195243 v. Warden (2013)

MEMORANDUM OF DECISION

The petitioner brings this petition for a writ of habeas corpus claiming that his trial and appellate attorneys were ineffective and seeks an order of this court vacating his judgment of conviction in State v. Miller, Docket No. CR 98 00528416.¹  The court finds that the petitioner has failed to prove his claims and, therefore, denies the petition.

After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a–54a and possession of a weapon in a motor vehicle in violation of General Statutes § 29–38.   The trial court sentenced the petitioner to a total effective sentence of fifty years incarceration.   The judgment of the trial court was affirmed on appeal.  State v. Miller, 67 Conn.App. 544, 787 A.2d 639, cert. denied, 259 Conn. 923, 792 A.2d 855 (2002).

On appeal, the Appellate Court found that the jury reasonably could have found the following facts:

On the night of October 1, 1998, the [petitioner] and two others were talking in the front yard of a house on Burnham Street in Hartford.   Shortly before midnight, the victim drove up to the house.   He parked, leaving his three year old son in the car, and joined the men.   The victim initially was calm, but soon thereafter began to shout at the [petitioner].

After three to five minutes, the conversation turned violent, and the [petitioner] shot the victim in the neck from a distance of four or five feet.   The victim ran to his car and began to drive away, but crashed into a nearby fence.   He died shortly thereafter as a result of the shooting.   The police considered the [petitioner], who had left the scene, to be a suspect.

The next day, October 2, police officers saw the [petitioner] getting into a car.   They stopped the car and arrested him pursuant to an outstanding warrant related to an alleged felony murder committed on January 25, 1998.   The [petitioner] was taken to the police station for questioning and signed a Miranda waiver for the January 1998 murder.   While being questioned about that murder, he made an inculpatory statement about the October 1998 murder ․ The police also found a gun wrapped in a shirt in the backseat of the car.   They later determined that it was the one used to shoot the victim.

State v. Miller, supra, 67 Conn.App. 545–46.

The petitioner initiated this petition for a writ of habeas corpus on January 25, 2010.   In count one of his third amended petition, the petitioner asserts that his trial counsel was ineffective in that he failed to:

1.  Properly and adequately cross examine, impeach and otherwise challenge the testimony of Sean Crowe and Edmund Stewart;

2.  Adequately develop a defense by calling the petitioner to testify at trial in support of that defense;  and

3.  Object to the jury charge on intent.2

In count two, the petitioner claims that his appellate counsel was ineffective in failing to raise on appeal an issue challenging the jury charge with respect to intent.

At the habeas trial, the petitioner introduced the testimony of three witnesses:  himself;  William Shea, his trial attorney, and Jeffrey Kestenband, his attorney expert.   The parties introduced a number of exhibits and both parties filed post-trial briefs.   The Court has considered the testimony, exhibits and briefs and concludes that the petitioner has failed to prove his claims.

A. Claims Regarding Trial Counsel

“A criminal defendant's right to the effective assistance of counsel ․ is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution ․ To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).”  (Citations omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

To establish a claim of ineffective assistance of trial counsel, the petitioner has the burden to establish that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.”  (Internal quotation marks omitted;  emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 688, 694.  “To satisfy the performance prong, a claimant must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed ․ by the Sixth Amendment.’  “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687.   It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action.   Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment, and as a result, he was deprived of a fair trial.  Harris v. Commissioner of Correction, 107 Conn.App. 833, 845–46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).

Under the second prong of the test, the prejudice prong, the petitioner must show that “counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial the result of which is reliable.”  (Internal quotation marks omitted.)  Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).

When assessing trial counsel's performance, the habeas court is required to “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ․” Strickland v. Washington, supra, 466 U.S. 689.   The United States Supreme Court explained:

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.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.

(Citation omitted.)  Id., 689.

Ultimately, “[t]he 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.”  Strickland v. Washington, supra, 466 U.S. 686.

Sean Crowe and Edmund Stewart

The petitioner claims that trial counsel rendered ineffective assistance by failing to offer into evidence state's witness Edmund Stewart's statement to police under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct 597, 93 L.Ed.2d 598 (1986), for purposes of challenging his testimony and the testimony of state's witness Sean Crowe.   The petitioner has failed to prove this claim.

The defense pursued a theory of self-defense based on the petitioner's statement to the police that after the victim retrieved a gun from the trunk of his car, he struggled with the victim for the gun and ultimately ended up shooting the victim.   Crowe testified at the petitioner's criminal trial that he saw the petitioner pull out a gun from his waistband and shoot the victim in the neck.   He stated that he did not see the victim take anything from the trunk of his car or any struggle between the victim and the petitioner.   Stewart testified at the petitioner's criminal trial that right before he decided to leave the area he saw the victim go back towards his car.   As he was leaving the area, he heard a gunshot.   In his statement to the police, Stewart stated, “When Lonnie [the victim] popped the trunk on his car I left.”   The record establishes that on cross examination, trial counsel questioned Stewart about his statement to police.   Stewart admitted to telling the police that he saw the victim go to his trunk but indicated that he had no present memory of it.   Given Stewart's testimony, introducing his written statement on this point would have merely been cumulative evidence.   In addition, Stewart did not witness the victim take anything from the trunk.   He testified that he did not stay long enough to see anything come out of the trunk.

Trial counsel's conduct was not deficient for failing to introduce cumulative evidence, and the petitioner has not proven any resulting prejudice from his failure to do so.   See Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 110, 962 A.2d 155 (no prejudice where impeachment evidence not offered would have been cumulative of other evidence at trial), cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009);  Madagoski v. Commissioner of Correction, 104 Conn.App. 768, 776, 936 A.2d 247 (2007) (no prejudice where testimony of witness not called to testify would have been cumulative of other evidence at trial), cert. denied, 286 Conn. 905, 944 A.2d 979 (2008).   Attorney Kestenband, the petitioner's expert, testified at the habeas trial that “[i]t might have been helpful for the jury to have [the] actual statement.”   To prove prejudice, the petitioner must establish that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  (Internal quotation marks omitted.)   Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458.  “Mere conjecture and speculation are not enough to support a showing of prejudice.”   (Internal quotation marks omitted.)  Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).   There is no evidence before this court that there is a reasonable probability that the introduction of Stewart's statement, the contents of which were already before the jury, would have changed the outcome of the trial.   As noted supra, although Stewart saw the victim “pop his trunk,” he did not see the victim take anything out of it.

Calling the Petitioner to Testify

The petitioner next claims that trial counsel was ineffective in that he failed to adequately develop the defense of self-defense by failing to call the petitioner to testify at trial.   The petitioner has also failed to prove this claim.

The following facts are relevant to the court's conclusion.   According to trial counsel, the petitioner was very bright, conducted his own legal research and had opinions about his criminal trial.   The petitioner told Attorney Shea that he had a disagreement with the victim, and the victim went to his car to get a gun.   There was a struggle, the petitioner tripped and the gun went off.   Based on the petitioner's story, other evidence and a discussion with the petitioner, trial counsel decided to pursue a defense of self-defense.   The petitioner had also given a statement to police in which he said that “[h]e managed to get the gun from [the victim].   That is when he shot [the victim].”  (Internal quotation marks omitted.)  State v. Miller, supra, 67 Conn.App. 548, n.5.

Trial counsel had concerns about calling the petitioner to testify at trial because he did not believe that the petitioner's version of the events was consistent or credible or would hold up under cross examination by the state.   Having heard the petitioner's version of events at the habeas trial, the court finds that trial counsel's concerns were valid.   Trial counsel explained his concerns to the petitioner, and the petitioner agreed that it would be best if he did not testify at trial.   After making the decision not to testify, the petitioner never changed his mind.   The petitioner was canvassed by the trial court on his right to testify.   The petitioner indicated that he understood the right and had discussed his decision not to testify with his counsel.

“It is the right of every criminal defendant to testify on his own behalf;  Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987);  and to make that decision after full consultation with trial counsel.   See State v. Davis, 199 Conn. [88], 93, 506 A.2d 86 (1986).   Equally axiomatic is the proposition that an accused must take some affirmative action regarding his right to testify.  United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985);  State v. Paradise, 213 Conn. 388, 405, 567 A.2d 1221 (1990).”   Ostolaza v. Warden, 26 Conn.App. 758, 763, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 62 (1992).

“While the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.”  (Internal quotation marks omitted.)  Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 814–15, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).

Here, the court credits the testimony of petitioner's trial counsel that he explained the risks of testifying to the petitioner and that the petitioner understood those risks and agreed that the better strategy would be that he waive his right to testify at trial.   The petitioner exercised his right not to testify after being properly advised by his counsel and canvassed by the trial court.

Accordingly, the court finds that the petitioner has failed to prove that trial counsel's advice regarding the decision not to testify was deficient.   Having found no deficiency as to this claim, it is unnecessary for the court to determine prejudice.   See Fernandez v. Commissioner of Correction, 291 Conn. 830, 835, 970 A.2d 721 (2009) (“[t]he claim [ineffective assistance of counsel] will succeed only if both prongs are satisfied ․ [A] reviewing court can find against a petitioner on either ground, whichever is easier” [citation omitted;  internal quotation marks omitted] ).

B. Jury Instruction Claim as to Trial and Appellate Counsel

Lastly, the petitioner claims that trial counsel was ineffective in failing to object to the jury charge on intent and that appellate counsel was ineffective for failing to challenge the jury charge on direct appeal.   The petitioner provided no factual support for these claims, and appears to assert as to both attorneys that the trial court's instruction was erroneous as a matter of law.   The court finds that the petitioner has failed to prove these claims.

“[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal.”   (Internal quotation marks omitted.)  Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).   Moreover, “a habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel.   Legal contentions, like the currency, depreciate through over-issue ․ [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one ․ The effect of adding weak arguments will be to dilute the force of the stronger ones.”  (Internal quotation marks omitted.)  Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

The petitioner specifically claims that trial and appellate counsel should have challenged the trial court's jury instructions on the ground that they contained the entire statutory definition of intent.

“[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge ․ The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law ․ Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict ․ and not critically dissected in a microscopic search for possible error ․ Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury ․ In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.”  (Internal quotation marks omitted.)  State v. Guzman, 125 Conn.App. 307, 314–15, 7 A.3d 435 (2010), cert. denied, 300 Conn. 902, 12 A.3d 573 (2011).

Here, the petitioner was charged with murder, which requires a specific intent.   Pursuant to General Statutes § 53a–54a, “[a] person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person ․” (Emphasis added.)  “It has become axiomatic, through decisional law, that it is improper for a court to refer in its instruction to the entire definitional language of § 53a–3(11),³ including the intent to engage in conduct, when the charge relates to a crime requiring only the intent to cause a specific result.”  (Internal quotation marks omitted.)  State v. Brown, 97 Conn.App. 837, 848, 907 A.2d 118, cert. denied, 280 Conn. 944, 912 A.2d 477 (2006).  “[The Appellate Court] has further noted, however, that in cases in which the entire definition of intent was improperly read to the jury, the conviction of the crime requiring specific intent almost always has been upheld because a proper intent instruction was also given.”  (Internal quotation marks omitted.)  Id., 848.   That is, a trial court's improper instruction on general intent does not necessarily mean that the jury was misled.   See, e.g., State v. Brown, supra, 849 (“because the court properly instructed the jury on specific intent within the context of its instructions on the specific charges, it was not reasonably possible that the jury was misled by the court's [improper general intent] instruction”);  State v. Austin, 244 Conn. 226, 232, 710 A.2d 732 (1998) (“any possible risk of jury confusion over the element of intent was eliminated by the trial court's numerous proper instructions on the elements of murder”);  State v. Prioleau, 235 Conn. 274, 322, 664 A.2d 743 (1995) (no jury confusion where the court repeatedly instructed the jury properly on intent after having improperly recited the intent to “engage in conduct” language);  cf.  State v. Debarros, 58 Conn.App. 673, 683–84, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000) (jury likely misled where “the court either read or referred back to the improper instruction ten times” and where “the court read the instruction as a specific definition of the intent required for the crimes charged”).

In looking at the totality of the jury instructions in the petitioner's case, it is not reasonably possible that the jury was misled because the jury charge, on the whole, correctly informed the jury that in order to find the petitioner guilty of murder, it had to find that he possessed the specific intent to cause the victim's death.   While the trial court did improperly read the intent to “engage in conduct” language in its initial charge to the jury as part of its general definition of intent and in its reinstruction to the jury, where it simply reread its initial instructions, the trial court repeatedly instructed the jury that the state had to prove that the petitioner caused the death of the victim with the specific intent to cause his death.   In fact, the trial court instructed the jury approximately nine times that in order to find the petitioner guilty of murder it was required to find that he caused the death of the victim with the specific intent to cause his death.   Given these subsequent proper instructions, it is not likely that the jury was misled on the element of intent.   It thereby follows that neither trial counsel nor appellate counsel rendered ineffective assistance by failing to challenge the trial court's jury instructions.   There is no reasonable probability that the outcome of the petitioner's trial would have been different or that the petitioner would have prevailed in his direct appeal had either counsel challenged the trial court's jury instructions on intent.   The petitioner's claims fail.

CONCLUSION

For all of the foregoing reasons, the petition is denied.   Judgment shall enter for the respondent.

Cobb, J.

FOOTNOTES

FN1. The petitioner's third amended petition, dated November 9, 2012, includes a separate count claiming prosecutorial misconduct.   The petitioner withdrew that claim at the conclusion of the habeas trial..  FN1. The petitioner's third amended petition, dated November 9, 2012, includes a separate count claiming prosecutorial misconduct.   The petitioner withdrew that claim at the conclusion of the habeas trial.

FN2. The petitioner's third amended petition includes other claims regarding trial counsel's conduct that were withdrawn after the conclusion of evidence, including claims that trial counsel failed to:  (1) adequately cross examine, impeach or otherwise challenge the testimony of Donnette Williams;  (2) request a lesser included offense charge;  (3) object to the state's recitation and explanation of the law of self-defense in its closing argument;  (4) raise a pretextual claim and argument in the motion to suppress and at the hearing on that motion;  and that he (5) improperly withdrew the petitioner's suppression claim concerning the seizure of the weapon before the suppression hearing..  FN2. The petitioner's third amended petition includes other claims regarding trial counsel's conduct that were withdrawn after the conclusion of evidence, including claims that trial counsel failed to:  (1) adequately cross examine, impeach or otherwise challenge the testimony of Donnette Williams;  (2) request a lesser included offense charge;  (3) object to the state's recitation and explanation of the law of self-defense in its closing argument;  (4) raise a pretextual claim and argument in the motion to suppress and at the hearing on that motion;  and that he (5) improperly withdrew the petitioner's suppression claim concerning the seizure of the weapon before the suppression hearing.

FN3. General Statutes § 53a–3(11) provides:  “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct ․”.  FN3. General Statutes § 53a–3(11) provides:  “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct ․”

Cobb, Susan Quinn, J.