Gerald Moyher v. The Warden, State Prison (2010)

MEMORANDUM OF DECISION

MEMORANDUM OF DECISION

I'm prepared to decide this case.   I've considered all the exhibits, the testimony, the arguments of counsel.   I thank counsel for their advocacy.

Based on all the things I've considered and for the reasons in detail that I will explain, I'm denying the petition for writ of habeas corpus.

The principal claim of the petitioner centers on the fact that trial counsel did not file a motion to suppress and motion to dismiss and ask for a jury instruction concerning the alleged illegal entry of the police.   I find that there was no ineffective assistance of counsel in failing to do so.

First, I believe that the court would likely have found that the entry by the police was, in fact, a lawful emergency entry.   The test ultimately is stated in State v. Moyher, the defendant's direct appeal, 92 Conn. Ap. 612 at 617, and ultimately the state must prove that a reasonable police officer would have believed that an emergency existed.

I believe that the state would have been able to prove that the police knew that there was a history of domestic violence between the petitioner and Ms. Storer.   The police observed the petitioner and Ms. Storer to be under the influence of alcohol.   They observed a disagreement that escalated into an argument verbal, then that escalated into a physical disagreement in which the petitioner grabbed Ms. Storer's wrist and then ultimately shoved her in the house.   Immediately, thereafter, they hear an argument that is extremely loud and clearly suggests that violence may well occur.

What is a police officer to do in that situation?

There's no time to get a warrant.   I believe the officers would have been remiss if they did not enter the house just to see whether Ms. Storer was okay and to defuse the situation, which clearly was escalating.

There are all sorts of emergencies.   This may not be exactly like many of those cited by counsel.   There are levels of emergencies, but there was an imminent threat to Ms. Storer's physical well-being based on what had happened in the past, what the police had seen, what they had heard, and what they knew;  and therefore, I think it was a lawful emergency entry into the house and a court would have so found.   Therefore, there was no ineffective assistance of counsel in failing to file a motion to suppress and there would have been no basis for a motion to dismiss.

As to the claim that counsel should have requested a jury instruction based on the right to resist an illegal entry, I find that the petitioner was not entitled to such an instruction.

Under State v. Wearing, 98 Conn.App. 350 at 356, if the court finds that the entry is legal, then there is no basis for an instruction on an illegal entry, and I believe that would have been the case here.   Ordinarily it is a court determination as to whether there's a basis for a particular jury instruction.   I think that this situation fits into that general rule as well and it would not have been a basis for an instruction on illegal entry.

In any event there was no prejudice from the lack of such instruction even if arguably the defendant was entitled to it, which I do not believe he was.

First, defense counsel for trial counsel did argue to the jury that the entry was illegal.   This is found particularly on Pages 11 and 12, of the April 8th transcript, which is Exhibit B. I'll just quote an excerpt in which trial counsel says, “There's no law that says you can't have an argument in your house.   Couples have arguments all the time.   Does that give the police officers the right to come up to your door, to knock on your door, having not heard a call, been informed by anyone to come into your house.   No one said, Hey, I want the police.   I need the police officers here.   No one said anything like that and then just to enter your home, come right into your home, no warrant, no-no one asking them to come in.   In fact, everyone that lives in the home is asking them to leave.

So, this issue was presented to the jury in that form by trial counsel, but in addition, I find that there's no harm as a matter of law from the lack of an instructionbecause the jury already had before them the issue of whether the defendant committed an assault on a police officer.   If the defendant did, in fact, assault a police officer, he would be guilty of that offense even if the entry were illegal.   Under State v. Gallagher, 191 Ct. 433 at 443, you cannot resist an illegal entry by assault.   An instruction, arguably, would have been relevant to interfering-to the interfering with an officer charge, but the defendant received an unconditional discharge on that conviction and is not being held on it.

Alternatively, if the jury found that the defendant did not assault the officer, then the defendant was entitled to a not guilty verdict regardless of whether the entry was legal or illegal.   So, I think the jury already had the issues before them in considering the elements of assault on a police officer and there would have been-the outcome would not have been different had the court instructed on illegal entry.   That addresses, it's actually paragraph one of the petitioner's claims.

I'll now turn to paragraph two in which the petitioner claims that trial counsel failed to file a motion in limine to exclude various items that did come out in the testimony.

To begin with it's not at all clear because no evidence was presented by the petitioner that trial counsel had information that the state was going to bring this evidence out and that, therefore, a motion in limine was appropriate.   Some of the statements seem somewhat spontaneous in nature and perhaps not something that trial counsel could have predicted would have come out before-could have predicted before trial that would have come out during trial.   So, motion in limine is not-I can't fault trial counsel for not filing a motion in limine for at least some of these things.

Second, just as a general matter, it is true that even if we focus on whether objections were made at trial rather than a motion in limine that objections are sometimes matters of trial strategy and it is not a good strategy to over object, or at least it's a valid strategy not to over object and had counsel-and the petitioner lists seven or eight things that counsel should have objected to in addition to the objections that he did make.   It may well have been reasonable strategy not to make all these additional objections.   Nonetheless, I'll go through them one-by-one.

First item, 2-A, goes to evidence that Sergeant Thomas knew Christopher Donahue from dealing with him at previous incidents.   This testimony was rather innocuous.   It does. not reflect on the defendant and trial counsel did bring out during cross-examination that the defendant who was sitting next to him is not Christopher Donahue, suggesting that he's not the person who Sergeant Thomas knew from those previous incidents.

2-B, evidence that the reason for police to enter the petitioner's home was due to prior domestic incidents and because they were concerned for safety of Doreen Storer.   This evidence was properly admitted to show that the officer was in the performance of his duties which the state had a burden to prove beyond a reasonable doubt, and so an objection, it seems to me, would have been unavailing.   I would add that no details of the prior incidents were brought out, thus minimizing the prejudice.

Item 2-C, evidence that after the petitioner was under arrest, petitioner made some remarks that are in the petition about asking the officers:  Do you want me to bend over, etc.

These statements clearly show the petitioner's continuing resistance to the arrest and, therefore, are relevant to the count of interfering of an officer and may well have been relevant to his mindset with regard to assault on a police officer;  therefore, were admissible and it was reasonable for trial counsel not to object.

The same is true with regard to paragraph 2-D, in which the petitioner cites statements by the petitioner that he had a .22-caliber pistol in his crotch.   Again, this statement is relevant to interfering of a police officer and may well have been relevant to assault on a police officer.

Paragraph 2-E, alleges ineffective assistance in failing to challenge evidence that the petitioner made remarks to the police that they must have jumped on him like an f'ing N word.   I don't even want to repeat it it's so vulgar.   But the fact of the matter is that trial counsel did object to that, on Page 19, and the court overruled the objection, so counsel did his job in that regard, and, in fact, the testimony was relevant as the court ruled at the time to show the petitioner's continuing resistance to the arrest.

Paragraph 2-E, also mentions that this comes up again on Page 76 to 77, in questioning another law enforcement officer.   There was no objection at that time, but counsel, trial counsel could reasonably have concluded that it would have done little good to object again when he had objected before;  the court had overruled it for sound reasons.   At that point counsel might well have concluded that he would have seemed obstreperous, if had objected again.

Paragraph 2-F, alleges ineffective assistance with regard to evidence that Christopher Donahue punched the dog warden in the stomach and so on.   This evidence, it occurs to me, is part of the description of what happened during that night that escalated into ultimately an assault on a police officer.   This became a physical incident and this seems to be part of that whole story.   Again, the evidence does not directly reflect adversely on the defendant because it does focus on Christopher Donahue's actions, so I don't see ineffective assistance in failing to object to that.

Paragraph 2-G, focuses on the fact that Mr. Harmon's cross-examination of Sergeant Thomas opened the door to the state eliciting testimony that the reason to enter the petitioner's home was due to prior domestic incidents.

From the Appellate Court's opinion it appears that the question that they felt opened the door was a question asked by Mr. Harmon about the police officer's experience with problems of domestic abuse, and it appears that trial counsel was trying to show the officer's lack of experience in that regard, and was a reasonable question, although the Appellate Court ultimately held that the state's response on redirect was an appropriate response and that trial counsel opened the door.   Trial counsel did not ask about specific incidents of domestic abuse between the petitioner and Ms. Storer, and so I think what petitioner is doing here is looking at this in hindsight and saying that trial counsel's strategy backfired, and perhaps that's true, but we can't look at these matters in hindsight.   At the time it seemed to be a reasonable question to ask.

I would add that on Page 73 of the April 7th, transcript, which is Exhibit AA, the state brings out on direct examination of the officer, evidence of prior incidents.

In Paragraph 2-G, the petitioner alleges that the state elicited testimony that the reason for the police to enter was due to prior domestic incidents and cites Page 73 of the April 7th transcript.   I will note that that is the direct examination of Officer Tamborini, and so that could not have-it's not clear that that was as a result of opening the door on cross-examination of Sergeant Thomas.

It came out on direct and apparently because it's permissible testimony, it shows that the police were in the performance of their duties and had a valid reason for going in the house, which would show, again, that they were in the performance of their duties.

Paragraph 2-H, petitioner claims ineffective assistance with regard to Mr. Harmon's recross-examination of Sergeant Thomas in eliciting that domestic incidents involve the petitioner and Ms. Storer.

As I pointed out during closing argument, this information came out on redirect of Sergeant Thomas:  it was not-well, actually let me restate that.

The redirect of Sergeant Thomas didn't bring out that it was between-that it involved the petitioner nor at least initially did the recross.   Trial counsel then asked some additional questions as to the-leading questions to try to show that it was not the petitioner who was involved in these prior domestic incidents.   The Sergeant did not agree with trial counsel's suggestion in the questions, but at the time it was a reasonable strategy to try to minimize the petitioner's involvement in these prior incidents and petitioner is just looking at this with the benefit of 20-20 hindsight because it didn't come out all that well and second guessing counsel, but at the time the questions were a reasonable effort to try to minimize the petitioner's involvement in these prior domestic incidents.

So, I find no ineffective assistance of counsel from failure to file a motion in limine or even to object to the extent he did not to the items in question in the petition.

Finally, I will find no prejudice from any deficiencies of counsel because the evidence was overwhelming;  three police officers testified as to the defendant's assault on one of the police officers and as to his resistance to arrest, and the jury had ample evidence to find the defendant guilty as charged.

So, for those reasons the petition for a writ of habeas corpus is denied.

How should we?   Is there any further matter or business that we have to take care of?

ATTY. MCGUINNESS:  None from the respondent, Your Honor.

ATTY. KOCH:  No, Your Honor.

THE COURT:  All right.   If there's nothing further, then again, I thank counsel for their assistance and we'll ․

THE CLERK:  Your Honor, could the record reflect that the petitioner is given his notice of appeal.

THE COURT:  Oh, if that's the case, it may.

We'll stand adjourned.

Schuman, J.

Schuman, Carl J., J.