237871 v. Warden (2013)

MEMORANDUM OF DECISION

The petitioner, Rory Coleman, brings this petition for a writ of habeas corpus claiming that his trial attorney was ineffective in representing him at his criminal trial.   He seeks an order vacating his conviction and returning the matter to the criminal trial court for further proceedings.   For the foregoing reasons, the court denies the petition.

The petitioner was convicted after a jury trial of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a–278(b), possession of narcotics in violation of General Statutes § 21a–279(a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a–279(d).  The court sentenced the petitioner to a total effective sentence of twelve years (five years of which is a mandatory minimum) followed by three years of special parole.

The petitioner's conviction was affirmed on appeal.  State v. Coleman, 114 Conn.App. 722, 971 A.2d 46, cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009).   The Appellate Court found that the jury could reasonably have found the following facts:

On May 9, 2005, Robert Burgos and Brenon Plourde, members of the Hartford police department, and Peter Borysevicz, a special agent employed by the federal Drug Enforcement Administration, were members of a Hartford task force assigned to investigate narcotic trafficking crimes in Hartford and its surrounding towns.   While conducting surveillance of a house at 24 Florence Street in Hartford, Plourde was parked in an undercover minivan in a parking lot a few streets from the house.   A confidential informant previously had provided information to Burgos, Plourde and Borysevicz that crack cocaine was being cooked at the Florence Street location and was being distributed to drug dealers.   The informant had told the police that a man later identified as Kendrick Leggett was selling drugs in the neighborhood.   The informant had given a physical description of Leggett, who drove a gold Ford Explorer with tinted windows and Massachusetts rental plates.

At approximately 8 p.m., on May 9, 2005, a vehicle matching the description given by the informant arrived at 24 Florence Street.   A passenger got out, and the vehicle departed.   At approximately 8:30 p.m., the same vehicle entered a parking lot adjacent to the parking lot in which Plourde's minivan was parked.   Plourde radioed to Burgos and Borysevicz.   He notified them that the gold Explorer was in the parking lot in front of him.   Plourde was unable to see into the Explorer.

A few moments later, an Oldsmobile entered the parking lot and stopped next to the Explorer.   The driver of the Oldsmobile, later identified as the [petitioner], left his car and entered the Explorer.   When the [petitioner] entered the Explorer, the interior light went on, and Plourde was able to see the driver of the Explorer.   The driver matched the physical description of Leggett that had been given by the informant.   When the [petitioner] shut the passenger side door, the interior light turned off.

A few moments later, the interior light in the Explorer went on for a second time.   Plourde observed the [petitioner] appearing to examine something white in plastic that appeared to Plourde to be crack cocaine or powder cocaine.   The [petitioner] held the plastic with the white substance in his hand.   Several minutes later, the interior light came on for a third time.   Plourde saw the [petitioner] and Leggett counting out money on the dashboard.   Plourde notified Burgos and Borysevicz that the occupants of the Explorer were exchanging money.   He told them to proceed to the location of the Explorer and to make contact with the individuals inside.

Burgos parked his car directly in front of the Explorer to block it in and to prevent escape.   On leaving his vehicle, Burgos pulled out his firearm and instructed Leggett to keep his hands where he could see them.   Burgos observed a lot of movement from the driver, and money was ‘flying all over the place.’   After opening the door of the Explorer, Burgos found money on the dashboard, on Leggett's lap and in his hands.   The amount of cash found on and near Leggett totaled $7,700.

Borysevicz parked his car directly in front of the Oldsmobile.   Upon leaving the car, Borysevicz drew his weapon and told the occupants of the Explorer to put their hands up.   The [petitioner] complied by putting his hands up.   Borysevicz observed money totaling $2,046 in the [petitioner's] lap and on the floor at his feet.   He also found a plastic bag with a quantity of an off-white rock like substance on the floor of the passenger side of the vehicle.

A field test performed on the substance revealed that it was freebase cocaine, also known as crack cocaine.   It weighed four and one-half ounces, or 126 grams.   The crack cocaine was seized within 1500 feet of the Quirk Middle School, a public school for students in the seventh and eighth grades.

After waiving his Miranda rights, the [petitioner] provided the police with a handwritten, signed statement.   He claimed that he met with Leggett to purchase an ounce of crack cocaine.   After he handed Leggett $550, Leggett produced a bag of crack cocaine.   Immediately thereafter, the police approached the vehicle and told Leggett and the [petitioner] to put their hands up.

State v. Coleman, supra, 114 Conn.App. 724–26.

The petitioner filed this habeas petition on July 10, 2009.   The matter was tried to the court on January 9, 2013 on the petitioner's amended petition filed on September 5, 2012.   Trial counsel and the petitioner testified.   Both the petitioner and the respondent submitted exhibits into evidence.   The amended petition includes two counts.   The first count asserts ten claims of ineffective assistance against trial counsel while the second count asserts a claim of ineffective assistance against appellate counsel.   At the beginning of the habeas trial, the petitioner withdrew count two of the amended petition and all but one claim of ineffective assistance against trial counsel in count one.   The only remaining claim in count one of the amended petition is that trial counsel failed to file a request to charge.   As to this claim, the court allowed the parties to submit posttrial briefs.

DISCUSSION

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.”  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008);  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “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 [s]ixth [a]mendment.’  “ 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, 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 defendant of a fair trial, a trial whose result is reliable.   Strickland v. Washington, supra, 466 U.S. 687.

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. 690.   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.

(Internal quotation marks omitted.)  Id.

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.

The only claim remaining from the petitioner's amended petition is that trial counsel failed to file a request to charge.   In his posttrial brief, the petitioner explains that trial counsel performed deficiently by failing to file a request to charge on the element of possession that excluded any reference to “joint possession” and by repeatedly inviting the trial court to reinstruct the jury on this element as it had in its original charge, which included a reference to “joint possession,” thereby preventing appellate review of the allegedly erroneous jury instruction.

The following additional facts are relevant to this claim.   The trial court instructed the jury on the element of possession with respect to the charges as follows:  “For you to find the defendant guilty ․ the state must prove beyond a reasonable doubt that the defendant knowingly possessed or had cocaine under his control.   Possession may be actual or constructive.   Possession, whether actual or constructive, may be proven by either direct or circumstantial evidence.   Keep in mind that possession of the cocaine, not ownership, is all that is required.   Actual possession is established when it is shown that the defendant had actual physical possession of the cocaine.   Constructive possession is established when it is shown that the defendant exercised dominion and control over the cocaine and had actual knowledge of its presence.   Remember, then, constructive possession requires a showing of two things:  control and knowledge.   Constructive possession may be exclusive or shared by others.   The latter is known as ‘joint possession.’   Control is given its ordinary meaning;  that is to say, the defendant is in control of the cocaine when it is shown that he exercised a direct control over it.”

Trial counsel did not assert any exceptions to the instruction.   During deliberations, the trial court reread this instruction to the jury three times in response to notes it received from the jury regarding the element of possession.   Trial counsel did not object to the rereading of the instruction and even suggested that the trial court reread the instruction in response to the last note it received from the jury.

On direct appeal, the petitioner claimed that the trial court failed to instruct the jury properly on the element of possession.   Specifically, he claimed, inter alia, that the trial court improperly instructed the jury on joint possession, as the state's theory of the case did not support such an instruction.   The Appellate Court refused to review this claim on the ground that “the [petitioner] not only failed to raise the ․ claim at trial but also that he induced the underlying alleged error.”  State v. Coleman, supra, 114 Conn.App. 733.

The petitioner now claims that trial counsel should have requested a charge on the element of possession excluding any reference to “joint possession” and that he should have objected to the instruction given by the trial court and the rereading of this instruction to the jury because it included such a reference.   At the habeas trial, trial counsel testified that the trial court used boilerplate language in its charge on the element of possession and that he did not have “any quarrel” with it.   Besides trial counsel's testimony, no other evidence, such as expert testimony, was presented on this issue.

In determining whether trial counsel rendered ineffective assistance, it is necessary to address whether the trial court erred in its instructions to the jury.   See, e.g., State v. Kitchens, 299 Conn. 447, 498, 10 A.3d 942 (2011) (“claims of instructional error deemed waived on direct appeal will still be reviewed in habeas proceedings because the habeas court must address the merits of the underlying claim in deciding whether there was ineffective assistance of counsel”).   Since the petitioner has failed to prove that the trial court erroneously instructed the jury on “joint possession,” trial counsel cannot be said to have performed deficiently and the petitioner cannot be said to have been prejudiced thereby.   Accordingly, the petitioner's claim against trial counsel fails.

“The trial court must present instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and ․ its instructions [must be] suited to their guidance in the determination of those issues ․ The ultimate test of a court's instructions is whether taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.”   (Citation omitted;  internal quotation marks omitted.)  State v. Lepri, 56 Conn.App. 403, 412–13, 743 A.2d 626, cert. denied, 253 Conn. 902, 753 A.2d 938 (2000).  “[I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial ․ As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ․ we will not view the instructions as improper.”  (Internal quotation marks omitted.)  Umsteadt v. G.R. Realty, 123 Conn.App. 73, 79, 1 A.3d 243 (2010).  “[A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible ․ The trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding.”  (Internal quotation marks omitted.)   Id., 79.

In the petitioner's case, the court gave the standard charge for possession ¹ and was an evidentiary foundation for the trial court to instruct the jury on joint possession.   First, “[i]t is ․ possible for drugs to be jointly possessed.”  State v. Williams, 110 Conn.App. 778, 789, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008).   Second, as pointed out by the respondent in its posttrial brief, while a drug transaction is in progress, the seller and the buyer can both have dominion and control over the drugs.   The jury in the petitioner's case had evidence before it that the police arrested the petitioner while he was in the middle of a drug transaction.   Plourde testified at the petitioner's criminal trial that he saw the petitioner examining the drugs and counting out money with Legett, at which time he alerted Burgos and Borysevicz that the occupants of the car appeared to be in the middle of a drug deal and that they should move in and approach the car.   Burgos and Borysevicz testified that there was money all over the place, including on the petitioner and Legett, when they confronted them in the car.   Borysevicz further testified that he found cocaine on the floor of the passenger seat where the petitioner had been sitting.   In his statement to the police, which was admitted into evidence at his criminal trial, the petitioner admitted to being in the process of buying cocaine from Legett when the police came.   He claimed that the police appeared after he gave Legett $550 and as Legett was reaching down for the cocaine.   Given the evidence before the jury, it was proper for the court to instruct the jury on joint possession.   Accordingly, trial counsel cannot be faulted for failing to request a charge excluding joint possession or for inviting the trial court to respond to the jury notes by re-instructing them as originally charged, which included an instruction on joint possession.

CONCLUSION

For all of the foregoing reasons, the petition is denied.

Cobb, J.

FOOTNOTES

FN1. The language the trial court used in this case is the standard charge.   See http://www.jud.ct.gov/JI/criminal/Part2/2.11–1.htm.  FN1. The language the trial court used in this case is the standard charge.   See http://www.jud.ct.gov/JI/criminal/Part2/2.11–1.htm

Cobb, Susan Quinn, J.