Bryant Ebron v. Warden, State Prison (2012)

MEMORANDUM OF DECISION

This habeas corpus proceeding was tried to the court on December 19, 2011.   The petitioner, Bryant Ebron, seeks habeas corpus relief from incarceration resulting from his conviction, after trial, of manslaughter in the first degree, for which crime he received a sentence of thirty-two years imprisonment.   The petitioner claims that his special public defender, Attorney John Stawicki (defense counsel), rendered ineffective assistance to him at trial.

At the habeas trial, the parties agreed that the court should consider the arguments set forth in their memoranda of law (see # # 114, 115) in lieu of oral argument.   After consideration, the court issues this memorandum of decision.

I. Background

In the Supreme Court's decision on the petitioner's appeal from his conviction at trial, the following summary of the facts which the jury reasonably could have found, and of the procedural history, is set forth:  “Shortly after midnight on November 18, 2003, Tameika Moore went to visit a friend who lived in an apartment at 784–786 Capitol Avenue in Hartford.   When she arrived at the apartment, Moore was surprised to find the victim, nineteen year old Shomari Greene, there visiting that same friend.   Moore asked the victim to leave and proceeded to escort him down the stairs and out of the building.   While passing through the first floor hallway of the building, Moore and the victim encountered Lawanne Harris (Lawanne), the defendant's girlfriend, who lived in an apartment off that hallway with the defendant, her mother, Yolanda Harris (Yolanda), and her four year old sister, Destiny.   The victim and Lawanne argued in the hallway for approximately thirty minutes, and the defendant and Yolanda subsequently joined in the altercation after Lawanne summoned them to tell them about a person who was ‘disrespecting’ her.   Thereafter, the defendant and the victim proceeded to threaten each other, with the victim, who was visibly intoxicated, ․ stating that he had ‘people, too’ and would come back to ‘shoot up the place.’   The defendant then pointed a silver revolver at the victim and pulled the trigger, but the gun failed to fire.   Moore and the victim then left the building.

“Shortly thereafter, however, the victim walked back to the apartment building, and punched a hole in the glass adjacent to the building's front door in an attempt to open that door from the inside, because it had locked automatically behind him.   After the victim reentered the front hallway, the defendant then shot the victim in the face with the revolver, ․ causing his death ․ The defendant then fled from the scene by jumping out of the kitchen window of his apartment into the alley between buildings, pausing in the process to point his gun at Maria Ayala, a neighbor who had heard the initial altercation from her apartment, and then had heard the gunshot after leaving her apartment and seeing the victim reenter the building ․

“Thereafter, the state charged the defendant with murder in violation of General Statutes § 53a–54a(a).   The defendant elected a jury trial, and a jury was selected before the trial court, Espinosa, J. The case was then tried to the jury before the trial court, Mullarkey, J. The jury rejected the defendant's claim of self-defense and returned a verdict finding him not guilty of murder, but guilty of the lesser included offense of intentional manslaughter with a firearm in violation of § 53a–55a(a).   Judge Mullarkey then rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to thirty-two years imprisonment.”  (Footnotes omitted.)  State v. Ebron, 292 Conn. 656, 659–61, 975 A.2d 17 (2009), overruled in part on other grounds by State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011).¹

II. Discussion

The Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance of counsel claims in habeas corpus matters.   See Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991);  Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).  “First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.”  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“Claims of ineffective assistance during a criminal proceeding must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance ․” (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Jarrett v. Commissioner of Correction, 108 Conn.App. 59, 70, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008).  “It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test.   A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier.”  (Internal quotation marks omitted.)  Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).

“The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment.”  (Internal quotation marks omitted.)  Jarrett v. Commissioner of Correction, supra, 108 Conn.App. 70.   In this regard, “[j]udicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ․ 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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”  (Internal quotation marks omitted.)  Bryant v. Commissioner of Correction, 290 Conn. 502, 512–13, 964 A.2d 1186, cert. denied, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009) (quoting Strickland v. Washington, supra, 466 U.S. 688–90).

“It is axiomatic that the habeas court, in its role as finder of fact, [is] the sole arbiter of the credibility of the witnesses and the weight to afford their testimony.”  (Internal quotation marks omitted.)  Miller v. Commissioner of Correction, 116 Conn.App. 357, 365, 976 A.2d 6, cert. denied, 293 Conn. 930, 980 A.2d 915 (2009).

A. Claims Concerning Tameika Moore

In his amended petition (# 106), subparagraphs 12a and b, the petitioner alleges that defense counsel did not adequately inform him of the witnesses against him, since, if the petitioner knew of Moore, he would have accepted the State's plea offer of twelve years;  and that defense counsel failed to ask for a recess to discuss her potential testimony and petitioner's options at that time.   In addition, in paragraph 12e, he alleges that defense counsel failed to request a jailhouse informant jury instruction concerning Moore, in accordance with State v. Patterson, 276 Conn. 452, 469–70, 886 A.2d 777 (2005) (trial court is required to give special credibility instruction for jailhouse informant who has been promised benefit in exchange for testimony), asserting that she was an informant who had been promised a benefit from the State in return for testifying, giving her a powerful incentive to testify falsely to accuse him.

The record reflects that Moore was identified during voir dire as a State's witness on December 5, 2006, more than one month before evidence began on January 8, 2007.   See Resp. Exhibit D, transcript, p. 20.   Also, she was disclosed on the State's witness list, dated January 3, 2007.   See Resp. Exhibit A, p. 2.

In his testimony at the trial of his habeas petition before this court, the petitioner acknowledged that he was not paying attention when Tameika Moore's name was read to prospective jurors during jury selection as a potential witness.   The petitioner also stated that when the victim initially came into the building, he was with two women;  thus, prior to the shooting the petitioner knew that two females initially were with the victim.   He also testified that Moore was the only criminal trial witness who testified that he had a gun in the first confrontation before the victim returned later to break into the building.

Moore testified on January 16, 2007, on the fourth day of trial.   She testified she was standing next to the victim when the petitioner pulled out a silver revolver, pointed it at the victim, and pulled the trigger, but nothing happened.   She and the victim then ran out of the building.   See Petitioner Exhibit 4, pp. 14–15.   She testified that the first time she met the State's attorney was in the week prior to her testimony.   See Petitioner Exhibit 4, p. 18.

The court credits defense counsel's testimony, in which he stated that he advised the petitioner about Moore prior to her trial testimony, and that he engaged an investigator to locate her, but was unsuccessful.

On the same day that Moore testified, January 16, 2007, another trial witness, Margaret Clarke, testified that the petitioner had confessed to her that he had shot the victim.   See Petitioner Exhibit 4, p. 42.   As the Supreme Court noted, “Moore's testimony was not by itself the linchpin of the state's case because she did not identify the defendant as the shooter and much of her testimony about the altercation was corroborated by [other witnesses], as well as the defendant's confession to Margaret Clarke.”  State v. Ebron, supra, 292 Conn. 676 n.19.

The petitioner relies on a September 26, 2007 letter from defense counsel (Petitioner's Exhibit 9), which asserts that he and petitioner's former counsel, from the Public Defenders Office, had provided reports naming Moore as a witness, which the petitioner asserts is wrong, since she was not identified by name until later.   In view of the evidence, cited above, showing that the petitioner was apprised of Moore in advance of her testimony, this contention is unavailing.

The petitioner saw Moore with the victim on the night of the incident.   Even if he did not know her by name, he knew that she had been at the scene of the incident and that she was a potential trial witness to events which occurred that night.   His claim that he would have accepted the State's plea offer had he known she would testify is not credible.

In view of the late stage of the proceedings at which Moore testified and the other evidence presented against him at trial, it is speculation to consider that the state's pre-trial offer would have been available to the petitioner by the time Moore testified on direct examination.   The petitioner was advised, well in advance of trial, that the State's pre-trial offer of a twenty-year sentence, suspended after he served ten years, in all likelihood would not be renewed after being rejected.   The petitioner rejected that offer.   See Resp. Exhibit F (transcript of August 15, 2006), pp. 2–3.  “It is well established that, in a claim of ineffective assistance of counsel, [m]ere conjecture and speculation are not enough to support a showing of prejudice.”  (Internal quotation marks omitted.)  Elsey v. Commissioner of Correction, 126 Conn.App. 144, 166, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).

The petitioner has not shown that prejudice arose from the claimed error of failing to seek a recess.   The court finds that the petitioner knew that Moore would be called as a witness and proceeded to trial anyway, and that defense counsel informed the petitioner about her before she testified.

With regard to the petitioner's allegation that defense counsel failed to request a special credibility jailhouse informant instruction in accordance with State v. Patterson, supra, it is evident that Moore was not a jailhouse informant.   While she was incarcerated at the time she testified, and the prosecutor promised to make a good faith effort to have her released on bond in exchange for her testifying, she was not a “jailhouse informant” since it is not alleged that the petitioner made an incriminating statement to her in jail or at any time.   Rather, she was an eyewitness who was incarcerated at the time of trial.   See Petitioner Exhibit 4, pp. 18–19.

“[A] classic jailhouse informant is a witness who has testified that the defendant has confessed to him or had made inculpatory statements to him while they were incarcerated together.”  State v. Diaz, 302 Conn. 93, 99 n.4, 25 A.3d 594 (2011).  “Testimony by a jailhouse informant about a jailhouse confession is inherently suspect because of the ease with which such testimony can be fabricated, the difficulty in subjecting witnesses who give such testimony to meaningful cross-examination and the great weight that juries tend to give to confession evidence ․ In contrast, when a witness testifies about events surrounding the crime that the witness observed, the testimony can be compared with the testimony of other witnesses about those events, and the ability of the witness to observe and remember the events can be tested.   Accordingly, cross-examination and argument by counsel are far more likely to be adequate tools for exposing the truth in these cases than in cases involving jailhouse confessions.”  (Citations omitted;  internal quotation marks omitted.)  Id., 109–10.   In State v. Diaz, supra, 302 Conn. 111, the Supreme Court noted “that the defendant has not cited a single case in which a court has squarely held that a special credibility instruction is required whenever a witness is involved somehow in the criminal justice system and, therefore, has a potential personal interest in testifying ․ We therefore decline the defendant's request that we exercise our supervisory powers to instruct the trial courts that they must give a special credibility instruction in every such case.”

Since Moore was not a jailhouse informant, defense counsel's representation cannot be considered ineffective for failure to request an instruction which was unsupported by the facts in the trial record.   See State v. Lynch, 287 Conn. 464, 471, 948 A.2d 1026 (2008) (evidence must warrant instruction).

B. Self–Defense

In paragraph 12c of the petition, the petitioner alleges that defense counsel failed to call him to testify to explain the defense of self-defense adequately to the jury.   He also argues that, while it is understandable that, initially, defense counsel would not want the petitioner to testify when one of his defenses was that he was not the shooter, after Moore's and Clarke's testimony, the strategy should have changed and the petitioner should have testified that he could not wait for police to arrive and that he had to protect himself, his family, and his home.   In addition, in paragraph 12d, the petitioner alleges that defense counsel failed to make a convincing argument to the jury on self-defense, in that he should have made the same argument he later made when the petitioner was sentenced.

The petitioner did not testify at the criminal trial.   In his habeas trial testimony, the petitioner stated that he had a previous criminal record, including three felony convictions, for larceny, and for narcotics-related offenses.   He acknowledged that, if he had testified at the criminal trial, he would have had to admit that he shot the victim.

In essence, the petitioner now claims that defense counsel should have abandoned the defense that the petitioner was not the shooter and called him to testify about self-defense.  “One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence.”   (Internal quotation marks omitted.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 584, 941 A.2d 248 (2008).

Concerning self-defense, General Statutes § 53a–19(a) provides, in relevant part, “a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose;  except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

“[S]elf-defense, as defined in § 53a–19 (a) ․ is a defense, rather than an affirmative defense ․ Whereas an affirmative defense requires the defendant to establish his claim by a preponderance of the evidence, a properly raised defense places the burden on the state to disprove the defendant's claim beyond a reasonable doubt ․ Consequently, a defendant has no burden of persuasion for a claim of self-defense;  he has only a burden of production.   That is, he merely is required to introduce sufficient evidence to warrant presenting his claim of self-defense to the jury ․ This burden is slight, however, and may be satisfied if there is any foundation in the evidence [for the defendant's claim], no matter how weak or incredible ․ Once the defendant has done so, it becomes the state's burden to disprove the defense beyond a reasonable doubt.”  (Citations omitted;  emphasis in original;  footnotes omitted;  internal quotation marks omitted.)  State v. Clark, 264 Conn. 723, 730–31, 826 A.2d 128 (2003).

The strategic decision to advise the petitioner not to testify properly was supported on several bases.   First, if he had testified, he would have had to admit that he shot the victim, negating one avenue of defense, that he was not the shooter.   No eyewitness identified the petitioner as the shooter.

Second, the petitioner's credibility would have been subject to impeachment based on his prior felony history.   For example, a felony conviction for larceny “bears directly on the credibility of the witness-defendant.”  State v. Crumpton, 202 Conn. 224, 229, 520 A.2d 226 (1987).

Third, if he had testified, the petitioner would have been subject to cross-examination on his statement to Clarke that he shot the victim because the victim was “talking shit,” and was “messing with Lawanne,” see Petitioner Exhibit 4, p. 42, not in self-defense.   As noted above, Lawanne Harris was the petitioner's girlfriend.   He also would have been subject to cross-examination about Clarke's testimony concerning the petitioner's statement that he requested Clarke to perform a wedding of Harris and the petitioner so that Harris could not be forced to testify against him.   See Petitioner Exhibit 4, p. 46.

Fourth, three other witnesses supported the self-defense theory.   Moore confirmed that the victim stated that he was going to come back to the building to “shoot up the place.”   See Petitioner Exhibit 4, p. 30.   Lawanne Harris testified as a witness for the petitioner, that the victim made a statement that “he was going to gun the building down.”   See Petitioner Exhibit 4, p. 74.   She also stated that the victim broke a window with his fist, reached in, and unlocked the door to enter the apartment.   See Petitioner Exhibit 4, p. 73.   Henry Rivera, another witness called by the defense, who also lived in the same building, testified that he thought that the victim was drunk or high on drugs and was belligerent.   See Petitioner Exhibit 5, pp. 11–12.   He also stated that the victim threatened “to come back and blow the place up, he was going to shoot us up.”   See Petitioner Exhibit 5, p. 13.   He also testified that the victim “was strong.   I was scared for myself, and I don't know about Lawanne and Yolanda [Lawanne Harris's mother] or Brian [the petitioner], but if I had a kid inside my apartment, I'd be scared for that child too.”   See Petitioner Exhibit 5, pp. 31–32.

Under these circumstances, the petitioner has not shown that his testimony would have been helpful in establishing the asserted defense.   See Vines v. Commissioner of Correction, 94 Conn.App. 288, 296, 892 A.2d 312, cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006).   Concerning self-defense, the “petitioner has not demonstrated that [defense counsel's] performance was outside the wide range of professionally competent assistance articulated in Strickland ․ In Johnson v. Commissioner of Correction, 222 Conn. 87, 96, 608 A.2d 667 (1992), our Supreme Court construed the performance prong of Strickland, stating that ‘[s]trategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable ․’ ‘[T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’  Strickland v. Washington, supra, 466 U.S. 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).”  (Citation omitted;  internal quotation marks omitted.)  Crocker v. Commissioner of Correction, 126 Conn.App. 110, 131, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011).   The petitioner has not overcome the presumption of sound trial strategy, here that not testifying helped to preserve the avenue of defense that he had not shot the victim, while also pursuing the alternative defense of self-defense, through the testimony of others.²

As to defense counsel's closing argument, the court credits defense counsel's testimony, in which he explained that a defense counsel has more latitude in making a sentencing argument to the court than in closing argument to the jury.  “A sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial ․ To arrive at a just sentence, a sentencing judge may consider information that would be inadmissible for the purpose of determining guilt ․ Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial.   Rather, judges may consider a wide variety of information ․ Consistent with due process the trial court may consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the convicted person's life and circumstance ․ It is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come ․ The trial court's discretion, however, is not completely unfettered.   As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability.”  (Citations omitted;  internal quotation marks omitted.)  State v. Huey, 199 Conn. 121, 126–27, 505 A.2d 1242 (1986).

Thus, at sentencing, defense counsel argued to the court circumstances from his own personal experience living in what he termed a “transitional neighborhood” in Bridgeport.   See Petitioner's Exhibit 11, p. 19.   He described incidents where the police never arrived and he and others, using baseball bats, chased away people who were engaging in criminal behavior.   See Petitioner's Exhibit 11, pp. 19–20.

In closing argument, “[c]ounsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them ․ Counsel may not, however, comment on or suggest an inference from facts not in evidence.”   (Citation omitted;  emphasis in original;  internal quotation marks omitted.)   State v. Prioleau, 235 Conn. 274, 320, 664 A.2d 743 (1995).   Defense counsel could not have properly made an argument to the jury based upon his recollection of events from his own personal life, since it was not part of the evidentiary record of the criminal trial.

As noted above, his closing argument to the jury was effective, in that the jury acquitted the petitioner of murder.   The petitioner has not shown that defense counsel rendered ineffective assistance in his closing argument to the jury concerning self-defense.

C. Duty to Retreat

The petitioner also alleges, in paragraph 12f of the petition, that defense counsel failed to “[r]aise the issue of retreat more forcefully in front of the jury.”  “The retreat doctrine is codified at General Statutes ․ § 53a–19(b), ․ which provides in relevant part that ‘a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a–100 ․’ Unlike the self-defense principles set forth in subsection (a) of § 53a–19, which impose an objective-subjective test;  ․ the duty to retreat set forth in subsection (b) imposes only a subjective requirement ․ [and] requires both that a retreat in complete safety be available and that the defendant know of it.”  (Emphasis in original, footnote omitted;  internal quotation marks omitted.)  State v. Ebron, supra, 292 Conn. 686.

In closing, defense counsel argued that the petitioner was faced with a “raging bull” who was threatening to shoot up the place and that the petitioner's girlfriend, her mother, and a young girl were in danger also.   He argued that the petitioner was not a murderer;  rather, he was “a hero.”   See Petitioner Exhibit 6, pp. 29–31.   Thus, in effect, he argued that petitioner had no duty to retreat.   The court charged the jury on the duty to retreat.   Again, as to this aspect of counsel's closing, the petitioner has not overcome the presumption that, under the circumstances, the challenged action may be considered sound trial strategy.   See Crocker v. Commissioner of Correction, supra, 126 Conn.App. 131.

D. Defense of Premises

The petitioner alleges, in paragraph 12g of the petition, that defense counsel failed to request a jury instruction on defense of premises.   In State v. Ebron, supra, 292 Conn. 695, the court stated that “the evidence in the present case might well have warranted this instruction, had the defendant requested it appropriately.”  General Statutes § 53a–20 concerns the use of physical force in defense of premises.³

In his testimony, defense counsel credibly explained that he made a tactical decision not to complicate the self-defense theory by adding defense of premises.   He credibly testified that he viewed self-defense as a stronger defense than defense of premises.   The petitioner has not overcome the presumption that, under the circumstances, the challenged action may be considered sound trial strategy.   See Crocker v. Commissioner of Correction, supra, 126 Conn.App. 131.

E. Correspondence Between Petitioner and Clarke

In the petition, paragraph 12h, the petitioner alleges that counsel failed to review and submit letters between himself and Margaret Clarke in order to impeach her credibility.   The letters were not submitted in evidence before this court.   The petitioner's brief (see page 15 thereof) contains no argument as to this aspect of the petition.

Defense counsel credibly explained that he would have used the letters if they were helpful.   The court does not credit the petitioner's vague testimony that they would have impeached Clarke's credibility.   The petitioner has not proved this aspect of the petition.

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus is denied.   Judgment shall enter for the respondent.   Petitioner has thirty (30) days to submit a judgment file.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. State v. Kitchens, supra, 299 Conn. 448, overruled the Supreme Court's holding in State v. Ebron, supra, 292 Conn. 656, only as follows:  “to the extent that it holds that a claim of an improper jury instruction is reviewable under State v. Golding (213 Conn. 233) only if the instructional error has not been induced or invited by the defense, even if the defense fails to object to the instruction or otherwise demonstrates by conduct that it is satisfied with the instruction as given, overruled.”.  FN1. State v. Kitchens, supra, 299 Conn. 448, overruled the Supreme Court's holding in State v. Ebron, supra, 292 Conn. 656, only as follows:  “to the extent that it holds that a claim of an improper jury instruction is reviewable under State v. Golding (213 Conn. 233) only if the instructional error has not been induced or invited by the defense, even if the defense fails to object to the instruction or otherwise demonstrates by conduct that it is satisfied with the instruction as given, overruled.”

FN2. The petitioner also presented an expert witness, Attorney Leon Kaatz, who opined, based on review of documents, that he would have had the petitioner testify at the criminal trial.   On cross-examination, he acknowledged that he had never spoken to the petitioner, he had not reviewed the petitioner's criminal history, and did not know how the petitioner would do as a witness.   In view of the very general and limited bases for his opinion, the court discounts it..  FN2. The petitioner also presented an expert witness, Attorney Leon Kaatz, who opined, based on review of documents, that he would have had the petitioner testify at the criminal trial.   On cross-examination, he acknowledged that he had never spoken to the petitioner, he had not reviewed the petitioner's criminal history, and did not know how the petitioner would do as a witness.   In view of the very general and limited bases for his opinion, the court discounts it.

FN3. Section 53a–20 provides, “A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises;  but he may use deadly physical force under such circumstances only (1) in defense of a person as prescribed in section 53a–19, or (2) when he reasonably believes such to be necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes such to be necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in section 53a–100, or place of work, and for the sole purpose of such prevention or termination.”.  FN3. Section 53a–20 provides, “A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises;  but he may use deadly physical force under such circumstances only (1) in defense of a person as prescribed in section 53a–19, or (2) when he reasonably believes such to be necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes such to be necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in section 53a–100, or place of work, and for the sole purpose of such prevention or termination.”

Shapiro, Robert B., J.