154 Conn.App. 78
Conn. App. Ct.2014Background
- Khari Miller was convicted by a jury in 2000 of murder and possession of a weapon in a motor vehicle; this court affirmed on direct appeal.
- At trial Miller did not testify; police had recovered a gun and he gave a statement to Detective St. Pierre implicating events leading to the shooting.
- Miller filed a third amended habeas petition alleging ineffective assistance of trial counsel (failure to call Miller to testify and failure to object to the jury charge on intent) and ineffective assistance of appellate counsel (failure to raise instructional error on intent).
- The habeas court (Cobb, J.) denied relief and denied certification to appeal; Miller sought certification under Conn. Gen. Stat. § 52-470(g).
- The Appellate Court held the habeas court abused its discretion in denying certification to appeal (Lozada factors) but affirmed the habeas judgment on the merits, concluding Miller failed to prove deficient performance or prejudice under Strickland.
Issues
| Issue | Plaintiff's Argument (Miller) | Defendant's Argument (Commissioner) | Held |
|---|---|---|---|
| Whether denial of certification to appeal was an abuse of discretion | The issues (ineffective assistance claims) were debatable among jurists and deserved review | Denial was proper because claims lacked merit | Abuse of discretion: certification should have been granted (court proceeded to merits) |
| Trial counsel ineffective for advising Miller not to testify (self‑defense) | Miller’s testimony was essential to establish subjective belief and retreat ability; counsel’s advice prevented production of critical evidence | Counsel reasonably advised against testifying to avoid exposing inconsistencies; decision was strategic and Miller knowingly waived testimony | Performance not deficient: counsel’s advice fell within reasonable strategy; claim fails without showing prejudice |
| Trial counsel ineffective for failing to object to trial court’s recitation of full statutory definition of intent | Reading the "engage in conduct" language could have let jury convict on general intent (shooting) rather than specific intent to kill | Although the court recited the broader definition, the charge as a whole repeatedly and correctly instructed on specific intent to cause death | No prejudice: viewing charge in totality, not reasonably possible jury was misled; failure to object not shown to have affected outcome |
| Appellate counsel ineffective for not raising instructional error on direct appeal | Zitser should have challenged the intent instruction on appeal; failure deprived Miller of appellate relief | Given the overall correctness of the charge, an appeal on that ground was unlikely to succeed; reasonable appellate strategy to forgo it | Performance not deficient: reasonable to decline raising an issue unlikely to prevail; claim fails |
Key Cases Cited
- Simms v. Warden, 230 Conn. 608 (Conn. 1994) (adopts Lozada factors for reviewing denial of certification to appeal in habeas context)
- Lozada v. Deeds, 498 U.S. 430 (U.S. 1991) (framework for determining whether habeas court abused discretion denying certification)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑pronged test for ineffective assistance of counsel)
- State v. Holmes, 75 Conn. App. 721 (Conn. App. 2003) (error in reading full § 53a‑3(11) language may not be dispositive; charge must be viewed as a whole)
- State v. Peeler, 271 Conn. 338 (Conn. 2004) (jury instructions must be considered in totality; reversal only if reasonably possible that jury was misled)
- State v. Miller, 67 Conn. App. 544 (Conn. App. 2001) (appellate decision affirming Miller’s conviction)