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    STATE OF CONNECTICUT v. JOSE JUSINO
                (AC 38029)
                 Gruendel, Lavine and Prescott, Js.
     Argued December 8, 2015—officially released March 8, 2016

   (Appeal from Superior Court, judicial district of
               Tolland, Mullarkey, J.)
  Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
  Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Andrew Reed Durham, assistant
state’s attorney, for the appellee (state).
                          Opinion

   LAVINE, J. The defendant, Jose Jusino, appeals from
the judgment of conviction, rendered after a jury trial,
of murder in violation of General Statutes § 53a-54a and
capital felony in violation of General Statutes (Rev. to
2009) § 53a-54b (3).1 Section 53a-54b provides in rele-
vant part: ‘‘A person is guilty of a capital felony who is
convicted of . . . (3) murder committed by one who
has previously been convicted of intentional murder
. . . .’’ At the time of the murder, the defendant was
serving a thirty year sentence after having pleaded guilty
in 2006 to a prior charge of murder in violation of § 53a-
54a. On appeal, the defendant claims that the trial court
(1) deprived him of his constitutional right to due pro-
cess and a fair trial under the fifth, sixth, and fourteenth
amendments by precluding him from introducing evi-
dence at the guilt stage of the capital felony trial to
collaterally attack his prior murder conviction; and (2)
erred in declining to instruct the jury on the affirmative
defense of extreme emotional disturbance. We affirm
the judgment of the trial court.
   The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. Prior to and on July 29, 2009, the defendant was
incarcerated at the Northern Correctional Institution
pursuant to his 2006 conviction of murder in violation
of § 53a-54a. He shared a cell with Reynaldo Robles
(victim). On July 29, 2009, the defendant told Correction
Officer John Latulippe that the victim was ‘‘not waking
up . . . .’’ Correction officers entered the cell and
found the unresponsive victim with his hands bound
with cloth strips torn from bedsheets The victim had
wounds to his chest that spelled out ‘‘King Guala.’’ Guala
was the defendant’s street name, and the defendant
used the word ‘‘King’’ to demonstrate his desire to
change gang affiliations. The medical staff rendered
emergency treatment to the victim and transported him
to Johnson Memorial Hospital in Stafford where he was
pronounced dead on arrival. A state medical examiner,
Frank Evangelista, determined that the death was a
homicide and the cause of death was asphyxia by neck
compression. Evangelista also determined that the
words had been carved into the victim’s chest post-
mortem.
   Correction Officers Tony Williams, Edwin Diaz, and
Chris Blais each testified that the defendant admitted
to them that he killed the victim. The warden, Angel
Quiros, read into evidence the defendant’s inmate
request form in which the defendant admitted that he
killed the victim and wanted to change his gang affilia-
tion. The defendant also gave a written statement to
state police Detective Priscilla Vining, confessing that
he killed the victim. The defendant was charged with
murder in violation of § 53a-54a, and capital felony in
violation of § 53a-54b (3), as he had previously been
convicted of intentional murder. The state intended to
seek the death penalty.
  The trial in this case proceeded in three stages. The
defendant was first tried and found guilty of murder in
violation of § 53a-54a. The capital felony charge was
then tried. The state presented evidence that the defen-
dant previously had been convicted of murder and, thus,
was guilty of a capital felony in violation of § 53a-54b
(3). The jury found the defendant guilty of capital felony.
During the final phase of trial, the penalty phase, the
state sought the death penalty by attempting to prove
as an aggravating factor that the defendant had commit-
ted the murder in an especially heinous, cruel, or
depraved manner. General Statutes § 53a-46a (i) (4).
The jury found that the state had not proven the aggra-
vating factor. On April 8, 2013, the court sentenced the
defendant to life in prison without the possibility of
release.2 After the court denied the defendant’s motion
for a new trial, the defendant appealed. Additional facts
will be set forth as necessary.
                             I
   The defendant claims that the court deprived him of
his constitutional right under the sixth and fourteenth
amendments to present a defense by precluding him
from introducing evidence to collaterally attack his 2006
murder conviction at the guilt phase of his capital felony
trial.3 He asserts that he was entitled to present evidence
to the jury that would show that although he had
pleaded guilty to murder in 2006, he did not have the
specific intent to kill the victim, and therefore was guilty
only of manslaughter. He further argues that the jury
should have been allowed to consider whether he
received effective assistance of counsel in pleading
guilty. He claimed that his attorney had failed to investi-
gate evidence that could have shown that he lacked the
specific intent to kill. The defendant asserts that the
court’s refusal to allow the jury to hear this evidence
infringed on his constitutional right to present a defense
on the charge of capital felony and relieved the state
of its burden to prove that he was guilty of all elements
of the crime beyond a reasonable doubt. We disagree.
   The following additional facts are relevant to this
claim. On May 31, 2006, the defendant, who was repre-
sented by counsel, pleaded guilty to murder in violation
of § 53a-54a and was sentenced to thirty years in prison
on August 23, 2006. On August 15, 2012, the defendant
filed a petition for a writ of habeas corpus alleging,
inter alia, that he was denied the effective assistance
of counsel and was not guilty of murder.4
  During the pretrial proceedings of the present case,
the defendant filed a ‘‘motion to introduce evidence
undermining judgment or for stay of proceedings.’’ The
defendant sought to introduce evidence during the guilt
phase of the capital felony trial to demonstrate that in
2006 he was guilty only of manslaughter because he
lacked the specific intent to commit murder. He also
sought to demonstrate that he was deprived of effective
assistance of counsel when his attorney failed to investi-
gate facts related to the prior murder charge, and, thus,
that he did not knowingly and voluntarily plead guilty.
The defendant also asked the court to delay the trial
until the petition for a writ of habeas corpus was
decided if the court did not grant the motion to under-
mine the prior conviction. The court conducted an evi-
dentiary hearing on the motion.
   The court heard testimony from the defendant’s 2006
trial counsel, Glenn Conway, and reviewed the 2006 plea
and sentencing transcripts. The plea transcript revealed
that the state read into the record that the defendant
was accused of killing David Gerald on July 21, 2005,
in New Haven. Gerald sought to obtain narcotics from
the defendant and the defendant told him to leave. Ger-
ald struck the defendant, and the defendant chased
him into an alley. The defendant fired two gunshots at
Gerald and saw him collapse onto the street. A witness,
Gary Williams, told New Haven police that he heard
the defendant say that he had shot Gerald and hoped
he killed him. The defendant acknowledged that the
facts the state read into the record were true, and the
court accepted his guilty plea.
   At the evidentiary hearing in the present case, the
defendant sought to call Michael Rollins, who was pre-
sent when the defendant shot Gerald. The defendant
proffered that Rollins would testify that the defendant
never said that he hoped he had killed Gerald, but Rol-
lins could not be located. The defendant sought instead
to have Mark Masse, the investigator who interviewed
Rollins, testify about Rollins’ statement. The court ruled
that this was inadmissible hearsay. Conway testified
that he advised the defendant to plead guilty because
the defendant, even if he was able to prove that he was
guilty only of manslaughter with a firearm, likely faced
a lengthier sentence than he would under the plea offer.
Conway did not interview Williams or Rollins. The
defendant called Attorney J. Patten Brown to testify that
Conway had rendered ineffective assistance of counsel.
   On November 17, 2012, prior to the commencement
of the capital felony trial, the court issued its memoran-
dum of decision denying the motion to present evi-
dence. In its memorandum of decision, the court noted
that the habeas court is the usual forum for collaterally
attacking a prior conviction. See Johnson v. Commis-
sioner of Correction, 218 Conn. 403, 412–13, 589 A.2d
1214 (1991). The court recognized, however, that not-
withstanding the general rule precluding collateral
attacks on prior convictions except in habeas proceed-
ings, a conviction obtained in violation of constitutional
rights cannot be used to enhance punishment for a
subsequent conviction. See Burgett v. Texas, 389 U.S.
109, 114–15, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967).
   The court determined that the defendant had failed
to demonstrate that the prior conviction was constitu-
tionally invalid on its face. The record revealed that the
defendant was represented by counsel. It also revealed
that prior to pleading guilty, ‘‘the defendant was aware
of the elements of the crime with which he was charged,
his right to plead not guilty, his right to have a trial
before a judge or jury, his right to have an attorney assist
him at trial, and his right against self-incrimination.’’
Because the defendant was aware of the charge and
his rights, the record indicated that he knowingly and
voluntarily pleaded guilty to the 2005 murder charge.
See State v. Wright, 198 Conn. 273, 283–84, 502 A.2d
911 (1986). The court concluded that the defendant
failed to establish a clear constitutional violation in his
prior conviction. It ruled that during the guilt phase of
the capital felony trial, the defendant would not be
allowed to attempt to undermine his prior conviction
by presenting evidence to the jury that he lacked the
specific intent to commit intentional murder in 2005.
The court also concluded that the defendant’s assertion
regarding the ineffective assistance of counsel did not
permit him to attack the validity of the prior conviction
during the guilt phase of the capital felony trial. The
court stated that the habeas court would be the appro-
priate forum to determine whether the defendant’s
counsel was ineffective regarding the 2005 murder
charge, and regardless, found that the defendant did
not meet his burden under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
to establish that his counsel had rendered ineffective
assistance.
   Prior to analyzing the defendant’s claim on appeal,
we set forth the applicable standard of review and legal
principles. ‘‘We review a trial court’s evidentiary ruling
for abuse of discretion. . . . In a criminal case, [w]hen
defense evidence is excluded, such exclusion may give
rise to a claim of denial of the right to present a defense.
. . . A defendant is, however, bound by the rules of
evidence in presenting a defense . . . . Although
exclusionary rules of evidence should not be applied
mechanistically to deprive a defendant of his rights,
the constitution does not require that a defendant be
permitted to present every piece of evidence he wishes.
. . . The trial court retains the power to rule on the
admissibility of evidence pursuant to traditional eviden-
tiary standards.’’ (Citations omitted; internal quotation
marks omitted.) State v. Romanko, 313 Conn. 140, 148,
96 A.3d 518 (2014).
   ‘‘A person is guilty of a capital felony who is convicted
of . . . (3) murder committed by one who has pre-
viously been convicted of intentional murder . . . .’’
General Statutes (Rev. to 2009) § 53a-54b. ‘‘A guilty plea
is itself a conviction . . . .’’ (Citations omitted; internal
quotation marks omitted.) State v. Domian, 235 Conn.
679, 686, 668 A.2d 1333 (1996), citing Boykin v. Ala-
bama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d
274 (1969). ‘‘[T]he structure of the capital felony statute
. . . makes the former conviction an essential element
of the crime charged. . . . The purpose of § 53a-54b
(3), however . . . is not to define a new type of crime,
but rather to enhance the sentence for an activity that
is already classified as a crime.’’ (Citations omitted;
internal quotation marks omitted.) State v. Jones, 234
Conn. 324, 339, 662 A.2d 1199 (1995).5
   ‘‘Collateral attacks on judgments are not favored.
Every presumption favors the jurisdiction of the court
and the regularity of its processes.’’ State v. Wright,
supra, 198 Conn. 283. Nonetheless, ‘‘a conviction which
has been procured in violation of constitutional rights
cannot be used to increase the punishment which would
ordinarily be permissible.’’ State v. Orsini, 187 Conn.
264, 278, 445 A.2d 887, cert. denied, 459 U.S. 861, 103
S. Ct. 136, 74 L. Ed. 2d 116 (1982). The United States
Supreme Court has determined that a defendant has a
constitutional right to collaterally attack a prior convic-
tion during a federal sentencing proceeding only if the
conviction was obtained in violation of the defendant’s
right to counsel under Gideon v. Wainwright, 372 U.S.
335, 83 S. Ct. 792, 9 L. Ed. 2d 733 (1963). See Custis v.
United States, 511 U.S. 485, 487, 495–97, 114 S. Ct. 1732,
128 L. Ed. 2d 517 (1994). The court noted that a violation
of a defendant’s right to counsel would be apparent
in the judgment of conviction, and limiting collateral
attacks to Gideon violations would facilitate judicial
economy and promote the finality of judgments. Id.,
496–97. Courts have extended the rationale in Custis
to preclude collateral attacks in cases where the prior
conviction serves as an element of the crime charged.
See, e.g., United States v. Gutierrez-Cervantez, 132 F.3d
460, 462 (9th Cir. 1997), cert. denied, 522 U.S. 1083, 118
S. Ct. 869, 139 L. Ed. 2d 766 (1998); State v. Johnson,
38 A.3d 1270, 1278 (Me. 2012). Prior to Custis, our
Supreme Court recognized that ‘‘[i]n those cases where
the use of an earlier conviction has been prohibited,
there has been some indication in the record, e.g., the
absence of a notation of the appearance of counsel,
which raised a presumption that a constitutional right
had been violated. Burgett v. Texas, [supra, 389 U.S.
114–15]. . . . [O]ur review of claims not seasonably
brought to the attention of the trial court is limited,
even when constitutional considerations are involved,
to those instances where the record . . . demonstrates
a deprivation of a fundamental constitutional right.’’
State v. Orsini, supra, 279–80.
   The defendant’s claim is an evidentiary claim dis-
guised as one of constitutional magnitude, as he failed
to demonstrate to the trial court a constitutional invalid-
ity in his prior conviction. The court determined that
the defendant was represented by counsel on the prior
conviction, which, in the context of Custis, is all that
was required under the federal constitution. The court
went beyond the narrow rule in Custis and afforded
the defendant an evidentiary hearing to establish the
invalidity of his prior conviction.6 After hearing evi-
dence and reviewing the transcript of the guilty plea,
the court determined that the defendant knowingly and
voluntarily pleaded guilty and received effective assis-
tance of counsel. The constitutional validity of a prior
conviction is a question of law; United States v. Gutier-
rez-Cervantez, supra, 132 F.3d 462; which is not in the
province of the jury to decide.7 See, e.g., State v. Mos-
back, 159 Conn. App. 137, 160, 121 A.3d 759 (2015).
   The issue, then, is whether the court abused its discre-
tion in precluding the defendant from presenting the
evidence to undermine his prior conviction. We con-
clude that it did not. The evidence that the defendant
sought to present was not relevant to rebut the evidence
the state presented to prove beyond a reasonable doubt
that he previously had been convicted of intentional
murder. The defendant’s claim that the court relieved
the state of its burden to prove this element beyond
a reasonable doubt misconstrues what the state was
required to prove under the capital felony statute. Sec-
tion 53a-54b (3) requires that the state prove that the
defendant previously had been convicted of intentional
murder. This does not mean that the defendant, after
failing to demonstrate that his guilty plea was constitu-
tionally invalid as a matter of law, was entitled to reliti-
gate the facts and circumstances of the prior conviction
by essentially having a habeas trial before the jury. The
defendant’s claim therefore fails.
                             II
   The defendant’s second claim is that the court erred
in refusing to instruct the jury on the affirmative defense
of extreme emotional disturbance prior to its delibera-
tion on the murder charge. We disagree.
   ‘‘The affirmative defense of extreme emotional distur-
bance . . . is authorized by § 53a-54a. Proof of this
defense by a preponderance of the evidence . . . enti-
tles the defendant to a conviction of manslaughter in
the first degree, instead of a conviction of murder. . . .
Section 53a-54a describes the two elements of [the affir-
mative defense of extreme emotional disturbance]: (1)
the defendant committed the offense under the influ-
ence of extreme emotional disturbance; and (2) there
was a reasonable explanation or excuse for the defen-
dant’s extreme emotional disturbance.’’ (Citations omit-
ted; footnote omitted; internal quotation marks
omitted.) State v. Person, 236 Conn. 342, 351, 673 A.2d
463 (1996). The reasonableness of the defendant’s
actions is ‘‘determined from the viewpoint of a person
in the defendant’s situation under the circumstances as
the defendant believed them to be . . . .’’ General Stat-
utes § 53a-54a (a). ‘‘[E]xtreme emotional disturbance
. . . mean[s] that (a) the emotional disturbance is not
a mental disease or defect that rises to the level of
insanity as defined by the Penal Code; (b) the defendant
was exposed to an extremely unusual and overwhelm-
ing state, that is, not mere annoyance or unhappiness;
and (c) the defendant had an extreme emotional reac-
tion to it, as a result of which there was a loss of self-
control, and reason was overborne by extreme intense
feelings . . . .’’ (Internal quotation marks omitted.)
State v. Person, supra, 351 n.15. ‘‘Consideration is given
to whether the intensity of these feelings was such that
[the defendant’s] usual intellectual controls failed and
the normal rational thinking for that individual no
longer prevailed at the time of the act.’’ State v. Elliott,
177 Conn. 1, 10, 411 A.2d 9 (1979).
   ‘‘In determining whether the trial court improperly
refused a request to charge, [w]e . . . review the evi-
dence presented at trial in the light most favorable to
supporting the . . . proposed charge. . . . A request
to charge which is relevant to the issues of [a] case and
which is an accurate statement of the law must be given.
. . . If, however, the evidence would not reasonably
support a finding of the particular issue, the trial court
has a duty not to submit it to the jury.’’ State v. Arroyo,
284 Conn. 597, 607–608, 935 A.2d 975 (2007). ‘‘[A] defen-
dant is entitled to a requested instruction on the affirma-
tive defense of extreme emotional disturbance only if
there is sufficient evidence for a rational juror to find
that all the elements of the defense are established
by a preponderance of the evidence.’’ State v. Person,
supra, 236 Conn. 353.
   The following facts are relevant to this claim. During
the portion of the trial on the murder charge, the jury
heard testimony that the defendant admitted to numer-
ous correction officers and Vining that he had killed
the victim. Vining read into evidence the defendant’s
written confession. The defendant noted that the state-
ment was made voluntarily after he had been apprised
of his rights. In his statement, the defendant stated that
he was annoyed with the victim, who was ‘‘stressing
[him] out, talking about his problems.’’ The defendant
wrote: ‘‘I had it planned in my mind that if he kept on
stressing me out when he got back [from court that
afternoon], I was going to fight him. I knew that [the
victim] had diabetes and I knew he would tire before
me. I figured that he would eventually go down, and
even if he didn’t, I had a razor.’’ The defendant stated
that he was angry that the victim, upon returning from
court, was wearing only one pair of boxer shorts and
that he could see the victim’s penis. The defendant
wrote that he always wore two pairs of boxer shorts
and thought that it was improper for a person to wear
only one pair when sharing a cell with someone.
  The defendant described how he snuck up behind
the victim, attacked him, and rendered him uncon-
scious. He stated: ‘‘I then went to the door of my cell
and looked at the camera and smiled at the camera. I
then put a piece of bedsheet up on the window.’’ The
defendant stated that he initially wanted to cut the
victim’s face, but upon realizing that the victim had a
lot of facial hair, he ‘‘decided to make it simple and
just strangle him instead.’’ The defendant described
tying the victim up and strangling him. At one point the
victim regained consciousness. The defendant put a
towel in his mouth to quiet him and continued to stran-
gle him. The defendant ‘‘put [the victim’s] body on his
bunk to try to get an extra dinner tray.’’ He carved his
nickname ‘‘Guala’’ into the victim’s chest and ‘‘put King
in front of it to send a message that this was my body
and I was changing [gang] affiliations.’’
   He reiterated: ‘‘This wasn’t a gang hit. No one told
me to do this. I did this on my own. I made up my mind
when he went to court that morning that I was going
to hit him, tie him up, cut his face, and tell the guards
to get him out of my cell. I only decided to kill him
after I noticed that his face was full of hair and it wasn’t
going to cut.’’ The jury also heard testimony from Latuli-
ppe, who was the first correction officer to find the
victim in the cell. He testified that the defendant
appeared calm when the officers removed him from
the cell prior to attending to the victim.
   After the victim was removed from the cell, the defen-
dant was placed in the medical housing unit for observa-
tion. He was given a safety gown and blanket as a
precautionary measure, but there was no indication that
the defendant was going to harm himself. In regard to
being held in the medical housing unit and the precau-
tionary measures taken, the defendant asked Williams,
‘‘when did a homicide turn into a suicide?’’
   On the charge of murder in violation of § 53a-54a, the
defendant sought to have the court give a supplemental
instruction to the jury on the affirmative defense of
extreme emotional disturbance. The defendant stated
in his supplemental request to charge that the request
on the affirmative defense was triggered by the testi-
mony of the last witness in the state’s case-in-chief,
correction Officer Andre Cwalina. Cwalina testified that
the defendant was ‘‘happy, excited, [and showed] no
remorse’’ when discussing his attack on the victim.
Cwalina testified that the defendant told him that after
the killing he ‘‘felt like a lion at the zoo. That he liked
the feeling he got afterward. He said [he was] going to
do it again.’’
   The court declined to give the requested jury instruc-
tion, noting that ‘‘the only evidence we seem to find
looks to be that—before the crime or during the crime
that’s alleged here, was that the victim was annoying,
bothered [the defendant], telling him stories about his
family, complaining about his inability to see his son
and walking around the cell in just one pair of boxers,
not two.’’
   On the basis of our review of the record, we conclude
that the court did not err in determining that there was
insufficient evidence for a rational juror to find that the
defendant had established the affirmative defense of
extreme emotional disturbance by a preponderance of
the evidence. In construing the evidence in the light
most favorable to giving the charge, there was evidence
that at the time of the killing, the defendant was angry
that the victim complained to him about his legal and
family problems, and wore only one pair of boxer shorts
in the cell they shared. This amounts to nothing more
than ‘‘mere unhappiness or annoyance.’’
   Furthermore, there was no showing that the defen-
dant’s self-control and reason were overcome by
extreme emotion; in fact, the evidence, even when
viewed in the light most favorable to giving the charge,
suggests the opposite, given the defendant’s calculated,
cruel and cold-blooded words and actions. The defen-
dant’s statement demonstrates that he planned to attack
the victim and reasoned through each step in this
vicious killing. He considered the effect the victim’s
diabetes might have on his ability to defend against the
attack, and he stashed a razor in case the victim tried
to fight back. The defendant covered the cell window
so that the correction officers would not be able to see
him attacking the victim and intervene. The defendant,
in his own words, made the decision to kill the victim
not because he was overcome by extreme emotion, but
because the victim had too much facial hair for the
defendant to cut the victim’s face with his razor.8 His
statement demonstrated that he maintained his ability
to reason. He used the victim’s murder as an opportu-
nity to show his desire to change gang affiliations and
hoped to use the murder to obtain an extra meal prior
to the victim’s body being removed from his cell. This
is in addition to the defendant’s exhibiting conscious-
ness of guilt by telling several correction officers and
Vining that he killed the victim. Even when viewed in the
light most favorable to giving the charge, the evidence
demonstrates that he carefully and coolly planned the
attack on the victim, and his self-control and ability to
reason were not overcome by extreme emotion. ‘‘[E]vi-
dence demonstrating a defendant’s high degree of self-
control or the planned and deliberate character of the
underlying attack, as well as any postcrime conduct
suggesting that the defendant was in full command of
his or her faculties and had consciousness of guilt, is
entirely inconsistent with an extreme emotional distur-
bance defense . . . .’’9 (Citation omitted; internal quo-
tation marks omitted.) People v. King, 124 App. Div. 3d
1064, 1066, 1 N.Y.S.3d 569, leave to appeal denied, 25
N.Y.3d 1073, 34 N.E.3d 376, 12 N.Y.S.3d 625 (2015). The
court therefore properly declined to give the jury an
instruction on extreme emotional disturbance.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     The title of § 53a-54b has been amended and is now ‘‘murder with special
circumstances.’’ Public Acts 2012, No. 12-5, § 1. We refer in this opinion,
however, to the revision of § 53a-54b that was in effect at the time of the
events at issue.
   2
     The court vacated the defendant’s murder conviction pursuant to State
v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013). The court noted that the
conviction would be reinstated if the capital felony conviction was reversed
on appeal, and, if so, the defendant would serve a sixty year sentence
consecutive to the thirty year sentence on the 2006 murder conviction.
   3
     The defendant’s claim is based exclusively on the United States constitu-
tion. He therefore does not seek relief under the Connecticut constitution.
See State v. Reid, 254 Conn. 540, 553 n.6, 757 A.2d 482 (2000).
   4
     The record does not contain information about the status of this
habeas petition.
   5
     We decline to address the defendant’s claim that our Supreme Court’s
interpretation of § 53a-54b in Jones was incorrect. ‘‘As an intermediate
appellate court, we are bound by Supreme Court precedent and are unable
to modify it . . . .’’ State v. Smith, 107 Conn. App. 666, 684, 946 A.2d 319,
cert. denied, 288 Conn. 902, 952 A.2d 811 (2008). The defendant’s argument
is encapsulated by Justice Borden’s concurring and dissenting opinion in
Jones. See State v. Jones, supra, 234 Conn. 364–68 (Borden, J., concurring
and dissenting).
   6
     The defendant cites to several cases where courts have allowed for
collateral attacks beyond the violation of the right to counsel and asserts that
he was entitled to present the evidence at issue because of the heightened
requirement for reliability in death penalty cases. This claim fails because
the defendant had the opportunity to challenge his prior conviction in an
evidentiary hearing prior to trial and still failed to meet his burden in demon-
strating that it was constitutionally invalid. Furthermore, none of the cases
the defendant cites supports his assertion that he was entitled to collaterally
attack his prior conviction before a jury.
   7
     The defendant’s corollary argument that he was entitled to have the jury
consider the alleged failure of his 2006 trial counsel to investigate mitigating
evidence and its effect on the reliability of his guilty plea fails for the
same reason. It is not within the province of the jury to decide whether a
defendant’s counsel has been effective. See, e.g., State v. Parrott, 262 Conn.
276, 285–86, 811 A.2d 705 (2003) (stating that claims of ineffective assistance
of counsel are almost without exception determined by habeas court, and
in rare instance such claim is reviewed on direct appeal, it is when claim
is question of law with adequate record for review). The court did not abuse
its discretion in refusing to permit the jury to consider the evidence about
the effectiveness of the defendant’s trial counsel.
   8
     The defendant cites that in State v. Person, supra, 236 Conn. 344–45,
an instruction on the affirmative defense was warranted even though the
defendant expressly disavowed being under the influence of an extreme
emotional disturbance. Person is distinguishable because there was circum-
stantial evidence supporting the affirmative defense. For example, in that
case, one witness testified that the defendant appeared ‘‘ ‘out of it.’ ’’ Id.,
356. A police officer testified that the defendant was ‘‘was very emotional.
He was crying and repeating over and over, ‘just lock me up, just lock me
up.’ ’’ Id. In the present case there is no such circumstantial evidence, even
when viewed in the light most favorable to the defendant, that supports the
giving of an instruction on extreme emotional disturbance. Furthermore,
in Person, the defense presented lay witness testimony in support of the
defendant’s claim that he acted under an extreme emotional disturbance.
In the present case, the defendant relied solely on evidence produced during
the state’s case-in-chief.
   9
     The defendant argues that the jury should have been allowed to consider
that he acted under an extreme emotional disturbance due to his hatred
of ‘‘snitches, rapists, and homos[exuals].’’ Correction Officer Ana Claudio
testified that the defendant made that statement one week after the killing.
The defendant stated that he refused to answer Vining’s questions about
whether he was afraid of the victim and why he was bothered by the victim’s
having worn only one pair of boxer shorts. The defendant also asserts that
the jury could infer that he acted under an extreme emotional disturbance
because Blais testified that the defendant had a distant stare after the killing,
and Vining and several correction officers testified that the defendant was
laughing and making jokes after the killing. Even when construing this
evidence in the light most favorable to giving the charge, it does not change
our analysis that the defendant failed to sufficiently establish that a rational
juror could conclude by a preponderance of the evidence that he was under
the influence of an extreme emotional disturbance that caused the loss of
his self-control at the time he killed the victim.
