opportunity to vigorously crossexamine the petitioner and potentially fill in the gaps

in the state’s case. He insisted that the decision to testify

belongs to the petitioner.

‘‘The petitioner did testify in the Harford case and,

according to Attorney O’Brien, did well on direct examination. He denied making many of the statements con-
tained in his written statements given to the police.

‘One of those statements indicated that the [petitioner]

had stated to the police that, on the night of the crime, he

and Johnson parked [their] bikes in the bushes behind

Kahoots and walked around the parking lot looking for

cars that [they] might want to jack.’ . . . State v. Coltherst, supra, 263 Conn. 508. During cross-examination,

he was asked what it meant to jack a car. The petitioner

replied that he did not know because he did not jack

cars. As a result of this, the state sought to question

the petitioner about [the] carjacking that occurred in

Wethersfield four days after the Hartford incident or,

in the alternative, [to] admit a redacted version of his

statement to the police admitting to the Wethersfield

crime. After some back and forth, the state and defense

counsel agreed that the state would conduct a limited

inquiry into this area, and the court subsequently gave

a limiting instruction to the jury.

‘‘According to the petitioner, Attorney O’Brien talked

to him about testifying at the trial a few days before

his testimony and they discussed it for only a few

minutes. The petitioner testified that had Attorney

O’Brien told him that he could be cross-examined about

the Wethersfield carjacking incident, he would . . .

not have testified the way he did. At the very least,

according to the petitioner, he would have been better

prepared to testify.’’ (Footnote omitted.)

In rejecting the petitioner’s claim that Attorney

O’Brien provided ineffective assistance, the habeas

court stated: ‘‘The only surviving claim against Attorney

O’Brien is that he did not adequately advise the petitioner about testifying, nor did he adequately prepare

him to testify. The petitioner has not met his burden

of proof with regard to this claim. The petitioner’s claim

appears to be that, had Attorney O’Brien told the petitioner that he could be questioned about the Wethersfield carjacking, the petitioner would not have misled

the jury by saying that he didn’t jack cars.

‘‘The court struggles to understand how Attorney

O’Brien can be faulted for the petitioner’s decision, sua

sponte, to testify in a manner that he knew not to be

true. There is no deficient performance. Further, the

state’s evidence against the petitioner was significant.

Even assuming any deficient performance, the petitioner has not proven prejudice. Thus, this claim must

be denied.’’

The following relevant legal principles guide our analysis of this claim. ‘‘[I]t is the right of every criminal

defendant to testify on his own behalf . . . and to make

that decision after full consultation with trial counsel.’’

(Internal quotation marks omitted.) Henderson v. Commissioner of Correction, 129 Conn. App. 188, 195, 19

A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1177

(2011). ‘‘It is the responsibility of trial counsel to advise

a defendant of the defendant’s right to testify and to
ensure that the right is protected. [T]he if and when of

whether the accused will testify is primarily a matter

of trial strategy to be decided by the defendant and his

attorney. . . . The decision of whether to testify on

one’s own behalf, however, ultimately is to be made

by the criminal defendant.’’ (Citation omitted; internal

quotation marks omitted.) Victor C. v. Commissioner

of Correction, 179 Conn. App. 706, 715, 180 A.3d 969

(2018). ‘‘A defendant is entitled to decide whether to

testify in his or her own case and is further entitled to

have advice from counsel concerning that decision.

. . . Counsel’s duty to advise includes the duty to keep

the defendant informed of all developments in the case

material to the defendant’s decision to testify. . . .

Deciding whether to testify on one’s own behalf is often

among the most difficult choices a criminal defendant

must make during trial. Testifying can present a risky

and difficult ordeal for a defendant. Defense counsel

therefore must keep the defendant apprised of all material information known to counsel in order to help the

defendant in making that decision.’’ (Internal quotation

marks omitted.) Houghtaling v. Commissioner of Correction, 203 Conn. App. 246, 260–61, 248 A.3d 4 (2021).

‘‘[T]he habeas court must presume that counsel acted

competently and the burden lies with the petitioner, as

the party asserting ineffectiveness, to overcome this

presumption . . . .’’ Budziszewski v. Commissioner

of Correction, 322 Conn. 504, 517 n.2, 142 A.3d 243

(2016).

The petitioner claims that Attorney O’Brien provided

ineffective assistance because he ‘‘failed to advise [the

petitioner] about general principles surrounding the

admissibility of evidence related to the New Britain

[case] and how his answers to certain questions might

result in opening the door to more damaging evidence

being offered against him.’’ According to the petitioner,

‘‘[i]f [Attorney O’Brien] had informed the petitioner that

his testimony could expose him to the risk of having

the jury hear about the New Britain [case], it could have

changed his decision to testify completely.’’

Given that twenty years had passed between the petitioner’s criminal trial in the Hartford case and the

habeas trial, Attorney O’Brien had trouble recalling

exactly what advice he had given to the petitioner. The

habeas court, however, found that Attorney O’Brien

‘‘testified credibly . . . that he would have discussed

with the petitioner his right to testify and . . . the evidence the state presented up to that point during the

trial,’’ that, if he believed the state had not met its

burden of proof beyond a reasonable doubt, ‘‘he would

have encouraged the petitioner to not testify,’’ and that,

ultimately, ‘‘the decision to testify belong[ed] to the

petitioner.’’ As this court previously has explained,

‘‘[t]ime inevitably fogs the memory of busy attorneys.

That inevitability does not reverse the Strickland presumption of effective performance. Without evidence
establishing that counsel’s strategy arose from the

vagaries of ignorance, inattention or ineptitude . . .

Strickland’s strong presumption must stand.’’ (Internal

quotation marks omitted.) Williams v. Commissioner

of Correction, 177 Conn. App. 321, 333, 175 A.3d 565,

cert. denied, 327 Conn. 990, 175 A.3d 563 (2017); see

also Rodriquez v. Commissioner of Correction, 35

Conn. App. 527, 536–37, 646 A.2d 919 (fact that attorney

could not recall specifically informing petitioner of right

to testify did not establish that he never told petitioner

of his right to testify and was not sufficient, by itself,

to demonstrate deficient performance), cert. denied,

231 Conn. 935, 650 A.2d 172 (1994).

Our review of the record supports the habeas court’s

conclusion that the petitioner failed to meet his burden

of demonstrating deficient performance by Attorney

O’Brien. The habeas court’s finding that Attorney

O’Brien had met with the petitioner to discuss his case

eighteen times was supported by the petitioner’s own

testimony. Although Attorney O’Brien could not recall

what advice he may have given to the petitioner regarding whether the petitioner should testify, he did testify

regarding what he would normally do with respect to

advising a criminal defendant about whether to testify,

and the habeas court found his testimony to be credible.

‘‘We will not disturb a habeas court’s factual finding

that turns on its evaluation of the credibility of witnesses. See Flomo v. Commissioner of Correction, 169

Conn. App. 266, 279, 149 A.3d 185 (2016) (‘[a] reviewing

court ordinarily will afford deference to those credibility determinations made by the habeas court on the

basis of [the] firsthand observation of [a witness’] conduct, demeanor and attitude’ . . .), cert. denied, 324

Conn. 906, 152 A.3d 544 (2017).’’ Houghtaling v. Commissioner of Correction, supra, 203 Conn. App. 263.

Moreover, we agree with the habeas court that Attorney

O’Brien could not have foreseen that the petitioner

would not testify truthfully, which resulted in his opening the door to the introduction of evidence concerning

the New Britain case. The petitioner, therefore, has not

met his burden of demonstrating that Attorney O’Brien’s

conduct fell below an objective standard of reasonableness, nor has he overcome the presumption that his

counsel acted competently. See Budziszewski v. Commissioner of Correction, supra, 322 Conn. 517 n.2;

Johnson v. Commissioner of Correction, 285 Conn. 556,

576–77, 941 A.2d 248 (2008). Accordingly, the habeas

court properly denied the habeas petition with respect

to the petitioner’s claim of ineffective assistance by

Attorney O’Brien in the Hartford case.4

B

The petitioner next claims that the habeas court

improperly determined that trial counsel in the New

Britain case did not provide ineffective assistance by

failing to advise the petitioner adequately about a sev-
enty year plea offer to resolve the New Britain case.

We disagree.

With respect to the claim of ineffective assistance of

counsel in the New Britain case, the habeas court found

the following relevant facts: ‘‘The petitioner was represented in the New Britain case by Attorney Thomas

Conroy. At the time of the New Britain trial, the petitioner was already sentenced in connection with the

Hartford case. There may have been a plea offer pursuant to which the petitioner would have been sentenced

to a term of imprisonment of seventy [years of] incarceration, concurrent to his Hartford sentence, but Attorney

Conroy could not recall any of the details of the plea

negotiations. The petitioner could not recall if Attorney

Conroy discussed the plea offer with him.

‘‘During the New Britain trial, the state sought to

introduce a letter written by the petitioner to his codefendant . . . Johnson in which the petitioner offered

Johnson money to tell the police that the petitioner had

not been involved. This letter had been introduced at

the Hartford trial as consciousness of guilt. In the New

Britain trial, the letter was not introduced, but the petitioner’s testimony on this subject from the Hartford

trial was read to the jury. The petitioner now claims

that Attorney Conroy did not tell him that this testimony

would be admitted at the New Britain trial and, had he

done so, the petitioner would have possibly considered

pleading guilty instead of going to trial.’’

In rejecting the petitioner’s claim that Attorney Conroy provided ineffective assistance, the habeas court

stated: ‘‘Even though the court has granted the petitioner’s motion to amend the pleadings to allege a claim

that Attorney Conroy failed to adequately advise the

petitioner regarding the plea, there is simply no evidence that this is the case. For starters, the petitioner

has presented no evidence from which this court can

conclude that there was a firm offer of seventy [years of]

incarceration. Attorney Conroy testified that he thought

the offer might have been for seventy years. There was

no testimony about the charges to which the petitioner

would have to plead guilty to receive that sentence.

Further, there was no evidence whatsoever from which

this court could conclude that, even if such an offer

were made, the trial court would have accepted the

offer, a necessary requirement under our case law.

Finally, the petitioner’s testimony in this regard is also

unpersuasive. He testified that he possibly would have

considered pleading guilty to the offer if he had known

that his testimony from the Hartford trial would have

been admitted. The court does not find this credible.

Thus, the claim is denied.’’

As we have stated previously, ‘‘[i]n order to prevail

on a claim of ineffective assistance of counsel, the petitioner must establish both prongs of the Strickland test.

. . . [A] habeas court may dismiss the petitioner’s claim
if he fails to satisfy either prong. . . . Accordingly, a

court need not determine the deficiency of counsel’s

performance if consideration of the prejudice prong will

be dispositive of the ineffectiveness claim.’’ (Internal

quotation marks omitted.) Carrasquillo v. Commissioner of Correction, 206 Conn. App. 195, 205, A.3d

(2021). To establish prejudice when a petitioner has

rejected an alleged plea offer due to ineffective assistance of counsel, the petitioner must establish ‘‘that

(1) it is reasonably probable that, if not for counsel’s

deficient performance, the petitioner would have

accepted the plea offer, and (2) the trial judge would

have conditionally accepted the plea agreement if it had

been presented to the court.’’ Ebron v. Commissioner

of Correction, 307 Conn. 342, 357, 53 A.3d 983 (2012),

cert. denied sub nom. Arnone v. Ebron, 569 U.S. 913,

133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013). ‘‘A reasonable

probability is a probability sufficient to undermine confidence in the outcome. . . . In a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by

speculation . . . but by demonstrable realities. . . . If

the habeas court determined that . . . it is not reasonably probable that the trial court would have imposed

the sentence embodied in the plea agreement, the prejudice prong has not been satisfied.’’ (Citation omitted;

internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn. App. 813, 834–35, 153

A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d

536 (2017).

Our review of the record in the present case supports

the habeas court’s conclusion that the petitioner failed

to meet his burden of demonstrating that the trial court

would have accepted the plea agreement. The petitioner

presented no evidence to that effect, despite having

offered eleven exhibits into evidence at the habeas trial.

In fact, the record is bereft of any evidence that a firm

plea agreement for seventy years of incarceration even

existed,5

let alone that the court would have accepted

the agreement. Even if we assume the existence of such

an agreement, the petitioner’s equivocal testimony that

he ‘‘[p]ossibly’’ would have accepted the plea offer was

not sufficient to meet his burden of demonstrating a

reasonable probability that, if not for Attorney Conroy’s

deficient performance, he would have accepted the plea

offer. Because the petitioner has failed to establish that

he was prejudiced by Attorney Conroy’s allegedly deficient performance in the plea bargain context, the

habeas court properly denied the habeas petition with

respect to this claim.6

II

The petitioner next claims that his kidnapping conviction in the New Britain case violated his right to due

process because the jury in that case was not instructed

to determine whether Clarke was restrained to an
extent exceeding that which was necessary to complete

the other crimes, as required by State v. Salamon, supra,

287 Conn. 509. We are not persuaded.

The habeas court found the following relevant facts

related to the petitioner’s conviction in the New Britain

case and his encounter with Clarke on October 19,

1999. After the petitioner and Johnson accosted Clarke,

forced him into the building where he worked, took

his laptop and credit card, and made him disclose the

personal identification number for the credit card, they

‘‘then ordered him to get into his vehicle. He refused

to do so, at which point one of them struck him with

the gun and they both assaulted [Clarke]. This occurred

while they were still inside the building. Clarke continued to fight with both of them but they opened the door

to the building and pulled him outside by his arms and

down the stairs leading out of the building into the

parking lot. The petitioner and Johnson went to

[Clarke’s] car and opened the car door. They ordered

Clarke to get into the backseat and pushed him into

the car. Clarke was pushed close enough to the interior

of the car that he was able to touch the seats and the

center console. He was in the area between the door

and the inside of the car for approximately twenty seconds. He was almost inside the car but not in the backseat. He used the seats and console as leverage to push

himself backward and break free, which he did, and

then ran back in the direction that they had come from

but was tackled again. He screamed for help in the

direction of a passerby. He was then pushed up against

a wall by the petitioner, where they both struggled for

thirty to forty seconds. The last thing he remembered

was being pushed to the ground until police officers

arrived.

‘‘In his statement to police, which was admitted as

substantive evidence for the jury, the petitioner admitted that their plan was to steal [Clarke’s car] and force

[Clarke] to come with them in the stolen vehicle so

[Clarke] would be unable to call the police. According

to the petitioner, Clarke did not want to go with them,

but they were pulling him by his arms trying to force

him outside the building and into the car. Both the

petitioner and Johnson repeatedly tried to get Clarke

inside the vehicle but were ultimately unsuccessful.’’

We first set forth our standard of review applicable

to the petitioner’s claim that his right to due process

was violated as a result of the absence of a Salamon

instruction to the jury. ‘‘In reviewing this issue, we are

mindful that the facts found by the habeas court are

subject to the clearly erroneous standard of review.

Farmer v. Commissioner of Correction, 165 Conn. App.

455, 458, 139 A.3d 767, cert. denied, 323 Conn. 905,

150 A.3d 685 (2016). The applicability of Salamon and

whether the court’s failure to give a Salamon instruction was harmless error are issues of law over which our
review is plenary.’’ (Internal quotation marks omitted.)

Pereira v. Commissioner of Correction, 176 Conn. App.

762, 767–68, 171 A.3d 105, cert. denied, 327 Conn. 984,

175 A.3d 43 (2017).

To resolve the petitioner’s Salamon claim on appeal,

we must also provide some background concerning that

case and certain changes in the law concerning how

courts interpret our kidnapping statutes. In 2008, our

Supreme Court decided State v. Salamon, supra, 287

Conn. 509, in which it ‘‘overruled [its] long-standing

interpretation of the state’s kidnapping statutes . . . .’’

Banks v. Commissioner of Correction, 339 Conn. 1, 4,

A.3d (2021). Specifically, in Salamon, our

Supreme Court, after conducting an ‘‘examination of

the common law of kidnapping, the history and circumstances surrounding the promulgation of our current

kidnapping statutes and the policy objectives animating

those statutes . . . conclude[d] the following: Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the

presence of an intent to prevent a victim’s liberation,

intended to exclude from the scope of the more serious

crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that

are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with

another crime, a defendant must intend to prevent the

victim’s liberation for a longer period of time or to a

greater degree than that which is necessary to commit

the other crime.’’ State v. Salamon, supra, 542. The

court in Salamon also held that ‘‘when the evidence

reasonably supports a finding that the restraint was not

merely incidental to the commission of some other,

separate crime, the ultimate factual determination [of

whether the movement of the victim has independent

criminal significance or is merely incidental to an underlying crime] must be made by the jury’’; (emphasis omitted) id., 547–48; which should be instructed to consider

various factors, ‘‘including the nature and duration of

the victim’s movement or confinement by the defendant, whether that movement or confinement occurred

during the commission of a separate offense, whether

the restraint was inherent in the nature of the separate

offense, whether the restraint prevented the victim from

summoning assistance, whether the restraint reduced

the defendant’s risk of detection and whether the

restraint created a significant danger or increased the

victim’s risk of harm independent of that posed by the

separate offense.’’ Id., 548.

In Luurtsema v. Commissioner of Correction, 299

Conn. 740, 748, 12 A.3d 817 (2011), our Supreme Court

addressed the issue of ‘‘[w]hether individuals whose

kidnapping convictions became final prior to [the

court’s] reconsideration [of the kidnapping statutes] in
Salamon may challenge the legality of their convictions

based on the interpretation . . . adopted in [Salamon],’’ and determined that Salamon applies retroactively in habeas cases. Id., 751. Thus, even though the

petitioner’s conviction in the New Britain case became

final before Salamon was decided, his claim that the

jury was not properly instructed in accordance with

Salamon was properly raised in his habeas petition.

See Banks v. Commissioner of Correction, supra, 339

Conn. 15–17.

In the present case, the habeas court determined

that the fact that the jury had not been instructed in

accordance with Salamon was harmless beyond a reasonable doubt, as ‘‘there [was] no ‘reasonable possibility that a properly instructed jury would [have]

reach[ed] a different result.’ ’’ In support of its conclusion, the habeas court examined the factors set forth

in Salamon and made a number of findings, including

that the instances of restraint of Clarke’s liberty, which

occurred when he was dragged by his arms out of the

office building and was forced into his own vehicle,

‘‘were independent of, and exceeded, any restraint necessary to commit either a robbery, burglary, assault or

larceny,’’ and, thus, were not incidental to the commission of any of the charged offenses; although the duration of the restraint was not lengthy, its nature was

significant; the confinement did not occur during the

commission of a separate offense, as ‘‘the facts [did]

not support the conclusion that the robbery was still

underway at the time of the restraint on [Clarke’s] movement’’; the petitioner’s restraint of Clarke was not inherent to the robbery, as ‘‘no jury could reasonably determine that the petitioner’s acts of pulling [Clarke] by his

arms out of the building and into the parking lot, and,

further, the act of pushing [Clarke] into the vehicle,

coupled with the petitioner’s statements that they could

not leave [Clarke] behind for fear of being identified,

were inherent to the robbery of [Clarke], or even the

burglary or larceny of his motor vehicle’’; Clarke

shouted for help from a passerby and, thereby, was

able to summon assistance; Clarke was restrained for

the purpose of reducing the petitioner’s risk of identification; and, because the petitioner and Johnson had

completed the robbery and the burglary, there was no

need to further restrain Clarke, but by forcing Clarke

into the parking lot and his vehicle, they significantly

increased Clarke’s risk of harm. In summary, the habeas

court concluded that ‘‘the restraint and abduction of

[Clarke] was in excess of any restraint needed to complete the commission of another crime. . . . [The]

court has no doubt that the jury, even if properly

instructed on incidental restraint, would have returned

the same verdict.’’

The petitioner agrees with the habeas court that the

dispositive ‘‘question in this case [is] whether the lack

of a Salamon instruction was harmless error . . . .’’
He claims that he was harmed by the lack of such

an instruction. In support of that claim, the petitioner

asserts that, even though Clarke had relinquished the

items that he and Johnson demanded, ‘‘the continuing

efforts to subdue [Clarke] for purposes of evading

detection were part of the robbery itself . . . .’’ He

further claims that ‘‘[i]t is undisputed that any alleged

confinement occurred solely while [Clarke was being

attacked]. There is nothing in the record to suggest

that there was anything that could be characterized as

confinement that occurred apart from the robbery of

[Clarke] and the force incidental to attempting to gain

control of [Clarke] to complete the robbery.’’ In making

that argument, the petitioner relies on this court’s decision in Banks v. Commissioner of Correction, 184

Conn. App. 101, 194 A.3d 780 (2018), which, during the

pendency of this appeal, was reversed by our Supreme

Court. See Banks v. Commissioner of Correction,

supra, 339 Conn. 4–5.7

We must briefly set forth the factual background of

Banks. In 1995, the petitioner in that case ‘‘was arrested

and charged in connection with the armed robberies

of two Bedding Barn stores, the first in Newington and

the second in Southington.’’ Id., 5. With respect to the

Newington robbery, the petitioner pointed a gun at a

store employee, and took money from the cash register

and from the wallet of a second store employee, after

which he moved both employees down a hallway and

locked them in a bathroom. Id., 5–6. After the employees

heard a bell indicating that the front door of the store

had been opened, they kicked down the door and called

911. Id., 7. With respect to the Southington robbery, the

petitioner, armed with a gun, demanded money from

the cash register, and, once he obtained that money,

he led the store employee and her roommate, who had

been in the store, to a bathroom at gunpoint and told

them to lock themselves inside. Id., 7–8. Again, after a

buzzer went off indicating that the door to the store

had been opened, the employee and her roommate left

the bathroom and called 911. Id.

After the petitioner’s convictions in Banks were

upheld on direct appeal; State v. Banks, 59 Conn. App.

112, 113–14, 755 A.2d 951, cert. denied, 254 Conn. 950,

762 A.2d 904 (2000); our Supreme Court decided Salamon in 2008. Subsequently, in 2014, the petitioner in

Banks filed a petition for a writ of habeas corpus, claiming that his convictions of four counts of kidnapping

violated his right to due process because the jury had

not been instructed in accordance with Salamon. Banks

v. Commissioner of Correction, supra, 339 Conn. 13.

The habeas court denied the habeas petition, and the

petitioner, on the granting of certification, appealed to

this court, which, in a divided panel, concluded that

the absence of a jury instruction required by Salamon

was not harmless beyond a reasonable doubt. Banks

v. Commissioner of Correction, supra, 184 Conn. App.
104. We concluded that the petitioner was entitled to

a new trial because a jury provided with a Salamon

instruction reasonably could have found that the petitioner’s movement and confinement of his victims was

done in furtherance of the robberies. Id., 131. Following

our decision, our Supreme Court granted the petition

for certification to appeal filed by the respondent in

Banks. Banks v. Commissioner of Correction, 330

Conn. 950, 197 A.3d 391 (2018).

On appeal, our Supreme Court decided two issues in

Banks that impact our decision in the present case.

First, the court established the standard of harmless

error review applicable to habeas cases involving a

Salamon error. Banks v. Commissioner of Correction,

supra, 339 Conn. 15. The court adopted the standard

articulated in Brecht v. Abrahamson, 507 U.S. 619, 623,

113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), pursuant to

which a new trial is necessary if the instructional error

‘‘had [a] substantial and injurious effect or influence in

determining the jury’s verdict . . . .’’ (Internal quotation marks omitted.) Banks v. Commissioner of Correction, supra, 15.

Next, the court addressed the issue of whether ‘‘a

properly instructed jury would have found the petitioner guilty of kidnapping beyond a reasonable doubt

notwithstanding the Salamon error.’’ Id., 34. In rejecting

this court’s conclusion that a jury reasonably might

have found that the restraint and movement of the victims were undertaken as part of the ongoing robberies,

the court stated: ‘‘This case is categorically distinct from

all of our prior Salamon cases insofar as the petitioner

indisputably had accomplished the criminal objective

of his underlying crimes prior to the commencement

of the alleged kidnapping. Under such circumstances,

there simply is no concern that the intent of the legislature will be frustrated by prosecuting a defendant for

kidnapping solely on the basis of the restraint inherent

in or necessary to accomplish the underlying crime.

Many if not most robbers choose to leave the scene

immediately upon obtaining the fruits of their crime.

Numerous sister state courts have concluded, as a matter of law, that a perpetrator’s choice to remain at the

crime scene and further restrict a victim’s liberty after

having robbed him or her manifests independent, criminal significance. . . . There is nothing specific to—let

alone inherent in—the crime of robbery about forcing

someone at gunpoint to the back of a store and

restraining them in a bathroom or cooler. That conduct

could just as well follow, and facilitate the offender’s

escape from, a physical or sexual assault, or other

crime. The purpose is to escape unhindered from a

crime scene—which, presumably, is a goal of most criminals—and the specific nature of the underlying crime

is simply irrelevant.’’ (Citations omitted.) Id., 39–41.

Moreover, the court in Banks, in addressing the fac-
tors set forth in Salamon for determining whether conduct has independent criminal significance, stated

‘‘that, in cases such as this, in which it is undisputed

that the perpetrator unlawfully restrained his victims

following, and to facilitate his escape from the location

of, a robbery, the Salamon factors typically will tip

against the petitioner’s claim.’’ Id., 42. After examining

those factors in detail as applied to the facts of the case,

the court in Banks concluded ‘‘that, when a perpetrator,

having taken his victims’ valuables, then leads them at

gunpoint away from a highly visible commercial storefront and confines them in an isolated area of the store

while he makes his escape, thereby exposing them to

new and different risks, such conduct is not inherent

in the nature of the robbery but, rather, indisputably

has independent criminal significance.’’ Id., 55–56.

Our decision in the present case is guided by our

Supreme Court’s decision in Banks. Here, the petitioner

and Johnson already had taken the keys to Clarke’s

vehicle,

his laptop and credit card, and had made him disclose

the personal identification number for the credit card,

when they ordered him to get into his vehicle. Their

conduct in pulling Clarke out of the building by his arms

and pushing him into his car had nothing whatsoever

to do with their robbery of his valuables, nor was it

necessary for them to take Clarke’s vehicle. As our

Supreme Court in Banks explained: ‘‘The goal of a robbery is to take possession of another’s property. Once

that property has been taken by force, the purpose of

leading the victims to a different, more isolated location

and requiring that they remain there for some period of

time is, undoubtedly, to facilitate the offender’s escape

from the premises, undetected and unobstructed.’’ Id.,

44. The petitioner’s statement to the police regarding

the New Britain case, which was dated October 25,

1999, and which had been admitted into evidence at

the habeas trial, demonstrated that the petitioner’s plan

was to steal Clarke’s car and to force him to come along

so that Clarke could not call the police and identify the

perpetrators. The restraint and movement of Clarke,

therefore, were done to facilitate the petitioner’s escape

from the scene of the robbery, not to accomplish the

robbery itself. As such, this conduct had independent

criminal significance. Moreover, even though the facts

of the present case differ slightly from those in Banks,

both cases involve a situation in which a ‘‘perpetrator

removes [a victim] from the scene of [a] robbery and

restrains [the victim] after having forcibly taken [the

victim’s] property . . . .’’ Id. We therefore are not persuaded by the petitioner’s attempt to distinguish Banks

from the present case.

Accordingly, we conclude, on the basis of the reasoning in Banks, that the habeas court properly determined

that the absence of a Salamon instruction at the peti-
tioner’s criminal trial in the New Britain case constituted harmless error. The habeas court, after thoroughly

addressing each of the Salamon factors as applied to

the facts of the present case, made factual findings in

connection therewith, which were not clearly erroneous, and its determination that those factors did not

favor the petitioner was supported by the record. The

absence of a Salamon instruction, thus, could not have

substantially affected or influenced the jury’s verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Specifically, the petitioner was convicted of capital felony in violation

of General Statutes (Rev. to 1999) §§ 53a-54b (5) and 53a-8 (a), murder in

violation of General Statutes (Rev. to 1999) §§ 53a-54a (a) and 53a-8 (a),

felony murder in violation of General Statutes § 53a-54c, kidnapping in the

first degree in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-8

(a), robbery in the first degree in violation of General Statutes § 53a-134 (a)

(2), robbery in the second degree in violation of General Statutes § 53a-135

(a) (1), larceny in the first degree in violation of General Statutes (Rev. to

1999) §§ 53a-122 (a) (3) and 53a-8 (a), conspiracy to commit kidnapping in

the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-92 (a)

(2) (B), and larceny in the fourth degree in violation of General Statutes

(Rev. to 1999) § 53a-125 (a).

2

In addition to the kidnapping and robbery offenses, the petitioner also

was convicted of burglary in the first degree in violation of General Statutes

§ 53a-101 (a) (1) and (2), attempt to commit murder in violation of General

Statutes (Rev. to 1999) §§ 53a-54a and 53a-49, assault in the first degree in

violation of General Statutes § 53a-59 (a) (1) and (2), conspiracy to commit

robbery in the first degree in violation of General Statutes §§ 53a-48 and

53a-134 (a) (1) and (2), conspiracy to commit kidnapping in the first degree

with a firearm in violation of §§ 53a-48 and 53a-92a, conspiracy to commit

burglary in the first degree in violation of General Statutes §§ 53a-48 and

53a-101, conspiracy to commit assault in the first degree in violation of

§§ 53a-48 and 53a-59 (a) (1), larceny in the first degree in violation of General

Statutes (Rev. to 1999) § 53a-122 (a) (3), and conspiracy to commit larceny

in the first degree in violation of General Statutes (Rev. to 1999) §§ 53a-122

(a) (3) and 53a-48.

3 This court agreed with a double jeopardy claim raised by the petitioner

that the trial court improperly had sentenced him on his conviction of six

counts of conspiracy offenses, and we remanded the case with direction to

merge the petitioner’s conviction of the six conspiracy offenses and to

vacate the sentences for five of them. State v. Coltherst, supra, 87 Conn.

App. 96, 113.

4

In light of our conclusion that the petitioner has failed to establish

deficient performance by Attorney O’Brien, we need not address the prejudice prong of the Strickland test. See Fair v. Commissioner of Correction,

205 Conn. App. 282, 294, 256 A.3d 163 (2021) (‘‘[i]n its analysis, a reviewing

court may look to the performance prong or to the prejudice prong [of the

Strickland test], and the petitioner’s failure to prove either is fatal to a

habeas petition’’ (internal quotation marks omitted)).

5 At oral argument before this court, the petitioner’s counsel acknowledged

the difficulty in pursuing this claim on appeal given the sparse record. He

also recognized the petitioner’s ambivalence regarding whether he would

have accepted the plea agreement.

6 See footnote 4 of this opinion.

7 On May 17, 2021, the state filed a notice of supplemental authority,

pursuant to Practice Book § 67-10, advising this court of the release of our

Supreme Court’s decision in Banks on May 12, 2021, and its applicability

to the present case.

At oral argument before this court, the petitioner’s counsel argued that

our Supreme Court’s decision in Banks was not dispositive of this claim

on appeal, and he attempted to distinguish Banks on the ground that the

facts of the present case were not as conclusive as those in Banks, in which

store employees were locked in a bathroom.