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JOHN B. v. COMMISSIONER OF CORRECTION*
(AC 41640)
Lavine, Prescott and Harper, Js.
Syllabus
The petitioner, who had been convicted of, inter alia, the crimes of attempt
to commit kidnapping in the first degree and attempt to commit sexual
assault in the first degree, sought a writ of habeas corpus, claiming, inter
alia, that under current case law interpreting the kidnapping statutes,
including State v. Salamon (287 Conn. 509), his due process rights under
the federal and state constitutions were violated due to the trial court’s
failure to properly instruct the jury. The petitioner’s conviction stemmed
from his conduct in bursting through the door of the victim’s apartment,
choking her and engaging in a physical struggle with her, after which
he dragged her out of the apartment and into a nearby hallway. Eventu-
ally the struggle moved outdoors, where a bystander heard the victim’s
screams and restrained the petitioner until the police arrived. While at
the police station, the petitioner admitted that he intended to bring the
victim back to his apartment to rape and torture her. Although the trial
court did not instruct the jury that in order to find the petitioner guilty
of attempted kidnapping, it had to find that he intended to restrain the
victim to a greater degree than was necessary to commit sexual assault,
the habeas court concluded that the trial court was not required to give
a Salamon instruction and that even if it had been required to do so,
the absence of a Salamon instruction was completely harmless because
there was no reasonable possibility that a jury instructed pursuant to
Salamon would have reached a different result than it did. Accordingly,
the habeas court rendered judgment denying the amended petition,
and, thereafter, granted the petition for certification to appeal, and the
petitioner appealed to this court. Held:
1. The petitioner’s claim that the habeas court’s failure to give the jury a
Salamon instruction was not harmless error was unavailing, that court
having properly concluded, on the basis of the evidence, that the peti-
tioner was not entitled to a Salamon instruction because he intended
to abduct and restrain the victim for a longer period of time and to a
greater degree than would have been necessary to commit the other
charged offenses and was only thwarted by the victim’s own efforts
to escape and the timely intercession of a third party: the evidence
demonstrated that the petitioner intended to render the victim uncon-
scious, bind her and take her to his apartment where he would rape
and torture her, and that he engaged in conduct designed to carry out
his plan when he burst into her apartment, choked her and chased her
when she attempted to get away, and his attempt to bind and move the
victim from her apartment to his apartment where he intended to rape
and torture her increased the risk of harm, prevented her from seeking
help and would have prevented the crime from being detected, which
showed that he prevented the victim’s liberation for a longer period of
time or to a greater degree than that which would have been necessary
to commit the other crime; moreover, the state was not required to
establish any minimum period of confinement or degree of movement,
the petitioner, who was convicted of attempt to commit kidnapping in
the first degree, failed to address the law pertaining to the crime of
attempt as it related to the facts of this case, and because the trial court
was not required to give the jury a Salamon instruction, it was not
necessary for this court to determine whether the absence of such an
instruction was harmless error.
2. The petitioner’s claim that his trial counsel was ineffective in conceding
his guilt to a burglary charge during closing argument was unavailing;
the habeas court properly determined that the petitioner failed to satisfy
his burden of overcoming the presumption that trial counsel’s remarks
reflected a reasonable trial strategy, as the petitioner had pursued an
affirmative defense that he should be found not guilty by reason of
mental disease or defect, which entails an acknowledgment that he
committed the offenses, counsel explained to him that such an affirma-
tive defense constituted an admission of guilt, and although the peti-
tioner was equivocal as to whether he recalled counsel’s advice to
him about presenting a mental disease or defect defense involving a
concession of guilt and claimed that he misunderstood that he would
have to concede his factual guilt to all charges, there was no evidence
in the record that the petitioner ever objected to counsel’s concession
strategy and the habeas court made no such finding, and counsel’s
presentation of that defense was predicated on the evidence in the
record, including testimony from two experts that the petitioner was
suffering from a mental disease or defect when he committed the
charged crimes.
Argued September 17—officially released December 17, 2019
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, Kwak, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (petitioner).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Brian W. Preleski, state’s
attorney, and Tamara Grosso, assistant state’s attorney,
for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, John B., appeals from the
judgment of the habeas court denying his petition for
a writ of habeas corpus. On appeal, the petitioner claims
that the habeas court erred when it concluded that (1)
the trial court’s failure to charge the jury pursuant to
Salamon1 was harmless beyond a reasonable doubt and
(2) trial counsel did not render ineffective assistance
of counsel. We affirm the judgment of the habeas court.
The following procedural history is relevant to the
petitioner’s claims. The petitioner is in the custody of
the respondent, the Commissioner of Correction, serv-
ing consecutive sentences totaling fifty-five years that
were imposed by the trial court following two jury trials.
On January 28, 2005, the petitioner was sentenced to
fifteen years in prison after a jury found him guilty of
assault in the second degree in violation of General
Statutes § 53a-60 (a) (2) and assault of a peace officer in
violation of General Statutes § 53a-167c (a) (1) (assault
case). The petitioner’s conviction was upheld on
direct appeal.
On December 5, 2005, the petitioner was sentenced
to forty years in prison after a jury found him guilty of
attempt to commit sexual assault in the first degree in
violation of General Statutes §§ 53a-49 (a) (2) and 53a-
70 (a) (1), attempt to commit kidnapping in the first
degree in violation of General Statutes §§ 53a-49 (a) (2)
and 53a-92 (a) (2) (A), burglary in the first degree in
violation of General Statutes § 53a-101 (a) (2), assault
in the third degree in violation of General Statutes § 53a-
61 (a) (1), and interfering with an officer in violation
of General Statutes § 53a-167a (a). State v. John B., 102
Conn. App. 453, 455, 925 A.2d 1235, cert. denied, 284
Conn. 906, 931 A.2d 267 (2007) (attempted kidnapping
case).2 The petitioner’s conviction was upheld on direct
appeal. Id.3
Following the petitioner’s convictions, our Supreme
Court rendered a decision in State v. Salamon, 287
Conn. 509, 949 A.2d 1092 (2008), which changed Con-
necticut law regarding kidnapping in conjunction with
another crime. Thereafter, in Luurtsema v. Commis-
sioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011),
our Supreme Court held that Salamon applied retroac-
tively to collateral attacks on judgments rendered final
before Salamon was issued. Those two cases are at the
heart of the petitioner’s Salamon or due process claims
in this appeal.
On September 11, 2014, the self-represented peti-
tioner initiated the present habeas corpus action.
Appointed counsel filed a second amended petition on
August 21, 2017, alleging that (1) the petitioner’s due
process rights under the fifth, sixth, eighth and four-
teenth amendments to the federal constitution and arti-
cle first, § 8, of the constitution of Connecticut were
violated by the trial court when it failed to charge the
jury pursuant to State v. Salamon, supra, 287 Conn. 509,
and (2) his trial counsel rendered ineffective assistance.
The respondent denied the material allegations of the
amended petition, and the matter was tried on October
11, 2017. The habeas court denied the petition for a writ
of habeas corpus on March 23, 2018, and, thereafter,
granted the petitioner certification to appeal.
In its memorandum of decision, the habeas court
quoted the facts reasonably found by the jury as stated
in this court’s opinion in the petitioner’s direct appeal
in the attempted kidnapping case. See State v. John B.,
supra, 102 Conn. App. 455–48. ‘‘[T]he [petitioner] and
the female victim were neighbors in an apartment build-
ing. The [petitioner] and the victim were acquaintances;
they had never spoken to each other on the telephone,
but the [petitioner] had once been to the victim’s apart-
ment, visiting with her and her granddaughter. At
approximately 9:30 p.m. on May 8, 2001, the [petitioner]
called the victim on the telephone and invited her to
his apartment to watch a movie with him. The victim
declined the invitation, but the [petitioner], in a stern
voice, insisted that she come to his apartment. After
this initial conversation ended, the [petitioner] called
the victim again, but the victim did not answer her
telephone.
‘‘A short time later, the [petitioner] appeared at the
victim’s apartment, knocking on the door and windows.
The [petitioner] identified himself and asked the victim
to let him into her apartment. The victim became fright-
ened. As she approached the door to her apartment,
the [petitioner] burst through the door, wrapped his
hands around her throat and began to choke her. A
physical struggle between the [petitioner] and the vic-
tim ensued. While the victim tried to break free and to
protect herself, the [petitioner] dragged her out of her
apartment and into a nearby hallway. The [petitioner]
told the victim to ‘go with it’ and to ‘let go.’ In a hushed
voice, the [petitioner] also told the victim that he loved
her. At one point during the struggle, the victim pre-
tended to faint, causing the [petitioner] to loosen his
grip on her neck. The victim began to flee, but the
[petitioner] grabbed her by one of her legs and pulled
her back to him. Eventually, the struggle moved out-
doors where the victim, experiencing difficulty as a
result of the [petitioner’s] assault, began screaming for
help. The [petitioner] caught up with her and pinned
her against a wall.
‘‘A bystander, Myron St. Pierre, heard the victim’s
cries for help and observed the [petitioner] attempting
to pull the victim against her will back inside the apart-
ment building. St. Pierre approached the [petitioner]
and the victim, instructing them to break up the melee.
The [petitioner] told St. Pierre: ‘[S]he just got out of a
mental institute. She’s crazy. We can handle it . . . it’s
all right.’ The victim told St. Pierre that the [petitioner]
was lying and was trying to kill her. The victim also
asked him to call the police. After the [petitioner] briefly
chased the victim and St. Pierre, St. Pierre physically
restrained the [petitioner] on the ground and instructed
the victim to run to a nearby police station. The victim
took refuge in her apartment and reported the incident
to the police. St. Pierre restrained the [petitioner] until
the police arrived on the scene.
‘‘When David Posadas, an officer with the local police
department arrived at the scene, St. Pierre informed
him that the [petitioner] had attacked the victim. Posa-
das asked the [petitioner] what had occurred, and the
[petitioner] replied that he had not attacked the victim.
The [petitioner] stated that the victim was suicidal and
that he had tried to prevent her from harming herself.
Posadas also spoke with the victim, who appeared to
be upset and disheveled. The victim related the [peti-
tioner’s] actions to Posadas; her account was corrobo-
rated in part by the caller identification function on
her telephone, which reflected that the [petitioner] had
called the victim earlier that evening.
‘‘The [petitioner] was placed under arrest. A search
of his person incident to his arrest yielded, among other
items, a pair of handcuffs and a ‘bondage device.’ The
[petitioner] consented to a police search of his apart-
ment. Although the [petitioner] was calm and coopera-
tive with the police until and immediately following his
arrest, he began mumbling to himself and rocking back
and forth during the search of his apartment. During
the booking process at the police department, the [peti-
tioner] became combative with the police officers
involved; he would not comply with the orders being
given to him by the officers and refused to be finger-
printed. . . .
‘‘At approximately 3 a.m. on the morning following
his arrest, the [petitioner] indicated that he wanted to
discuss the events that culminated in his arrest. After
waiving his right to remain silent, the [petitioner] spoke
with Sandra Mattucci, an officer with the local police
department. The [petitioner] stated that, on the prior
evening, he had intended to help the victim by bringing
her ‘into a deeper level of consciousness and . . . into
a true reality.’ He stated that he intended to accomplish
this by using the handcuffs and [the] bondage device
found on his person and by raping and torturing the
victim. The [petitioner] admitted that he entered the
victim’s apartment and choked the victim to ‘make her
unconscious so that he could bring her back upstairs
to his apartment . . . [and] bring her into this true
reality.’ He also stated that he previously had used the
handcuffs and [the] bondage device on himself and
others.’’ Additional facts will be included as necessary.
Before addressing the petitioner’s claims, we set forth
the standard of review. ‘‘Historical facts constitute a
recital of external events and the credibility of their
narrators. . . . Accordingly, [t]he habeas judge, as the
trier of facts, is the sole arbiter of credibility of wit-
nesses and the weight to be given to their testimony.
. . . The application of the habeas court’s factual find-
ings to the pertinent legal standard, however, presents
a mixed question of law and fact, which is subject to
plenary review.’’ (Citations omitted; internal quotation
marks omitted.) Gaines v. Commissioner of Correc-
tion, 306 Conn. 664, 677, 51 A.3d 948 (2012).
I
The petitioner’s first claim on appeal is that the
habeas court improperly denied his petition because the
trial court’s failure to give a jury instruction pursuant
to Salamon was not harmless beyond a reasonable
doubt. We disagree.
We begin with the standard of review applicable to
the petitioner’s claim. In reviewing the petitioner’s Sala-
mon claim, we are mindful that mixed questions of law
and fact are subject to plenary review. See Hinds v.
Commissioner of Correction, 321 Conn. 56, 65, 135 A.3d
596 (2016). ‘‘The applicability of Salamon and whether
the trial court’s failure to give a Salamon instruction
was harmless error are issues of law over which our
review is plenary.’’ Farmer v. Commissioner of Correc-
tion, 165 Conn. App. 455, 459, 139 A.3d 767, cert. denied,
323 Conn. 905, 150 A.3d 685 (2016).
The habeas court determined that the petitioner had
alleged that (1) the trial court did not properly instruct
the jury with respect to the charge of attempted kidnap-
ping, (2) he was convicted for conduct that the legisla-
ture did not intend to criminalize with regard to
attempted kidnapping, (3) plea negotiations were
unreasonably curtailed in light of the change in the
interpretation of the kidnapping statute, (4) he is being
unreasonably and cruelly punished for conduct that is,
in light of Salamon, no longer a crime in Connecticut,
and (5) the due process violations prejudiced his case
and limited his ability to obtain a lesser sentence or a
conviction of a lesser offense.
The habeas court’s memorandum of decision dis-
closes that it was cognizant of the controlling law. ‘‘[A]
defendant may be convicted of both kidnapping and
another substantive crime if, at any time prior to, during
or after the commission of that other crime, the victim
is moved or confined in a way that has independent
criminal significance, that is, the victim was restrained
to an extent exceeding that which was necessary to
accomplish or complete the other crime. Whether the
movement or confinement of the victim is merely inci-
dental to and necessary for another crime will depend
on the particular facts and circumstances of each case.’’
(Footnote omitted.) State v. Salamon, supra, 287 Conn.
547. ‘‘[W]hen the evidence reasonably supports a finding
that the restraint was not merely incidental to the com-
mission of some other, separate crime, the ultimate
factual determination must be made by the jury.’’
(Emphasis in original.) Id., 547–48. ‘‘Connecticut courts
ultimately assess the importance of a Salamon instruc-
tion by scrutinizing how a reasonable jury would per-
ceive the [petitioner’s] restraint of the victim, particu-
larly with respect to when, where, and how the
[petitioner] confined or moved the victim.’’ Wilcox v.
Commissioner of Correction, 162 Conn. App. 730, 745,
129 A.3d 796 (2016).
Our Supreme Court summarized the circumstances
preceding and following its decision in Salamon in
Hinds v. Commissioner of Correction, supra, 321 Conn.
66. ‘‘Under our Penal Code, the hallmark of a kidnapping
is an abduction, a term that is defined by incorporating
and building upon the definition of restraint. . . . In
1977, this court squarely rejected a claim that, when
the abduction and restraint of a victim are merely inci-
dental to some other offense, such as sexual assault,
that conduct cannot form the basis of a guilty verdict
on a charge of kidnapping. . . . The court pointed to
the fact that our legislature had declined to merge the
offense of kidnapping with sexual assault or with any
other felony, as well as its clearly manifested intent in
the kidnapping statutes not to impose any time require-
ment for the restraint or any distance requirement for
the asportation.’’ (Citations omitted; footnote omitted.)
Id., 66–67. The court left ‘‘open the possibility that there
could be a factual situation in which the asportation
or restraint was so miniscule that a conviction of kid-
napping would constitute an absurd and unconsciona-
ble result that would render the statute unconstitution-
ally vague as applied.’’ Id., 67–68.
In Salamon, the court reexamined the broad, literal
interpretation of the statute. Id., 68. ‘‘In concluding that
it must overrule its long-standing interpretation, the
court went beyond the language of the kidnapping stat-
ute to consider sources that it previously had over-
looked.’’ Id. The court explained that ‘‘[o]ur legislature,
in replacing a single, broadly worded kidnapping provi-
sion with a graduated scheme that distinguishes kidnap-
pings 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 kidnapping in conjunction with another
crime, a [petitioner] 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.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 69.
Thereafter, Peter Luurtsema filed a petition for a writ
of habeas corpus seeking to have the Salamon holding
applied retroactively to his case.4 See Luurtsema v.
Commissioner of Correction, supra, 299 Conn. 764. In
Luurtsema’s habeas appeal, our Supreme Court ‘‘con-
cluded as a matter of state common law that policy
considerations weighed in favor of retroactive applica-
tion of Salamon to collateral attacks on judgments ren-
dered final before that decision was issued.’’ Hinds v.
Commissioner of Correction, supra, 321 Conn. 69.
In the present case, the habeas court found that the
petitioner’s jury trial in the attempted kidnapping case
occurred in 2005, three years before the Supreme Court
rendered its Salamon decision. The trial court, there-
fore, did not give the jury a Salamon instruction. The
habeas court assumed for the purposes of its analysis of
the petitioner’s claim that he was entitled to a Salamon
instruction.5 The court conducted its analysis pursuant
to the following test: ‘‘[T]he test for determining
whether a constitutional [impropriety] is harmless . . .
is whether it appears beyond a reasonable doubt that
the [impropriety] complained of did not contribute to
the verdict obtained.’’ (Internal quotation marks omit-
ted). State v. Hampton, 293 Conn. 435, 463, 988 A.2d
167 (2009), quoting Neder v. United States, 527 U.S. 1,
15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). ‘‘The test
for determining whether a trial court’s constitutionally
defective jury charge was harmless . . . is not whether
a jury likely would return a guilty verdict if properly
instructed; rather, the test is whether there is a reason-
able possibility that a properly instructed jury would
reach a different result.’’ State v. Flores, 301 Conn. 77,
87, 17 A.3d 1025 (2011).
The habeas court continued that the petitioner was
charged in part with attempted kidnapping6 and that
the trial court instructed the jury that the petitioner
was alleged to have taken ‘‘a substantial step forward
in abducting another person . . . by substantially and
unlawfully restraining [the complainant’s] movement
and restrained [her] by the use of physical force with
the intent to inflict physical injury upon her.’’ (Internal
quotation marks omitted.) The habeas court determined
that the facts reasonably found by the jury included the
petitioner’s bursting through the door of the victim’s
apartment, wrapping his hands around her throat and
choking her. The petitioner struggled with the victim,
who tried to break free of him, but he dragged her
outside the apartment into a nearby hallway. When the
victim began to flee, the petitioner grabbed her leg
and pulled her back toward him. The victim and the
petitioner continued to struggle and ended up outdoors,
where the victim screamed for help. The petitioner
pinned her against a wall. The day after he committed
the offenses, the petitioner acknowledged to the police
that he intended to torture and rape the victim.
In assessing the petitioner’s Salamon analysis in his
posttrial brief, the habeas court found a critical flaw
emanating from the brief’s compression of the timeline
and the absence of relevant facts. The habeas court
found that the petitioner’s overly succinct summary of
the facts pertaining to the sequence of events omits
much of what transpired between the petitioner and
the victim.7 The petitioner’s analysis of his Salamon/
Luurtsema claim omits facts reasonably found by the
jury. The habeas court found that as a result of the
petitioner’s ‘‘myopic view’’ of the facts surrounding the
protracted series of incidents that the petitioner con-
tends that his restriction of the victim was merely inci-
dental to the attempted sexual assault.
The habeas court continued by comparing the Luurt-
sema facts with the facts of the present case. In Luurt-
sema, a case in which the defendant was convicted of
attempt to commit sexual assault in the first degree and
kidnapping in the first degree,8 the facts surrounding
the kidnapping involved the defendant’s having moved
the victim from the couch to the floor in front of the
couch. Any sexual assault could have occurred on the
couch or on the floor, or both, but whether the move-
ment or restriction of movement had any distinct crimi-
nal significance was for a properly instructed jury to
determine. The habeas court found that the present
matter involved facts readily distinguishably from cases
where a Salamon instruction clearly was warranted. It
concluded that ‘‘[t]he trial court was not required to
give a Salamon instruction, but even if it had been
required to do so . . . the absence of a Salamon
instruction was completely harmless because there
[was] no reasonable possibility that a jury instructed
pursuant to Salamon would have reached a different
result than it did.’’9
In his appellate brief, the petitioner claims that the
habeas court erred in concluding that a Salamon
instruction was not warranted by the facts of the case.
He claims that the brief, continuous, and uninterrupted
struggle between him and the victim that began at or
about the threshold of her apartment and progressed
to the exterior of the building lasted mere minutes.10
He continues that ‘‘the additional offenses for which
[he] was charged were so inextricably intertwined with
the struggle that occurred within such a short time-
frame, a Salamon instruction was warranted.’’ The sum
and substance of the petitioner’s claim is that because
the time between his entering the victim’s apartment
and the arrival of the police was mere minutes—five
to ten—any restraint he imposed on the victim was
incidental to the underlying crimes. He contends that
the habeas court incorrectly characterized the struggle
between him and victim as a ‘‘protracted series of inci-
dents’’ and that there is no evidence to support the
habeas court’s characterization of events. The essence
of the petitioner’s claim is that because his struggle
with the victim took place in a short period of time and
the distance she was moved was insignificant, the trial
court’s failure to give a Salamon instruction was not
harmless as the habeas court had concluded. In analyz-
ing the Salamon factors, the petitioner contends that
he restrained the victim for mere minutes, the victim
was not exposed to an increased risk of harm beyond
the charged offenses, and the victim was able to escape
and summon assistance. We reject the petitioner’s
attempt to minimize the significance of his conduct.
The petitioner’s reliance on the length of time he
restrained the victim and the distance he moved her is
misplaced and rests on a misapplication of Salamon.
Our Supreme Court has stated that ‘‘to establish a kid-
napping, the state is not required to establish any mini-
mum period of confinement or degree of movement.’’
(Footnote omitted.) State v. Salamon, supra, 287 Conn.
546. Moreover, the petitioner was convicted of attempt
to commit kidnapping in the first degree, not kidnapping
in the first degree. The petitioner failed to address our
law regarding the crime of attempt as it pertains to the
present case in his brief.11
Significantly, the state highlights the fact that the
petitioner was charged with attempt to commit kidnap-
ping in the first degree, not kidnapping in the first
degree. The state notes that the trial court instructed
the jury that ‘‘the state does not claim that the defendant
actually committed the crime of kidnapping first degree.
Rather, it claims that the defendant is guilty of
attempting to commit that crime.’’ The trial court con-
tinued, ‘‘[w]ith respect to the first count, our criminal
attempt statute insofar as it applies here provides as
follows: a person is guilty of an attempt to commit a
crime if acting with the kind of mental state required
for commission of a crime, in this count kidnapping
first degree, he intentionally does anything which under
the circumstances as he believes them to be is an act
constituting a substantial step in a course of conduct
planned to end in his commission of the crime.’’12
The state points to evidence of the indisputably
bizarre and disturbing statements the petitioner made
to Mattuci that he intended to help the victim by bring-
ing her into a deeper level of consciousness and true
reality by using handcuffs and bondage and raping and
torturing her, which the prosecutor argued to the jury.
The police found handcuffs and a bondage tool on the
petitioner’s person when he was arrested. During the
state’s final argument, the prosecutor argued the facts
related to the petitioner’s intent to render the victim
unconscious, bind her, and abduct her from her apart-
ment to his where he intended to rape and torture her.
On the basis of the evidence, the state concludes that
the habeas court properly determined that the peti-
tioner was not entitled to a Salamon instruction
because he intended to abduct and restrain the victim
for a longer period of time and to a greater degree than
would have been necessary to commit the other charged
offenses and was only thwarted by the victim’s own
efforts to escape and the timely intercession of a third
party. We agree with the state.
The salutary effect of the Salamon rule is to prevent
‘‘the prosecution of a defendant on a kidnapping charge
in order to expose him to the heavier penalty thereby
made available, [when] the period of abduction was
brief, the criminal enterprise in its entirety appeared
as no more than an offense of robbery or rape, and
there was lacking a genuine kidnapping flavor.’’ (Inter-
nal quotation marks omitted.) State v. Salamon, supra,
287 Conn. 546. Salamon does not require an instruction
if the restraint or transport of a victim progresses signifi-
cantly above and beyond the conduct intended and
required to commit other charged or uncharged crimes.
Id. The evidence in the present case demonstrated that
the petitioner intended to render the victim uncon-
scious, bind her and take her to his apartment where
he would rape and torture her. The evidence of the
petitioner’s conduct from the time he burst through the
door of the victim’s apartment until St. Pierre came to
her assistance demonstrates the petitioner’s attempt to
carry out his intention to bind her, render her uncon-
scious, take her to his apartment, and rape and torture
her. Moreover, his conduct and restraint of the victim
exceeded that which was necessary to commit the
object of his criminal intent. He choked the victim;
when she broke free and ran from the apartment he
grabbed her leg and pulled her back, and when she was
free again, he chased her and pinned her against a wall
and kept St. Pierre from coming to her aid. In addition,
the petitioner’s attempt to bind and move the victim
from her apartment to his where he intended to rape
and torture her increased the risk of harm, would have
prevented her from seeking help, and would have pre-
vented the crime from being detected. Clearly, the peti-
tioner attempted ‘‘to prevent the victim’s liberation for
a longer period of time or to a greater degree than that
which [would have been] necessary to commit the other
crime.’’ (Footnote omitted.) Id., 542.
On the basis of our review of the record, we conclude
that the trial court was not required to give the jury a
Salamon instruction, and therefore, we need not decide
whether the absence of the instruction was harmless
error because it is not reasonably possible that a prop-
erly instructed jury would have reached a different
result. See State v. Flores, supra, 301 Conn. 87.
II
The petitioner’s second claim is that the habeas court
improperly concluded that his trial counsel did not ren-
der ineffective assistance of counsel by conceding the
petitioner’s guilt during closing argument.13 We
disagree.
In his amended petition for a writ of habeas corpus,
the petitioner alleged in part that his trial counsel’s
representation fell below the level of reasonable compe-
tence required of criminal defense lawyers in Connecti-
cut and that, but for counsel’s acts and omissions, it is
reasonably probable that the outcome of the proceed-
ings would have been different. More specifically, the
petitioner alleged that counsel (1) failed to explain
meaningfully to him the potential of continued prosecu-
tion in view of the missing victim,14 (2) failed to explain
meaningfully to him the maximum and minimum penal-
ties of the charges against him, (3) failed to engage
effectively in plea negotiations, (4) failed to move to
stay the imposition of the sentence in the assault case,
(5) failed to request that the petitioner receive all avail-
able jail credit due him at the time of sentencing in
either case, (6) improperly conceded the petitioner’s
guilt in closing argument in the kidnapping case without
his consent, (7) failed to present any mitigating evi-
dence at sentencing, and (8) failed to consult with the
petitioner about the consequences of changing his plea
during final argument. The habeas court concluded that
the petitioner failed to prove that his trial counsel ren-
dered ineffective assistance pursuant to the allegations
in (1), (2), (6), (7), and (8).15 On appeal, the petitioner
claims only that the habeas court improperly deter-
mined that trial counsel did not provide ineffective
assistance when counsel conceded the petitioner’s guilt
during final argument without his consent.
The following procedural history and facts are rele-
vant to the petitioner’s claim of ineffective assistance
of counsel. At his criminal trial in the attempted kidnap-
ping case, the petitioner asserted the affirmative
defense of mental disease or defect pursuant to General
Statutes § 53a-13.16 In support of the affirmative
defense, at trial, counsel presented testimony from
Andrew W. Meisler, a psychologist, and Kenneth M.
Selig, a forensic psychiatrist, both of whom had exam-
ined the petitioner.17 Meisler testified that the petitioner
suffered from ‘‘chronic, longstanding, very severe men-
tal illness,’’ which had exhibited itself since the peti-
tioner was a child. Meisler also testified that the peti-
tioner’s records contained diagnoses including
schizophrenia, bipolar disorder, and ‘‘psychiatric disor-
ders that people have a hard time identifying.’’18 Meisler
opined that the petitioner’s conduct on the night of the
attempted kidnapping, as described by the victim and
as observed by the police, was consistent with the peti-
tioner’s history of mental illness. He further opined that
due to the petitioner’s mental illness, the petitioner
‘‘lack[ed] the substantial capacity at times to conform
his behavior to the expectations of the law and of
society.’’
Selig testified that the petitioner had a ‘‘serious men-
tal disorder’’ of psychotic proportions. On the basis of
his review of the petitioner’s psychiatric records and
his own examination of him, Selig concluded that the
petitioner suffered from ‘‘some form of personality dis-
order . . . that renders him so vulnerable to stress that
he’ll lose touch with reality.’’ Selig opined that the peti-
tioner’s conduct, as revealed in the police reports and
related by the petitioner himself, was consistent with
his mental illness.19
In his closing argument, defense counsel argued to
the jury, in part, as follows: ‘‘You will hear from [the
judge] that what the defense raised in this case is called
an affirmative defense of mental disease, and the reason
why it’s an affirmative defense is because there’s a
burden placed on the defendant to prove to you that
he was suffering from a mental disease at the time of
the incident and that as a result of that mental disease
he didn’t appreciate or substantially appreciate the
wrongfulness of his act or did not substantially appreci-
ate adjusting his conduct according to the law. . . .
[W]hen an affirmative defense is raised . . . the
defense has to prove by a preponderance of the
evidence.
‘‘[As the judge] goes through what’s called the jury
charge . . . look . . . carefully because you will be
asking yourself whether or not you come up with what
was the facts this case or not, and I’m not going to
stand here and say nothing happened to [the victim].
You would have to decide whether or not what hap-
pened to [the victim] . . . justified charging my client
with kidnapping, burglary, attempt to commit sexual
assault, attempted kidnaping, assault, and interfering
with a police officer, but the judge will instruct you if
you find [the petitioner] guilty of any one of [the
charges] so then the next thing you’ll have to decide is
did the defense prove their defense of mental disease.
. . . [W]hat we’re claiming is the facts and the testi-
mony prove upon a preponderance of the evidence that
[the petitioner] did not substantially understand the
wrongfulness of his actions or he did not substantially
adjust his conduct to the law. . . .
‘‘It was the evidence that had two expert witnesses
here testifying about the history of [the petitioner] up
to the incident. . . . Selig brought you up almost to a
week before and after. . . . Meisler talked about after,
about [the petitioner’s] mental disease and he was not
in touch with reality.
‘‘Now, an interesting part is assume the doctors
weren’t even here, assume we rested . . . and said take
a look at the facts as they are and make your decision.
So what do you have? And of course only your memory
counts here, but my client is charged with attempted
or attempt to commit sexual assault. Now if [the peti-
tioner] had the intent to commit sexual assault why
would he be dragging [the victim] outside of her apart-
ment into the street? That’s one point you have to
ask yourself.
‘‘It’s a horrendous thing that happened to [the victim],
but looking at it without sympathy, we’d have to analyze
this. As far as the burglary, obviously, he pushed the
door and went in. So there’s burglary there. As far as
attempted kidnapping, nobody knows what he suppos-
edly—well, you heard the testimony of [the victim]. He
dragged her out into the street and who knows what
he wanted to do. Go to a movie or what? He wasn’t
saying anything. He wasn’t say[ing] get in my car. He
didn’t have anything on him, no dangerous weapon or
anything. . . .
‘‘So I tell you, even without the expert witnesses that
we had . . . the uncontroverted testimony of the
expert witnesses, looking at it as to what he did, I’m
not trying to mitigate it. I’m just trying to show you or
have you think about what he did do. What did he do?
Did he act like a, was that a normal person?’’ (Empha-
sis added.)
Attorney Robert McKay represented the petitioner in
both the assault case and the attempted kidnapping
case. The petitioner previously had been represented
by Attorney Douglas Pelletier, who had collected the
majority of discovery materials, including reports from
Meisler and Selig. McKay testified at the habeas trial
that when he entered the cases, he advised the peti-
tioner that he was not likely to prevail, but the petitioner
was unwilling to pursue a plea deal. As trial approached
in the assault case, McKay tried to convince the peti-
tioner to pursue a mental disease or defect defense in
that case. The petitioner rejected his advice, and the
jury found the petitioner guilty.
Before trial in the attempted kidnapping case, the
petitioner decided to present the affirmative defense
of mental disease or defect to those charges. McKay
could not remember when he discussed with the peti-
tioner that presenting a mental disease or defect
defense would involve conceding in closing argument
that the petitioner had engaged in the charged conduct.
McKay asserted that he would have discussed the mat-
ter with the petitioner before trial and testified that
‘‘because of the first trial, and then having the argument
with him about bringing that affirmative defense, it’s
my recollection that he clearly understood . . . that
we would be saying, ‘yes, I did it, but because of my
mental illness . . . I wouldn’t have been able to adjust
my conduct to the law because of my mental illness.’
I mean so we had clearly had that conversation for the
first one.’’ McKay could not recall if he advised the
petitioner specifically that, by presenting a mental dis-
ease or defect defense, he automatically would be con-
ceding his guilt, but McKay believed that it was made
known to the petitioner that he would have to say, ‘‘yes,
I did it.’’ McKay’s strategy for closing argument was to
use the petitioner’s aberrant conduct to his benefit. At
the habeas trial, McKay testified that ‘‘it was the entire
incident that I was . . . probably conceding just to
have . . . some sympathy from the jury toward my
client, because it was so abnormal for a person who
really didn’t know his neighbor, to break into her apart-
ment and drag her down the street and do all that.’’
At the habeas trial, the petitioner testified that it was
a ‘‘psychotic break’’ in 2001 that lead to his arrest and
subsequent incarceration. He also testified that he had
decided not to present a mental disease or defect
defense in the assault case because he believed that,
even if he was convicted without the defense, he would
have received a sentence of only time served, but if he
were found not guilty by reason of mental disease or
defect, he could have been hospitalized for up to fifteen
years. Contrary to his expectation, the petitioner was
found guilty and sentenced to fifteen years of incarcera-
tion. Thereafter, the petitioner chose to present a men-
tal disease or defect defense in the attempted kidnap-
ping case.20 The petitioner testified that counsel
informed him that by pursuing a not guilty plea by
reason of mental disease or defect defense the peti-
tioner was conceding guilt but he did not think that he
had to say that he was guilty for everything.21
After the parties submitted their posttrial briefs, the
habeas court issued its memorandum of decision. The
habeas court addressed the five claims of ineffective
assistance of counsel that the petitioner had not aban-
doned; see footnote 15 of this opinion; and determined
that counsel had not rendered ineffective assistance.
With respect to the only claim raised by the petitioner
on appeal, i.e., counsel improperly conceded the peti-
tioner’s guilt as to the burglary charge during closing
argument, the habeas court stated that an affirmative
defense asserted, pursuant to § 53a-13, that the peti-
tioner should not be found guilty by reason of mental
disease or defect inherently entails an acknowledge-
ment that he committed the offenses. The object of such
a defense is to have the defendant found not criminally
liable for unlawful conduct. See, e.g., Connelly v. Com-
missioner of Correction, 258 Conn. 374, 387, 780 A.2d
890 (2001). ‘‘[B]y maintaining an affirmative defense
pursuant to § 53a-13, the petitioner admitted his com-
mission of the crime. . . . Such an admission necessar-
ily implies that the petitioner also concedes that each
of the individual elements comprising the offense is
satisfied . . . .’’ (Citation omitted; internal quotation
marks omitted.) Sastrom v. Mullaney, 286 Conn. 655,
663–64, 945 A.2d 442 (2008). The habeas court failed
to see how the closing argument of the petitioner’s
counsel in which he acknowledged the petitioner’s
actions is indicative of deficient performance. The court
concluded that counsel’s remarks reflect a reasonable
trial strategy and, thus, that the petitioner failed to
demonstrate that counsel’s performance was inef-
fective.
At the outset, we set forth the applicable standard
of review. ‘‘The habeas court is afforded broad discre-
tion 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 find-
ings to the pertinent legal standard, however, presents
a mixed question of law and fact, which is subject to
plenary review.’’ (Citation omitted.) Duperry v. Solnit,
261 Conn. 309, 335, 803 A.2d 287 (2002).
‘‘It is axiomatic that the right to counsel is the right
to the effective assistance of counsel. . . . A claim of
ineffective assistance of counsel consists of two compo-
nents: a performance prong and a prejudice prong. To
satisfy the performance prong, a claimant must demon-
strate that counsel made errors so serious that counsel
was not functioning as the counsel guaranteed . . .
by the [s]ixth [a]mendment. . . . Put another way, the
petitioner must demonstrate that his attorney’s repre-
sentation was not reasonably competent or within the
range of competence displayed by lawyers with ordi-
nary training and skill in the criminal law. . . . In
assessing the attorney’s performance, we indulge in a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance
. . . . To satisfy the prejudice prong, a claimant must
demonstrate that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of
the proceeding would have been different. . . . The
claim will succeed only if both prongs are satisfied.’’
(Citations omitted; internal quotation marks omitted.)
Sastrom v. Mullaney, supra, 286 Conn. 662.
Pursuant to our plenary review of the petitioner’s
claim, we conclude that the habeas court properly
determined that counsel’s performance with respect to
his closing argument in which he conceded the petition-
er’s guilt with respect to burglary was not deficient. The
petitioner bears the burden ‘‘to prove that his counsel’s
performance was objectively unreasonable.’’ Eubanks
v. Commissioner of Correction, 329 Conn. 584, 598, 188
A.3d 702 (2018).
The evidence demonstrates that counsel urged the
petitioner to assert a mental disease or defect special
defense in the assault case, but the petitioner rejected
counsel’s advice. Following his conviction in the assault
case, the petitioner informed his counsel that he wanted
to pursue a mental disease or defect affirmative defense
in the attempted kidnapping case. Counsel explained
to the petitioner that such an affirmative defense consti-
tuted an admission of guilt. Counsel testified that he
advised the petitioner prior to trial that asserting a not
guilty plea by reason of mental disease or defect affirma-
tive defense involved a concession of guilt.22 The peti-
tioner was equivocal as to whether he recalled counsel’s
advice to him that presenting a mental disease or defect
defense involved a concession of his factual guilt. The
petitioner claimed that he misunderstood that he would
concede his factual guilt to all charges. See footnote
20 of this opinion. There is no evidence in the record,
however, that the petitioner ever objected to counsel’s
concession strategy and the habeas court made no such
finding. Moreover, counsel’s closing argument was
predicated on the evidence in the record. Meisel and
Selig both testified that the petitioner was suffering
from a mental disease or defect when he committed
the charged crimes. Conceding something that is obvi-
ously so is not ineffective advocacy. Counsel’s closing
argument conceding guilt was a reasonable trial strat-
egy to further the petitioner’s interest of pleading not
guilty by reason of mental disease or defect. The peti-
tioner’s claim, therefore, fails.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statues § 54-86e.
1
State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008).
2
The charges in the assault case arose out of an incident that took place in
the holding area of the Bristol courthouse while the petitioner was awaiting
arraignment on the charges in the attempted kidnapping case. State v. John
Bosse, supra, 99 Conn. App. 675. We have omitted a discussion of the facts
in the assault case as they are not implicated in the present appeal.
3
The petitioner filed an application for sentence review with respect to
both convictions. He asked the sentence review division to reduce his sen-
tence by ordering that his fifteen year sentence in the assault case and his
forty year sentence in the attempted kidnapping case run concurrently,
rather than consecutively, for a total effective sentence of forty years. He
claimed, pursuant to Practice Book § 43-28, that his fifty-five year sentence
was inappropriate and disproportionate because he had no criminal record
prior to his convictions in those cases. He also claimed that neither of the
victims was seriously injured. The sentence review division determined that
the petitioner’s sentences fell within the parameters of Practice Book § 43-28.
4
Previously, in State v. Luurtsema, 262 Conn. 179, 203–204, 811 A.2d
223 (2002), our Supreme Court ‘‘foreclosed the possibility of an absurd or
unconscionable result as a matter of statutory interpretation.’’ Hinds v.
Commissioner of Correction, supra, 321 Conn. 68.
5
In footnote 2 of its memorandum of decision, the habeas court also
stated that the facts in the attempted kidnapping case did not, in the court’s
analysis, warrant a Salamon instruction.
6
The state alleged in part in count two of the operative information that
the petitioner ‘‘with the requisite mental state required for the commission
of kidnapping in the first degree did take a substantial step forward in
abducting another person specifically the [victim] . . . by substantially and
unlawfully confining her movement and restrained [the victim] by the use
of physical force with the intent to inflict physical injury upon her.’’
7
Our review of the petitioner’s posttrial brief supports the habeas court’s
assessment of the petitioner’s Salamon analysis. The relevant portion of
the petitioner’s brief states only the following facts: ‘‘Witness Marcia Wynne
testified at the criminal trial that she heard someone screaming, called the
police from her garage phone, and police arrived within three to five minutes
of her call. . . . St. Pierre . . . testified that he was sitting on a porch
where his friend lived when he heard a woman screaming. [He] testified
that he broke up the physical struggle and restrained the petitioner while
they waited for the police. [He] stated that the police arrived within five to
seven minutes of the encounter. Officer Posada testified that he responded
to a dispatch call around 10 p.m. to 10:30 p.m. on May 8, 2001. [The victim]
testified that she received a phone call from the petitioner around 10:30
p.m. on May 8, 2001, and that soon after, the struggle with the petitioner
ensued. This testimony, paired with . . . Posadas’ testimony demonstrates
that the events occurred close in time.’’ The victim ‘‘testified that the struggle
took place at the door of her apartment building and a wall nearby.’’ (Foot-
notes omitted.)
8
See Luurtsema v. Commissioner of Correction, supra, 299 Conn. 743.
9
The habeas court also determined that the petitioner’s brief failed to
analyze several allegations in count one of his petition, i.e., the petitioner
was convicted for conduct that the legislature did not intend to criminalize
with regard to the attempted kidnapping conviction; plea negotiations were
unreasonably curtailed in light of the change in the interpretation of the
kidnapping statute; and that he is being unreasonably and cruelly punished
for conduct that is, in light of Salamon, no longer a crime in Connecticut.
Moreover, the habeas court concluded that the petitioner presented no
evidence to support the allegations, and the allegations were without merit
and/or were abandoned.
10
On appeal, the petitioner’s description of the events was more inclusive
than the description he included in his posttrial brief in the habeas court.
11
General Statutes § 53a-49 (a) provides: ‘‘A person is guilty of an attempt
to commit a crime if, acting with the kind of mental state required for
commission of the crime, he: (1) Intentionally engages in conduct which
would constitute the crime if attendant circumstances were as he believes
them to be; or (2) intentionally does or omits to do anything which, under the
circumstances as he believes them to be, is an act or omission constituting
a substantial step in a course of conduct planned to culminate in his commis-
sion of the crime.’’
General Statutes § 53a-92 (a) provides in relevant part: ‘‘A person is guilty
of kidnapping in the first degree when he abducts another person and . . .
(2) he restrains the person abducted with intent to (A) inflict physical injury
upon him or violate or abuse him sexually.’’
General Statutes § 53a-91 provides in relevant part: ‘‘The following defini-
tions are applicable to this part:
‘‘(1) ‘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. . . .
‘‘(2) ‘Abduct’ means to restrain a person with intent to prevent his libera-
tion by either (A) secreting or holding him in a place where he is not
likely to be found, or (B) using or threatening to use physical force or
intimidation. . . .’’
12
During the state’s final argument, the prosecutor reminded the jury of
the petitioner’s statement to the police that he went to the victim’s apartment
intending to rape and torture her through the use of handcuffs and bondage
tools, objects that were found on his person at the time of his arrest.
13
On appeal, the petitioner claims that his ineffective assistance of counsel
claim is not governed by Stickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), that requires a petitioner to prove by
a preponderance of evidence that counsel’s performance was so deficient
that counsel was not functioning as counsel guaranteed by the constitution
and that but for counsel’s unprofessional performance there is a reasonable
probability that the result of the proceedings would have been different.
Rather, the petitioner contends that his claim is controlled by McCoy v.
Louisiana, U.S. , 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018). In McCoy,
the United States Supreme Court held that defense counsel overrode his
client’s sixth amendment right to autonomy by admitting the client’s guilt
without the defendant’s consent. Violation of a client’s autonomy constitutes
structural error and is not subject to harmless error analysis. Id.; see also
Leon v. Commissioner of Correction, 189 Conn. App. 512, 208 A.3d 296,
cert. denied, 332 Conn. 909, 209 A.3d 1232 (2019).
The respondent contends that we should decline to review the petitioner’s
client autonomy or McCoy claim because the petitioner did not raise it in
the habeas court, and the habeas court, therefore, did not rule on it. Thus,
the record is inadequate for review. We agree. In Leon, this court held that
a ‘‘petitioner’s attempt to cast his claim as one of client autonomy, rather
than ineffective assistance [as pleaded], is a new invention on appeal which
should not be entertained.’’ (Internal quotation marks omitted.) Id., 521.
Because the petitioner did not plead client autonomy or analyze it in his
posttrial brief in the habeas court, we decline to consider it on appeal.
Moreover, we note that the habeas court issued its memorandum of decision
on March 23, 2018; the United States Supreme Court issued its decision in
McCoy on May 14, 2018. The petitioner, therefore, could not have raised it
in the habeas court.
14
Initially the state was unable to locate the victim. Shortly before trial,
however, her whereabouts were discovered, and she testified.
15
The habeas court found that the petitioner had failed to address the
allegations in (3), (4), and (5) and, therefore, deemed the allegations
abandoned.
16
General Statutes § 53a-13 (a) provides: ‘‘In any prosecution for an
offense, it shall be an affirmative defense that the defendant, at the time
he committed the proscribed act or acts, lacked substantial capacity, as a
result of mental disease or defect, either to appreciate the wrongfulness of
his conduct or to control his conduct within the requirements of the law.’’
17
On June 15, 2001, the trial court, Wollenberg, J., found the petitioner
incompetent to stand trial but that he ‘‘may be’’ restored to competency
after treatment. See State v. Jenkins, 288 Conn. 610, 618–19, 954 A.2d 806
(2008) (person charged with criminal offense ‘‘who is committed solely on
account of his incapacity to proceed to trial cannot be held more than
the reasonable period of time necessary to determine whether there is a
substantial probability that he will attain that capacity in the foreseeable
future’’ [internal quotation marks omitted]). On July 18, 2003, the trial court,
Handy, J., found the petitioner competent to stand trial and understand
the proceedings against him.
18
On cross-examination, Meisler conceded that some mental health profes-
sionals who previously had evaluated the petitioner opined that he was
malingering.
19
Selig also testified that in April, 2001, shortly before the charged offenses,
the petitioner had been hospitalized for a brief period for a psychotic disor-
der. The records indicated that the petitioner had smoked marijuana and
‘‘there was some question at that time as to how much of the problem was
related to marijuana and how much was related to just a basic psychotic
illness.’’
20
The petitioner also asked his counsel to seek a plea deal on the charges
in the attempted kidnapping case. The state was not willing to negotiate a
plea deal at that time.
21
The petitioner testified as follows on cross-examination by the
respondent:
‘‘Q: So [Attorney McKay] did not advise you that you would be conceding
guilty by pursuing the defense of not guilty by reason of mental defect?
‘‘A: He—he did, but I was going to say something as concerning something
else but—
‘‘Q: So you knew that by pursuing that defense, you would essentially be
saying that you were guilty of each of the crimes that you were charged with?
‘‘A: Well, that umm—I—I didn’t think I needed—I had to say that I was
guilty for everything because—I wasn’t so . . . he conveyed that . . . that
guilt would be conceded because of the [not guilty by reason of insanity]
defense you’re not saying that it—it didn’t happen, you’re saying it happened,
but even—but there were things that didn’t happen that—that [I] wish not
to concede to.’’
22
When counsel was asked whether he discussed conceding guilt with
the petitioner, he responded: ‘‘I don’t recall specifically when I would have
discussed it with him, but probably even before the trial. I’d be discussing
that with him as far as going forward on that defense. He—first time he
didn’t want to do it. The second time he wanted that defense, affirmative
defense, so then I would have gone over everything with him.’’