Juma Lahai v. Warden, State Prison (2012)

MEMORANDUM OF DECISION

The petitioner, Juma Lahai, seeks habeas corpus relief from illegal confinement arising from his conviction after a jury trial, of Assault Third Degree, in violation of General Statutes § 53a–61.   The petitioner was sentenced to five years incarceration based on the enhanced sentencing provisions of General Statutes § 53a–40d for persistent offenders.   The petitioner claims that his conviction was wrongfully obtained because his defense lawyer, Attorney Christopher Parker, rendered ineffective assistance at his trial and deprived him of his constitutional right to counsel thereby.

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims.  Johnson v. Commissioner, 218 Conn. 403, 425 (1991);  Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992).   The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that there exists a reasonable probability that, but for counsel's deficient representation, the outcome of the proceedings would have been different.   Id.

In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.  Levine v. Manson, 195 Conn. 636, 640 (1985).   Reasonable probability means a probability sufficient to undermine confidence in the verdict.  Daeira v. Commissioner, 107 Conn.App. 539, 542–43 (2008), cert. denied, 289 Conn. 911 (2008);  that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt.  Id.

The petitioner specifically alleges that Attorney Parker requested that the trial judge instruct the jury that self-defense was an affirmative defense which placed upon the petitioner the burden to prove the elements of self-defense, by a preponderance of evidence, before the prosecution was required to disprove that defense beyond a reasonable doubt.   It is undisputed that Attorney Parker sought such a request and also that the trial court instructed the jury in accordance with that proposed instruction.   The respondent concedes that this instruction was incorrect.

As noted above, the jury found the petitioner guilty as charged.   This conviction was upheld on appeal, despite the improper instruction, because the error was induced by the petitioner through his trial counsel.  State v. Lahai, 128 Conn.App. 448, 457 (2011), cert. denied, 301 Conn. 934 (2011).

The respondent also concedes that Attorney Parker's representation was deficient in this regard under the Strickland standard.   Thus, the remaining issue for this court to resolve is whether the petitioner has proved, by a preponderance of the evidence, that Attorney Parker's substandard representation created a reasonable probability of an unreliable determination of guilt by the jury which labored under the erroneous self-defense instruction.   The court determines that he has satisfied this burden and proved the second prong of the Strickland test.

The prosecution charged the petitioner with assault for striking his former girlfriend, Elizabeth Hutchinson, multiple times in the face with his hands.   These two persons were the only eyewitnesses to the assault.

Hutchinson testified at the criminal trial that she and the petitioner were arguing.   Fearful that the argument might escalate, Hutchinson called her friend, Amy Lukasik, using a cordless phone with a land line connection.   Hutchinson asked Lukasik to pick her up and transport her from the apartment, but Lukasik needed to watch her children and was unable to go to Hutchinson's aid.   As a result, Hutchinson and Lukasik engaged in a precautionary tactic which they had employed in the past when the petitioner and Hutchinson had disputes.   Hutchinson surreptitiously allowed the receiver of her cordless phone to remain activated so that Lukasik could overhear the activity transpiring at Hutchinson's residence.

At some point during the altercation, Hutchinson threw a lotion bottle at the petitioner but missed striking him.   Her concern aroused by the shouting she overheard, Lukasik called the Meriden police department to intervene.   Officers arrived, knocked repeatedly on the front door, and loudly declared their presence.   They received no response, so they inspected the exterior perimeter and knocked on a rear door and window, but again no one responded.   The officers unsuccessfully tried to contact the landlord of the building and Lukasik.   Having failed to locate anyone, the officers departed.

Lukasik lived a short distance away from the apartment, and she saw, to her chagrin, the officers leaving the area.   She overheard the petitioner tell Hutchinson that her police buddies left her for dead.   She called the police a second time and told them that Hutchinson was being held against her will.   At the criminal trial, Hutchinson denied that such restraint ever occurred.

Upon receipt of the second call, the police returned to the scene and requested assistance from the fire department in case entry by force was necessary.

The officers arrived, knocked on the door, and requested entry.   Officer Ganter testified at the criminal trial that he heard a female voice which sounded fearful emanating from inside the residence.   He kicked open the door, and the officers searched the apartment.   The officers observed the petitioner and Hutchinson sitting on a bed in a small bedroom.   Hutchinson had three red marks on her face which was slightly swollen.   The injuries appeared freshly inflicted.   She was shaking and evasive.

Hutchinson refused medical assistance and did not want the petitioner arrested.   As it happened, he was wanted on an arrest warrant held by another town.   The petitioner was taken into custody.   At the police station, the petitioner denied ever striking Hutchinson.   Neither Hutchinson nor Lukasik would agree to give a written statement, and Hutchinson refused to be photographed.

At his criminal trial, the petitioner averred that he took the train to visit his child at Hutchinson's apartment.   They began to quarrel about his infidelities.   Hutchinson threw a lotion bottle at him which he was able to evade.   She had been about eight feet away when she threw the bottle and then began to approach him.   He reacted to her actions by slapping her in the face with the back of his hand.

According to the petitioner's testimony, Hutchinson next grabbed a kitchen knife and cut the phone line of the base unit of the cordless phone.   While he attempted to reconnect the severed wires, she charged at him with the knife.   He backed into a corner of the kitchen, and she tried to stab him.   To fend off her attack, he struck her twice in the face with his hand and was able to disarm her.   He discarded the knife in the trash.   He remained at the apartment and managed to repair the phone cord.

To reiterate, the petitioner is entitled to habeas relief based on ineffective assistance of counsel if he demonstrates that a reasonable likelihood exists that, but for the erroneous jury instruction induced by his lawyer, the jury would have acquitted him based on self-defense.   The petitioner need not prove that acquittal was more likely than conviction, but rather that the state of the evidence at his criminal trial was such that confidence in the jury's guilty verdict is undermined by the misinformation given the jury as to the law of self-defense and appropriate burdens thereunder.

The respondent acknowledges that the evidence adduced at the criminal trial warranted a jury charge as to self-defense.   An accused is entitled to a self-defense instruction even though the evidence produced is “weak or incredible.”  State v. Terwilliger, 294 Conn. 399, 408–409 (2009).

In this case, the jury instruction was wrong in two, distinct ways.   First the instruction misallocated to the petitioner a burden of persuasion where none properly existed.   Second, the jury was misled to understand that even if the petitioner had met this false burden by a preponderance of the evidence, the state could still prevail and obtain a guilty verdict.

If the jury followed the court's instruction with respect to the first error, the jury was allowed to disregard evidence of self-defense unless that evidence preponderated.   That is, if the petitioner introduced some evidence supporting self-defense, albeit inferior to the evidence opposed to it, the prosecution was relieved of any burden to disprove self-defense, never mind disprove it beyond a reasonable doubt.

Alternately, if the jury adhered to the second error contained in the instruction, the jury could only acquit the petitioner, based on self-defense, if the petitioner's evidence was superior to that opposed to it.   In that situation, how could the state ever disprove self-defense beyond a reasonable doubt?   It is logically impossible because the jury would have to find that the petitioner's proof of self-defense preponderated over the state's evidence and, at the same time, that the state's evidence disproved self-defense beyond a reasonable doubt.   Yet the jury was instructed that they could do so by the jury charge requested by Attorney Parker.

Under the circumstances of this case, the only way the improper jury instruction can be viewed as inconsequential with respect to confidence in the jury's verdict of guilty is if the evidence bearing on the issue of self-defense was so strong that the court can say that the jury's rejection of self-defense would have occurred even if the jury had been correctly advised on the law and the burden of proof.   The court finds that the evidence produced at the petitioner's criminal trial leaves much more room for doubt.

As described above, the testimony pitted the petitioner's version of events against that of Hutchinson.   The erroneous charge permitted the jury to conclude that if it found her testimony slightly more believable than his, then the jury never had to address whether the state had disproved self-defense beyond a reasonable doubt.   It should have been possible for the jury to find that the state's evidence was a more probable reconstruction of events while still harboring a reasonable doubt.   This scenario would have required acquittal, but the incorrect instruction precluded that possibility.

It is certainly the case that the petitioner's testimony was vulnerable to attack.   The jury learned that he was a felon.   His statement to the police, denying that he even struck Hutchinson, was contradicted by his trial testimony that he did strike her to thwart her assault on him.   He never mentioned to the police any use of a knife.

But Hutchinson's testimony was also subject to skepticism.   She was uncooperative with the police and did not want the petitioner arrested.   She admitted throwing a bottle at the petitioner before he hit her.   Her testimony disclaiming any threats by the petitioner was inconsistent with Lukasik's testimony.   She denied any history of violence by the petitioner yet had a routine prearranged with Lukasik utilizing an active phone line.   She testified that she was physically capable of defending herself against the petitioner.

No independent, physical evidence nor testimony from a neutral witness distinctly pointed to one version as fact and the other as fiction.   Indeed, it appears no relevant physical evidence was seized at the apartment at all.

The court finds by a preponderance of the evidence, that the petitioner has established the existence of a reasonable probability sufficient to undermine confidence in the jury's verdict.   The court, therefore, grants the habeas petition and vacates the conviction.   The case is remanded to GA7 for further proceedings.

Sferrazza, J.

Sferrazza, Samuel J., S.J.