Coltherst v. Comm'r of Corr.

• Decision Date: 02 November 2021
• Docket Number: AC 43864
• Citation: 264 A.3d 1080,208 Conn.App. 470
• Parties: Jamaal COLTHERST v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

208 Conn.App. 470

264 A.3d 1080

Jamaal COLTHERST

v.COMMISSIONER OF CORRECTION

AC 43864

Appellate Court of Connecticut.

Argued September 9, 2021

Officially released November 2, 2021

Michael W. Brown, West Hartford, 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).

Elgo, Cradle and Pellegrino, Js.

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 [petitioner] 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., at 483, 820 A.2d 1024.

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., at 96, 864 A.2d 869.

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....