RAMEY v. COMMISSIONER OF CORRECTION

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Appellate Court of Connecticut.

Ryan RAMEY v. COMMISSIONER OF CORRECTION.

No. 34367.

Decided: May 13, 2014

ALVORD, KELLER and PELLEGRINO, Js. Michael D. Day, for the appellant (petitioner). Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, senior assistant state's attorney, for the appellee (respondent).

The petitioner, Ryan Ramey, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly concluded that he was not deprived of the effective assistance of trial counsel. Specifically, the petitioner claims that his counsel rendered ineffective assistance by failing to raise the issue of intoxication to negate an element of the crime of which he was convicted at the underlying criminal trial. We dismiss the petitioner's appeal.

The relevant facts and procedural history are set forth in this court's decision disposing of the petitioner's direct appeal. “The [petitioner] lived in a first floor apartment in Naugatuck from March, 2004, to October, 2006. All six apartments in the building had tenants at the time. In the late morning of October 13, 2006, the [petitioner] telephoned Samantha Squires, his former fiancee and the mother of his two children, and indicated a desire to commit suicide. In response, Squires called the police and asked them to check on him. When the police arrived at the apartment building, they saw that a window on the first floor had been punched out and broken glass was hanging from it. Rather than entering the building, the police decided to attempt to make telephone contact with the [petitioner]. At 11:25 a.m., the police telephoned the [petitioner] at a number provided by Squires. The [petitioner] answered but immediately hung up once the police officer identified himself. At 11:31 a.m., the other first floor tenant, who was nervous because she had heard breaking noises coming from the [petitioner's] apartment for several hours, left the premises in her car. The police continued to call the [petitioner's] telephone number, but he would not converse with them.

“A police officer reported seeing a person moving back and forth inside the [petitioner's] apartment at 12:04 p.m. At 12:15 p.m., the [petitioner] answered a telephone call from a police officer, threatened to jump out a window if the police called again, and then hung up. The officer telephoned again at 12:20 p.m., but the call went straight to voice mail, as did all subsequent calls. Another police officer reported seeing smoke inside the building at 12:22 p.m. At 12:25 p.m., he saw the [petitioner], who was coughing, climb onto the fire escape through a back window. After the officer asked him to come down, the [petitioner] reentered the building and closed the blinds and one of the windows. The officer then reported at 12:31 p.m. that the fire had died down. At 12:38 p.m., however, he reported that the fire had regained force. Thereafter, the fire became progressively worse, melting the blinds and roaring. Rescue workers waited outside the building because they did not know the [petitioner's] location and they feared for their own safety. At 1:37 p.m., the [petitioner] fell from a third story window, at which time the police had to physically restrain him while placing him under arrest. Firefighters immediately began to suppress the fire. While they were inside the house, however, part of the roof collapsed, forcing them to retreat. Ultimately, they were able to extinguish the fire only after the building sustained severe structural damage.” State v. Ramey, 127 Conn.App. 560, 562–64, 14 A.3d 474, cert. denied, 301 Conn. 910, 19 A.3d 177 (2011).

The petitioner was convicted, after a jury trial, of the crimes of arson in the first degree in violation of General Statutes § 53a–111 (a)(1), arson in the first degree in violation of § 53a–111 (a)(4) and interfering with an officer in violation of General Statutes § 53a–167a.1 The trial court imposed a total effective sentence of twelve years incarceration with eight years to serve and three years of probation. Id., at 564.

On January 25, 2012, the petitioner filed an amended petition for a writ of habeas corpus alleging that his trial counsel, Attorney H. Jeffrey Beck, provided ineffective assistance because he “failed to present evidence supporting his intoxication at the time of the alleged offense or to raise a defense of intoxication to the arson charges.” At the habeas trial, the court heard testimony from Beck and the petitioner. The trial exhibits included the state's charging information, transcripts of the criminal proceedings and the petitioner's medical record that indicated he had a blood alcohol level of 0.274 on the day of the fire. At the conclusion of the habeas trial on February 2, 2012, the court denied the petition in an oral decision.

The court first noted that Beck was “very experienced,” “supremely educated” and “competent and skilled in what he does.”2 On the basis of Beck's testimony, the court found that Beck had considered raising the issue of the petitioner's intoxication and had discussed that potential strategy with him. Ultimately, Beck concluded that it would be a better defense strategy to attack the weaknesses in the state's case. The habeas court determined that Beck's performance was not deficient. It also concluded that the petitioner failed to prove that he had been prejudiced in any way by the failure to raise at the criminal trial the issue of his level of intoxication. The court subsequently denied the petition for certification to appeal from the judgment denying the habeas petition. This appeal followed.

We first consider the petitioner's claim that the habeas court improperly denied his petition for certification to appeal. The standard of review is well settled. “We examine the petitioner's underlying claim ․ to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. ․ In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but 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․

“In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient․ Second, the [petitioner] must show that the deficient performance prejudiced the defense․ Unless a [petitioner] makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) McClam v. Commissioner of Correction, 98 Conn.App. 432, 435–36, 909 A.2d 72 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). “A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 89 Conn.App. 134, 139, 871 A.2d 1103, cert. denied, 275 Conn. 909, 882 A.2d 676 (2005).

The petitioner claims that trial counsel rendered ineffective assistance because “he failed to raise an intoxication defense” at the underlying criminal trial. Intoxication is not a defense to a criminal charge, but it may be offered by a defendant to negate an element of the crime charged.3 The petitioner argues that because his blood alcohol level on the day of the incident was 0.274, defense counsel should have advanced the theory “that even assuming, arguendo, that the petitioner did start the fire, the petitioner was unable to formulate the specific intent required for the commission of the crime of arson in the first degree.”

At the habeas trial, Beck testified that he believed the state would not be able to prove beyond a reasonable doubt that the petitioner intended to damage or destroy a dwelling or building or that he intended to start a fire, as required for a conviction of arson in the first degree.4 He based this opinion on the fact that the fire marshal did not know and could not testify as to how the fire originated. Although the fire marshal believed it had started in the living room area of the petitioner's apartment because of the burn pattern, the cause of the fire remained undetermined. Further, there was no evidence of any accelerant being used to start the fire. Because the state had no physical evidence of the fire being set intentionally, Beck determined that the best trial strategy would be to undermine the state's case by focusing on its weaknesses.

Beck further testified that he had considered raising the issue of the petitioner's level of intoxication on the day of the fire and had discussed that potential strategy with the petitioner. He believed, however, that the best strategy was to attack the weaknesses in the state's case because the failure to prove the petitioner's intent to destroy or damage the apartment building by starting a fire would result in his acquittal. Beck believed that focusing on the petitioner's voluntary intoxication “might not play well with the jury.” The petitioner told Beck that he had little or no recollection of what happened when the fire started, and Beck believed it would not be helpful to raise the issue of intoxication because “it kind of looks like an excuse to criminal conduct․” Furthermore, he knew that the state intended to present evidence at trial that supported its claim that the petitioner was quite aware of his actions, which made it unlikely that intoxication could have been used successfully to show that the petitioner was incapable of forming the requisite criminal intent for arson in the first degree. During the habeas trial, Beck confirmed that there had been several telephone conversations between the petitioner and the police officers during the relevant time period at the apartment and that the petitioner had been able to travel from his first floor apartment up to the third floor through a fire engulfed building in order to jump to safety.5 For those reasons, Beck believed it was not a good trial tactic to rely on the petitioner's intoxication, and he “felt strongly about the strategy” that he had chosen.

The only other witness at the habeas trial was the petitioner, who testified that he told Beck that he had been drinking heavily from the night before the fire into the early morning hours.6 He also testified that he recalled the sun coming up, but that he “really didn't remember much after that until waking up to a fire․ I couldn't really see much after that, I couldn't see at all. You know, I didn't remember anything, really, after that until I woke up from a coma.”

On the basis of this record, we conclude that the habeas court correctly determined that the petitioner failed to demonstrate that Beck's performance was deficient when he failed to raise the issue of the petitioner's level of intoxication to the jury. Beck expressly stated that he believed that the best trial strategy was to attack the weaknesses in the state's case because the lack of forensic evidence would preclude the state from proving beyond a reasonable doubt that the petitioner had set the fire intentionally. He testified that he had considered but rejected the idea of presenting an intoxication defense at the criminal trial for strategic reasons.

As the habeas court properly found, the petitioner's claim that Beck should have raised the issue of intoxication is not persuasive because it is directed at Beck's trial strategy. “[S]trategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable․” (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). “[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․

“[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment․ It is well established that [a] reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time.” (Internal quotation marks omitted.) Coward v. Commissioner of Correction, 143 Conn.App. 789, 800–801, 70 A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013). Beck's decision not to call attention to the petitioner's intoxication “falls into the category of trial strategy or judgment calls that we consistently have declined to second guess.” (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, supra, 126 Conn.App. at 132. Because the habeas court credited Beck's testimony that the decision not to argue intoxication was a matter of trial strategy, the petitioner failed to demonstrate that counsel's actions were unreasonable under the circumstances of this case.

Furthermore, we agree with the habeas court that even if such a strategy constituted ineffective assistance, the petitioner did not prove that he had been prejudiced by the failure to raise the issue of his intoxication. As noted by the habeas court, the petitioner relied solely on his blood alcohol level on the day of the fire to support his argument that he was incapable of forming the requisite intent to damage or destroy a building by starting a fire. No evidence was presented to the habeas court that indicated the petitioner's blood alcohol level at the time the fire was set. Further, no toxicologist testified as to whether the petitioner's level of intoxication caused a “substantial disturbance of mental or physical capacities”; General Statutes § 53a7; that rendered him unable to form the specific intent required to commit arson in the first degree.7 Such an opinion, of course, would take into consideration such factors as the petitioner's height and weight. Without evidence of this nature, the petitioner failed to prove that he was prejudiced by any alleged deficiency in Beck's performance.8

Upon our examination of the record and briefs, as well as the court's resolution of the issues presented in the habeas petition, we are not persuaded that the court abused its discretion in denying the petition for certification to appeal. The petitioner has not demonstrated that the issues presented are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.

I respectfully dissent. I do not agree that the petitioner's trial attorney's “strategy” to avoid proving and arguing that the petitioner, Ryan Ramey, was intoxicated would in any way have detracted from his primary thrust that the state's own witness could not opine how the fire started and, as a result, the petitioner had a good chance at acquittal. It is logical and certainly consistent with the evidence to argue that the state could not prove its case that the petitioner started the fire and that, even if the jury found beyond a reasonable doubt that he did start the fire, he certainly could not be guilty of first degree arson because he was intoxicated and did not have the specific intent to commit the crime. These are not inconsistent arguments, and the fact that they were not made deprived the jury of the opportunity to consider a lesser included crime and, ultimately, deprived the petitioner of the chance that he could have faced a lesser penalty. The petitioner's trial attorney, Attorney H. Jeffrey Beck, should not be allowed to hide behind the “trial strategy” shield to override what I believe to be ineffective representation. Accordingly, I conclude that the habeas court abused its discretion in denying certification to appeal, and I would reverse the judgment denying the petition for a writ of habeas corpus.

I

Appellate review of counsel's 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 [of trial].” (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009). Due to the amount of circumstantial evidence adduced at trial, the jury only could have drawn one reasonable conclusion-the petitioner started the fire in question. The record reflects that the petitioner was the only person in the building at the time the fire started. The fire marshal, Charles R. Doback, Jr., testified on the basis of his report that it was “very obvious” that the fire started in the room in the petitioner's apartment where the responding officers observed the petitioner. Although Doback did testify that he could not determine exactly how the fire started, he was able to rule out several potential accidental causes. On cross-examination, Beck never raised the possibility that there may have been other potential accidental causes of the fire that Doback had not ruled out. Doback's testimony as a whole left the impression that the fire was not accidental. Furthermore, even though Doback testified that there was no evidence that accelerants were used to start the fire, he made it clear that the fire could have been set intentionally without using an accelerant. In sum, the state's evidence was that the petitioner was the only occupant of the building at the time that the fire was set, and the state's fire investigator ruled out any accidental causes that he considered.1

As a matter of common sense, the only reasonable conclusion based on these facts was that the petitioner intentionally started the fire. See State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985) (“jury must rely on its common sense, experience and knowledge of human nature”). The only possible alternative explanation for the fire was that, by pure coincidence, a fire started in the petitioner's apartment on the same day that he threatened suicide, barricaded himself inside the building, and was surrounded by police. This theory defies common sense. Absent evidence to the contrary, the state's evidence led to the conclusion that the petitioner intended to set the fire, which in turn invites a strong inference that the petitioner intended to damage the building. See State v. Coleman, 304 Conn. 161, 167–68, 37 A.3d 713 (2012) (specific intent to commit murder inferred from defendant's conduct and weapon used); State v. Ayala, 133 Conn.App. 514, 519–20, 36 A.3d 274 (specific intent to prevent individual's liberation inferred from threatening victim's life and ordering her to sit on couch), cert. denied, 304 Conn. 913, 40 A.3d 318 (2012). As this court stated previously in the petitioner's direct appeal, the state provided “ample circumstantial evidence from which the jury reasonably could have inferred that the [petitioner] possessed the requisite intent to damage the building at the time that he started the fire.” State v. Ramey, 127 Conn.App. 560, 568, 14 A.3d 474, cert. denied, 301 Conn. 910, 19 A.3d 177 (2011).

The only reasonable strategy in light of the state's evidence was not to claim that the evidence was insufficient, but to argue that, although the fire intentionally was set, the petitioner recklessly caused damage to the building as opposed to specifically intending to do so. The petitioner's intent at the time the fire started was central to the outcome of the case. Beck's performance was deficient because he failed to respond to the state's circumstantial case with the credible evidence available to him that demonstrated the petitioner did not specifically intend to damage the building.

The most persuasive evidence that the petitioner did not specifically intend to damage the building was that he was intoxicated at the time the fire started. See General Statutes § 53a–7 (evidence of intoxication can negate evidence of specific intent). At the habeas trial, the petitioner testified that he began drinking at 5 p.m. on the evening before the fire, and continued to drink with friends until dawn.2 The hospital report indicated that the petitioner's blood alcohol level was 0.274 when he arrived at the emergency room.3 This report is credible, scientific evidence that the petitioner may not have intended to damage the building because he was intoxicated at the time the fire started.

The argument that the petitioner did not intend to damage the building also was supported by evidence that he was upset about his fiance‘e moving out and taking their children with her. The petitioner's fiance‘e testified that when she last visited him the apartment was in disarray. She testified that the petitioner had piled her personal items in the room where the fire started. The evidence at trial tended to show that this was the origin of the fire. The fiance‘e testified that when the petitioner called on the morning of the fire, “[h]e just wasn't acting normal․” I submit that this evidence, together with the evidence that he was impaired by alcohol, raises reasonable doubt as to whether the petitioner purposefully set out to damage the building, but, instead, recklessly lit fire to his fiance‘e's personal possessions. The petitioner's intent was the key issue at trial, and, even though there was credible evidence available, Beck failed to advance the plausible argument that the petitioner recklessly started the fire and did not specifically intend to damage the building.4

Our Supreme Court previously found that defense counsel's “failure to present [a] relevant, plausible third party culpability defense constituted deficient performance․” Bryant v. Commissioner of Correction, supra, 290 Conn. at 517–18. The court reasoned that the credible third party culpability evidence “would have called into question the most basic elements of the state's case․ In light of all the circumstances ․ the decision not to present the third party culpability defense fell below an objective standard of reasonableness, and, therefore, constituted deficient performance under the principles enunciated in Strickland.” Id., at 520. In the present case, I would conclude that Beck's failure to present evidence of intoxication was objectively unreasonable. In light of all the circumstances, including the ample amount of circumstantial evidence presented by the state and the availability of a credible defense, it was objectively unreasonable to refrain from presenting that defense.

Beck reasoned that his decision was strategic because evidence of intoxication would not “play well” with the jury in that it “looks like an excuse to criminal conduct” and he did not want to confuse the jury with multiple strategies. To begin, Beck's strategy to highlight the state's inability to prove conclusively how the fire started and the evidence that the petitioner was intoxicated are not inconsistent or difficult to understand. Both reinforce the argument that the petitioner did not specifically intend to damage the building. I hesitate to accept the bare assertion that the intoxication evidence would not “play well” with the jury.5 I acknowledge the presumption that an attorney's strategic decision is sound, but I am mindful that “[t] he United States Supreme Court has cautioned that [t]he relevant question is not whether counsel's choices were strategic, but whether they were reasonable.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 107 Conn.App. 181, 186, 944 A.2d 429 (2008). Although an attorney's strategic decision usually “falls into the realm of trial strategy, which is typically left to the discretion of trial counsel ․ it does not follow necessarily that, in every instance, trial counsel's strategy concerning these decisions is sound.”6 (Citation omitted.) Bryant v. Commissioner of Correction, supra, 290 Conn. at 521. In light of the foregoing, Beck's failure to present the intoxication evidence was not objectively reasonable.

II

“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment․ [T]he petitioner [must also] demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different.” (Citations omitted; internal quotation marks omitted.) Id., at 522. I would conclude that Beck's deficient performance prejudiced the petitioner at trial.

As previously stated, the petitioner's intent was the dispositive issue. As a result, Beck's failure to argue that the petitioner's intoxication affected his ability to form the specific intent to damage the building “had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture․” Strickland v. Washington, 466 U.S. 668, 695–96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The jury was presented only with the state's evidence and it was left to draw the obvious inference that the petitioner intentionally started the fire, and thereby intended to damage the building. Beck's failure to present credible, scientific evidence of intoxication to call this inference into question “was exceedingly damaging to the petitioner's defense .” Bryant v. Commissioner of Correction, supra, 290 Conn. at 525.

The majority reasons that the petitioner has not proven that he suffered prejudice because he did not present evidence of his blood alcohol level at the precise time of the fire and, moreover, there was no expert testimony that his level of intoxication rose to a “substantial disturbance of mental or physical capacities․” The evidence indicates that the petitioner was intoxicated at the time the fire started. See footnote 3 of this dissenting opinion. Furthermore, this court previously has concluded that, with respect to evidence of intoxication presented pursuant to § 53a–7, “it is not necessary for a defendant to present evidence of the effect of an intoxicating substance on him to require an instruction on intoxication and specific intent. The jury is permitted to infer from the fact that an intoxicating substance was ingested that an incapacity to form a specific intent resulted․ This does not mean, however, that only the slightest evidence of the possibility of intoxication is sufficient to require a court to give a requested charge on intoxication and specific intent.” (Citation omitted.) State v. Rodriguez, 44 Conn.App. 818, 822, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997).

The petitioner has presented more than the slightest evidence that he was intoxicated; he submitted the results of his blood alcohol test at the hospital. See id., at 821, 822–23 (defendant's statement to police that he had used drugs prior to crime, possession of a packet of white powder, and documentation he belonged to needle exchange program insufficient for intoxication instruction); see also State v. Morales, 71 Conn.App. 790, 816, 804 A.2d 902 (defendant's statement he consumed alcohol insufficient), cert. denied, 262 Conn. 902, 810 A.2d 270 (2002). Had Beck offered evidence of intoxication, the petitioner would have been entitled to an instruction on intoxication and specific intent, which then “permit[s] [the jury] to infer from the fact that an intoxicating substance was ingested that an incapacity to form the specific intent resulted.” State v. Rodriquez, supra, 44 Conn.App. at 822. The jury is permitted to draw this conclusion in the absence of expert testimony and, therefore, I disagree with the majority that expert testimony was required to demonstrate prejudice here. See Strickland v. Washington, supra, 466 U.S. at 694–95 (petitioner must show trial court proceeding would have been different presuming jury acted according to law).

The outcome of the prejudice inquiry, therefore, depended on whether it was reasonably probable that the jury would have drawn the inference that the petitioner's mental capacity was substantially disturbed had Beck presented the credible intoxication evidence. See id., at 694, 696. “Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case․” (Internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 722, 789 A.2d 1046 (2002). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. at 694.

At the time of the fire, the petitioner had been drinking for more than eighteen hours, consuming a liter of tequila in that time. He drank to the point where he could not remember the events surrounding the fire, and he had a 0.274 blood alcohol level when he finally reached the hospital. This evidence, and the evidence that the origin of the fire was a pile of the petitioner's fiance‘e's clothes, undermines my confidence in a conviction of arson in the first degree, which requires that the petitioner had the specific intent to damage the building. It is reasonably probable that, but for Beck's failure to present the intoxication evidence, the jury would have inferred that the petitioner's intoxication caused a substantial disturbance in his mental capacity.

“[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged․ The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Citation omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 689, 51 A.3d 948 (2012). Beck's failure to present evidence of intoxication undermined the adversarial process and my confidence in the petitioner's conviction of arson in the first degree. In my view, the court abused its discretion in denying the petition for certification to appeal. Furthermore, I would conclude that the petitioner was denied the effective assistance of counsel and, therefore, that the habeas court should have granted the petition for a writ of habeas corpus.

For the foregoing reasons, I respectfully dissent.

FOOTNOTES

1.  Initially, the petitioner also was charged with two counts of cruelty to animals in violation of General Statutes § 53–247(a). The third floor tenants had two dogs, a five year old yellow Labrador retriever named Chelsea and a two year old chocolate Labrador retriever named Guinness, that perished in the fire. At the close of the state's case, the petitioner made an oral motion for a judgment of acquittal as to all charges. The court granted the motion with respect to the cruelty to animals charges for the stated reason that there was no direct evidence that the petitioner knew that the dogs were in the third floor apartment on the day of the fire.

2.  The evidence demonstrated that Beck had participated in sixty to seventy criminal trials, including cases involving serious felony charges, by the time he represented the petitioner.

3.  General Statutes § 53a–7 provides in relevant part: “Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged․ As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”

4.  General Statutes § 53a–111 (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building ․ he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied ․ or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”

5.  In the transcripts of the criminal proceedings that were submitted as exhibits during the habeas trial, there also was testimony that (1) one of the tenants heard breaking noises coming from the petitioner's apartment from 5 a.m. until she left the building at 11 a.m., (2) when a police officer contacted the petitioner at noon, the petitioner said, “I don't want your help,” (3) when a police officer contacted the petitioner at 12:15 p.m., the petitioner told him that he would jump from the window if the police called again, (4) an officer noticed smoke coming from the building at 12:22 p.m., (5) the fire originated in a pile of Squires' clothing and other personal items, which she said she had seen strewn about the petitioner's apartment a few days before the fire, (6) when the petitioner arrived at the third floor and climbed onto the fire escape at 12:25 p.m. and the officer asked him to come down, the petitioner reentered the smoky building and closed the blinds and one of the windows, (7) the fire became more intense after the petitioner reentered the building, (8) when the petitioner jumped or fell from the third story window at 1:37 p.m., he started to get up as if he intended to run from the scene, and (9) when the petitioner spoke with Squires after the fire, he told her that he remembered setting free his and Squires' cat and bird before the fire. Accordingly, even though the petitioner testified at the habeas hearing that he woke up after the fire started and was in “a coma” until that time, Beck reasonably could have determined that the evidence would preclude a viable argument that the petitioner was so intoxicated that he was incapable of forming the intent to damage or destroy the building by setting a fire.

6.  The dissent, relying on a statement in the presentencing memorandum of law from the petitioner's criminal trial, states that the petitioner “had been drinking for more than eighteen hours, consuming a liter of tequila in that time.” At the habeas trial, however, the petitioner testified that he “bought a bottle of tequila” and that he “and a few of my friends came back to the house, stayed there drinking until ․ the sun was coming up, and that's when they left.” It appears, if the petitioner's testimony is credited, that a number of people were drinking from the bottle of tequila.

7.  The dissent cites State v. Rodriguez, 44 Conn.App. 818, 822, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997), for the proposition that “it is not necessary for a defendant to present evidence of the effect of an intoxicating substance on him to require an instruction on intoxication and specific intent.” (Emphasis added.) Significantly, this case is a direct appeal from a criminal case in which the defendant requested jury instructions on intoxication. The present case is a habeas case, which requires the petitioner to prove both deficient performance of counsel and prejudice to the defense because of the deficient performance. Here, the petitioner failed to meet the prejudice prong of Strickland because he failed to present evidence that his level of intoxication caused a “substantial disturbance of mental or physical capacities․” General Statutes § 53a–7.

8.  On January 26, 2012, which was less than one week before the scheduled habeas trial date, the petitioner filed a motion for a four month continuance of the trial in order to retain a toxicology expert to review the petitioner's medical records and offer an opinion as to the effect of his intoxication on his ability to form the requisite intent. The court, Solomon, J., denied his motion, and the petitioner has not challenged that ruling on appeal.

1.  Although Beck stated that his strategy was to attack the weaknesses in the state's case, his cross-examination of Doback-whose report, according to Beck, was the key to creating reasonable doubt with respect to the petitioner's intent-consisted of eight questions. One question pertained to the cause of the fire and established that the precise cause was undetermined.

2.  The habeas court credited the petitioner's testimony that he was in “a coma” when the fire started, and interpreted this testimony as establishing that the petitioner could not remember anything about how the fire started.

3.  The evidence tended to show that the fire started at approximately 12:22 p.m. when the officers first observed smoke inside the building. The petitioner's blood alcohol was measured at the hospital approximately two hours later at 2:24 p.m. The majority suggests that the hospital record is not evidence of what the petitioner's blood alcohol level was at the time the fire started. The implication made by the majority is that the petitioner, after consuming alcohol from 5 p.m. the previous evening until dawn, stopped drinking long enough to become sober by approximately 12:22 p.m., and then started then fire. Subsequently, the majority implies, he then began consuming alcohol again bringing his blood alcohol level up to 0.274 before falling out of the third story window. In my opinion, on the basis of the evidence, the reasonable inference is that the petitioner began drinking the previous evening then continued drinking throughout the day of the fire, and, therefore, the hospital report is a fair approximation of his level of intoxication at the time the fire started.

4.  This theory also is supported by the fact that there was no evidence that the petitioner had problems with any other residents in the building.

5.  Although Beck testified that intoxication evidence would not “play well” with the jury, he also stated that he could not recall ever advancing that argument during his career.

6.  In support of its conclusion that Beck's strategy was reasonable, the majority argues that the state had presented evidence which made it unlikely that the petitioner did not specifically intend to damage the building as a result of his intoxication because he was capable of forming the requisite intent. See footnote 5 of the majority opinion and associated text. I submit that this same evidence also tended to show that the petitioner was intoxicated and as a result was acting irrationally: after consuming alcohol all night he was heard causing damage in his own apartment, he threatened suicide, set his pets free, reentered a burning building, and refused assistance after falling from a third story window. Moreover, the petitioner's testimony, which the habeas court credited, that he was unable to remember the events of that day is additional evidence that he was intoxicated at the time of the fire. See Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 351, 493 A.2d 184 (1985).I also note that § 53a–7 defines intoxication as a substantial disturbance in either the petitioner's mental or physical capacity. The fact that the petitioner was able to navigate to the third floor of the building, climb out on the fire escape, reenter a burning building, fall out a window, and subsequently attempt to flee, does not preclude a jury from finding that there was a substantial impairment in the petitioner's mental—as opposed to physical—capacity.

ALVORD, J.

In this opinion KELLER, J., concurred.

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