Opinion
No. CV 04 4000182
May 4, 2006
MEMORANDUM OF DECISION
The petitioner, Anthony Carter, in his petition for a Writ of Habeas Corpus, initially filed on November 4, 2004, and amended for the fourth and final time on May 6, 2005, challenges his convictions for: assault in the first degree in violation of General Statutes § 53a-59(a)(5); attempt to commit assault in the first degree in violation of §§ 53a-49(a)(2) and 53a-59(a)(5); risk of injury to a child in violation of § 53-21(a)(1); and, criminal possession of a firearm in violation of § 53a-217(a)(1). In the amended petition, the petitioner has alleged fourteen specific bases upon which he asserts that relief should be granted by this Court: (1) insufficient evidence to prove beyond a reasonable doubt the element of intent for assault in the first degree; (2) the prosecution knowingly elicited perjured testimony during the criminal trial; (3) prosecutorial misconduct; (4) the arrest warrant contained false statements and material omissions in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); (5) the trial court impermissibly amended the information for the charge of assault in the first degree during its instruction to the jury; (6) illegal arrest for the charge of attempted assault in the first degree; (7) the trial court improperly instructed the jury on the element of intent; (8) the convictions for assault in the first degree and risk of injury to a child are legally inconsistent; (9) the convictions for assault in the first degree and attempted assault in the first degree violate the constitutional protection against double jeopardy; (10) General Statues § 53a-59, concerning assault in the first degree, is unconstitutionally vague; (11) General Statutes § 53-21, concerning injury to a child, is unconstitutionally vague; (12) ineffective assistance of trial defense counsel; (13) ineffective assistance of appellate counsel; and (14) actual innocence of the crime of assault in the first degree. The respondent submitted a return in answer to the amended petition, denying the petitioner's allegations and claiming that the petitioner was procedurally defaulted on claim one and claims three through eleven. The respondent further alleges that claims one and five are barred by the doctrine of res judicata. In reply to the allegation of procedural default, the petitioner asserts that his claims are reviewable because he can demonstrate cause and prejudice based on the ineffective assistance of trial and appellate counsel.
The amended petition contained a total of fifteen claims; however, one claim was withdrawn by the petitioner at the habeas trial on January 19, 2006.
Practice Book § 23-30(b) requires the state to raise the affirmative defense of procedural default in its return. Section 23-30(b) provides, in relevant part: "[t]he return . . . shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief."
As to the allegation of res judicata, the petitioner claims that the issues raised in counts one and five of the amended petition are different from those pursued on appeal. This Court agrees. The issues will therefore be addressed concerning their alleged procedural default. See infra, pp. 9-10, 13-14.
The petitioner's reply was properly submitted pursuant to Practice Book § 23-31, which provides:
(a) If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply. (b) The reply shall admit or deny any allegations that the petitioner is not entitled to relief. (c) The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition.
Trial of this matter was held before this Court on January 4 and 19 of 2006. The petitioner tried his case pro se and without the assistance of standby counsel. Testimony was received from the petitioner's appellate counsel, Attorney Mark Rademacher; his trial defense counsel, Attorney Gerald Klein; police officer Anthony Perez; and police officer Robert Dionne. Transcripts of the petitioner's criminal trial, as well as several other documents, were received into evidence. For the reasons set forth more fully below, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
There is no process by which a habeas court is authorized to appoint standby counsel. The right to counsel in a habeas proceeding, in actuality a civil matter, is statutory, not constitutional.
Based on a review of the testimony and evidence, this Court makes the following findings of fact:
Findings of Fact
1. The petitioner was the defendant in a criminal case in the Judicial District of Hartford, under Docket Number CR 01 553550, entitled State v. Carter. The petitioner was charged with assault in the first degree in violation of General Statues § 53a-59(a)(5), attempt to commit assault in the first degree in violation of §§ 53a-49(a)(2) and 53a-59(a)(5), risk of injury to a child in violation of § 53-21(a)(1) and criminal possession of a firearm in violation of § 53a-217(a)(1). Attorney Gerald Klein represented the petitioner throughout the criminal proceedings.
2. The jury could have reasonably found the following facts to be true regarding the underlying offense: "In the early part of July 2001, the [petitioner] and Maurice Miller became involved in a dispute over the sale of marijuana in a particular area of Hartford. On July 1, 2001, the [petitioner] telephoned Miller and told him that he could either engage the [petitioner] in a fair fistfight or the [petitioner] would shoot him on sight. In response, Miller armed himself with a Glock handgun.
3. On the evening of July 4, 2001, Miller and another man called 'Shorty' were standing by the side of a building in or near an alleyway on Enfield Street. The [petitioner] arrived in a rented red Blazer, exited the vehicle and then chased Miller along the alleyway while shooting at him. Miller saw a handgun in the [petitioner's] hand and noticed the muzzle flash. A bullet fired from the [petitioner's] gun struck and injured the victim, who was standing about one block away near a vehicle listening to music. After the [petitioner] stopped shooting, Miller turned around and began chasing him. Miller fired his weapon repeatedly at the [petitioner] until the [petitioner] reentered the red Blazer. Miller fired the weapon again as the [petitioner] drove away in the red Blazer.
4. The police arrived on the scene shortly after 6:45 p.m. They discovered eight .45 caliber shell casings. Forensic analysis led to the conclusion that all eight had been fired from the same handgun. The officers also discovered five nine millimeter Luger shell casings and one nine millimeter Luger metal jacket bullet. Later forensic analysis established that all of the nine millimeter casings had been fired from the same handgun.
5. On July 5, 2001, the [petitioner] informed the Manchester police about a hole in his rented Blazer. Through a forensic examination, the hole was identified as a bullet hole. The [petitioner] did not inform the police officer of the gunfight, but implied that the damage might have been caused by fireworks.
6. "While incarcerated in September 2001, the [petitioner] told William Brunson, his cell mate, about his dispute with Miller and the events of July 4, 2001. He also admitted that a bullet fired from his gun struck the victim." State v. Carter, 84 Conn.App. 263, 266-67, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004).
7. The jury convicted the petitioner on all charges. On August 2, 2002, the petitioner was sentenced to a total effective sentence of twenty-seven years incarceration. The petitioner's conviction was affirmed on appeal.
State v. Carter, 84 Conn.App. 263, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004).
8. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to the legal status of one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus action, having already been convicted, is not. "It is undoubtedly true that '[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before [this] Court as one who is 'innocent,' but on the contrary as one who has been convicted by due process of law." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 422-23, 641 A.2d 1356 (1994).
Procedural Default — Cause and Prejudice
In response to the petitioner's allegations in claim one and claims three through eleven of the amended petition, the respondent has raised the affirmative defense of procedural default. See Milner v. Commissioner of Correction, 63 Conn.App. 726, 733-34, 779 A.2d 156 (2001). "In habeas proceedings, it has become axiomatic that a petitioner may not raise collaterally through a habeas proceeding issues that could have been raised on direct appeal." Gray v. Commissioner of Correction, 84 Conn.App. 515, 518, 854 A.2d 45, cert. denied, 271 Conn. 930, CT Page 8187 859 A.2d 584 (2004). "The appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition." (Citations omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). If the petitioner fails in this burden of proof, the Habeas Court will not reach the merits of the claim. See Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).
The petitioner asserts that the cause for his failure to raise these claims at trial and on direct appeal, and the prejudice resulting therefrom, is based on the ineffective assistance of his trial and appellate counsel. "[T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . ." Id. "So long as [the petitioner was] represented by counsel whose performance is not constitutionally ineffective under the standard established under Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] . . . [there is] no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also Thorpe v. Commissioner of Correction, 73 Conn.App. 773, 780-81, 809 A.2d 1126 (2002). Unless this Court finds that the petitioner's trial defense counsel and appellate counsel were ineffective, then the affirmative defense of procedural default will be found to be proven.
In order to satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, supra, 466 U.S. 668, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the [s]ixth [a]mendment." Id., 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.
This standard is also used to assess the performance of appellate counsel. "The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue . . . Our Supreme Court has stated that it is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment. Valeriano v. Bronson, [ 209 Conn. 75, 87, 546 A.2d 1380 (1988)] . . . [I]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation. Sekou v. Warden, [ 216 Conn. 678, 690, 583 A.2d 1277 (1990)]." (Citations omitted; internal quotation marks omitted.) Vivo v. Commissioner of Correction, 90 Conn.App. 167, 171-72, 876 A.2d 1216 (2005).
"The seminal case of Bunkley v. Commissioner of Correction, [ 222 Conn. 444, 610 A.2d 598 (1992)], considered the prejudice prong of the Strickland analysis in claims of ineffective assistance of appellate counsel. Rejecting the petitioner's contention that the proper analytical focus is the probable result of the appeal, the Bunkley court explained that the proper focus instead is the result of the trial. Id., 454. To satisfy the prejudice prong, a petitioner must, thus, establish that . . . because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt. Id." (Internal quotation marks omitted.) Vivo v. Commissioner of Correction, supra, 90 Conn.App. 172-73.
For claim one and claims three through eleven, the petitioner asserts that the denial of his right to the effective assistance of trial and appellate counsel was the cause for his failure to raise these issues on direct appeal. He further argues that he suffered prejudice as a result of his counsels' failure to address these issues. When addressing cause and prejudice by way of an ineffective assistance of counsel analysis, a reviewing court can find against a petitioner on either part of the Strickland analysis, whichever is easier. See Strickland v. Washington, supra, 466 U.S. 697; Valeriano v. Bronson, supra, CT Page 8189 209 Conn. 86.
Count One: Insufficient Evidence to Prove Intent for Assault in the First Degree
The petitioner alleges that his counsel were ineffective for failing to raise the issue that there was insufficient evidence he had the requisite intent to support a conviction of assault in the first degree. During the underlying criminal proceeding, the petitioner's trial counsel, Attorney Gerald Klein, made two separate motions for a judgment of acquittal. The first motion, which was made at the close of the state's evidence, was based on the theory that the state failed to prove beyond a reasonable doubt that the petitioner caused physical injury to the victim. The second motion, which was made after the jury delivered its verdict, asserted that based on the evidence presented no reasonable fact finder could find the petitioner guilty of any of the four charges against him.
It is clear to this Court that the petitioner's trial counsel exercised a reasonable strategic approach on the sufficiency of the evidence issue. As testified to by Attorney Klein at the habeas trial, the theory of the defense was that the petitioner neither possessed nor fired a weapon, and even if he did that it was not his shot that caused injury to the victim. Based on the petitioner's testimony at the criminal trial that he was not carrying a weapon at the time of the incident, it makes sense that Attorney Klein would focus the motions for acquittal on the identity of the shooter and causation, rather than intent. "One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence." (Internal quotation marks omitted.) Edwards v. Commissioner of Correction, 87 Conn.App. 517, 526, 865 A.2d 1231 (2005). In any case, the sufficiency of evidence issue concerning intent was adequately preserved for appeal by Attorney Klein's second motion for judgment of acquittal.
Turning to the appeal, the petitioner's appellate attorney, Mark Rademacher, testified at the habeas trial that the petitioner did ask him to include the issue of intent; however, he declined to do so because he believed that there was no merit to the claim. Instead, as did Attorney Klein, he focused on the allegation that state failed to prove that the petitioner was the person who shot the victim. Moreover, it is apparent upon a review of the evidence that Attorney Rademacher did in fact raise the issue of intent on appeal; he merely took a different approach, arguing that the trial court improperly applied the doctrine of transferred intent to the facts of the case when instructing the jury. See Petitioner's Exhibit 4.
Keep in mind this is consistent with the petitioner's sworn testimony at his criminal trial.
This Court finds that the decision of both trial and appellate counsel not to focus on the sufficiency of the evidence claim regarding the element of intent was reasonably sound given the theory of the case pursued by the defense and the evidence presented at the criminal trial. Consequently, the petitioner has failed to "overcome the presumption that under the circumstances, the challenged action might be considered sound trial [and appellate] strategy." (Internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 690; see also Valeriano v. Bronson, supra, 209 Conn. 87. Without a finding of deficient performance by trial or appellate counsel, there can be no basis for cause for the failure to raise the issue on direct appeal. Moreover, the petitioner has not demonstrated how he was in any way prejudiced by counsels' alleged deficiency. Consequently, this Court finds, that the petitioner is procedurally defaulted on this claim.
In fact the petitioner himself failed to persuade the trial court on this claim. See State v. Carter, Superior Court, Docket Number CR01 553550, judicial district of Hartford (April 28, 2005, Mulcahy, J.) (finding argument in support of petitioner's pro se motion for judgment of acquittal alleging insufficient evidence for a conviction of first degree assault based on the state's failure to prove specific intent unavailing).
Count Three: Prosecutorial Misconduct
The petitioner next claims that his trial and appellate counsel were ineffective for failing to raise the issue of prosecutorial misconduct. Specifically, the petitioner asserts that during his criminal trial the state inappropriately "vouched for the credibility of witnesses," "directly commented on the petitioner's guilt" and "made comments amounting to unsworn testimony." Attorneys Klein and Rademacher were not asked any questions at the habeas trial about this issue. Regardless of that deficiency, based on the closing arguments given by the state at the petitioner's criminal trial it is clear that even if misstatements were made, and this Court was hard pressed to find any, they clearly do not rise to the level of prosecutorial misconduct. See Respondent's Exhibit A, May 16, 2002, pp. 25-36, 60-69. "[A]s the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom." (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 246, 833 A.2d 363 (2003). There is absolutely no evidence that the state attorney's conduct was in contravention of this standard and, therefore, no reason for the petitioner's trial or appellate counsel to assert a claim of prosecutorial misconduct. Consequently, this Court finds that the petitioner is procedurally defaulted as to this claim as well.
Count Four: Franks Violation
The petitioner next asserts that his trial and appellate counsel were ineffective because they failed to challenge the affidavit in support of his arrest warrant pursuant to Franks v. Delaware, supra, 438 U.S. 154. "In order for a defendant to challenge the truthfulness of an affidavit underlying a warrant at a Franks hearing, he must: (1) make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit; and (2) show that the allegedly false statement is necessary to a finding of probable cause . . . If the allegedly false statement is set aside, however, and there remains sufficient evidence to establish probable cause, a Franks hearing is not necessary . . . Although the Franks decision referred only to false statements in the affidavit, we have held that material omissions from such an affidavit also fall within the rule . . . As the Supreme Court noted in Franks, '[t]here is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory . . . There must be allegations of deliberate falsehood or of reckless disregard for the truth . . . Franks v. Delaware, supra, 438 U.S. 171." (Citation omitted; internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 363-64, 796 A.2d 1118 (2002). "[T]he test for determining whether an affiant's statements were made with reckless disregard for the truth is not simply whether the affiant acknowledged that what he . . . reported was true, but whether, viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his . . . statements or had obvious reasons to doubt the accuracy of the information he . . . reported." (Internal quotation marks omitted.) State v. Thatcher, 71 Conn.App. 516, 526, 802 A.2d 908, cert. denied, 261 Conn. 940, 808 A.2d 1134 (2002).
At the habeas trial, Attorney Klein testified that although the petitioner asked him to request a Franks hearing, he did not do so. Attorney Rademacher also testified that he did not raise a Franks issue on appeal. Based on the arrest warrant and supplement that were admitted into evidence, this Court finds that the information contained in those documents provides absolutely no support for a Franks violation. See Petitioner's Exhibit 5; Respondent's Exhibit D. Although there is some information in the warrant concerning shell casings found at the scene of the crime that is absent from the supplement, this is not a material omission. Furthermore, no evidence was presented at the habeas trial indicating what statements in the affidavit are allegedly false. The petitioner has failed to introduce sufficient evidence to convince this Court that he suffered from any alleged deficiencies in counsels' representation. Even if the failure to raise the Franks issue was found to be deficient, however, there is not even one iota of proof to support a finding of prejudice. Consequently, the petitioner is procedurally defaulted on this claim.
Count Five: The Trial Court Impermissibly Amended the Information
The petitioner next claims that his counsel were ineffective for failing to challenge the jury instructions on count one of the amended information. Specifically, he asserts that the trial court impermissibly instructed the jury that Maurice Miller was the "another person" under the language in the amended information charging the petitioner with assault in the first degree.
According to the criminal trial transcripts, after reading the exact text of count one of the amended information and the statutory language for assault in the first degree, the trial court instructed the jury on each element of the offense. See Petitioner's Exhibit 9, pp. A6-A10; Respondent's Exhibit A, May 16, 2002, pp. 100-04. The trial court then summarized what the state had to prove beyond all reasonable doubt to obtain a conviction: "One, that the defendant intend[ed] to cause physical injury to another person, Maurice Miller; and two, acting with that intent he caused physical injury to a third person, that is, Takira Gaston, a person under 10 years of age, and that he caused that injury to Takira Gaston by means of the discharge of a firearm." Petitioner's Exhibit 9, p. A10; Respondent's Exhibit A, May 16, 2002, p. 104.
Here, the petitioner merely quibbles over words, in essence making much ado about nothing. The insertion of Maurice Miller's name as part of the jury instructions for assault in the first degree does not amount to a constructive amendment of the information. The trial court changed nothing with the addition; it simply clarified to the jury exactly what the state had to prove to obtain a conviction for that offense. Attorney Klein's failure to take exception to the jury charge at the criminal trial, and Attorney Rademacher's decision not raise the issue on appeal, therefore, cannot be considered deficient performance. Consequently, the defense of procedural default raised by the respondent for this claim is found to be valid.
Indeed, in giving instruction to the jury, a trial judge has a right to marshal and comment upon the evidence. There is nothing improper in what the trial court did here.
Count Six: Illegal Arrest for Attempted Assault
The petitioner next claims that his trial and appellate counsel were ineffective for failing to assert that he was arrested without probable cause in violation of the fourth amendment of the United State constitution. Irrespective of the petitioner's allegations and the respondent having raised the affirmative defense of procedural default, the petitioner has presented no evidence in support of the claim. The arrest warrant demonstrates, contrary to the petitioner's assertions, that there was ample probable cause for the petitioner's arrest. See Respondent's Exhibit D. The warrant contained multiple eye witness statements that, in corroboration with the factual information concerning the scene, provided probable cause to believe that the petitioner committed the offense. Consequently, the claim is without merit and fails to overcome the respondent's procedural default defense.
Count Seven: Erroneous Instruction on Element of Intent
The petitioner claims that his counsel were ineffective for failing the challenge the trial court's reading of the entire statutory definition of intent during jury instructions. More precisely, he asserts that it was improper for the trial court to read the section of the statute concerning the conscious objective to engage in conduct because this portion relates only to general intent crimes and assault in the first degree is a specific intent crime.
"General Statues § 53a-3(11) defines intent, and the definition embraces both the specific intent to cause a result and the general intent to engage in conduct described by a statute defining an offense." (Internal quotation marks omitted.) State v. Holmes, 75 Conn.App. 721, 737, 817, A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003). Generally, when a criminal defendant is charged with a crime requiring a specific intent it is improper for the trial court to deliver the entire definitional language of § 53a-3(11) in its instruction to the jury. State v. Sivak, 84 Conn.App. 105, 110, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d 573 (2004). In the present case, the petitioner was charged with both assault in the first degree, which requires a specific intent to cause physical injury to another person, and injury to a child, a general intent crime. Because the petitioner was so charged, it was appropriate for the trial court to read the entire statutory definition of intent to the jury. In fact, the complete definition was read only once, at the beginning of the court's instructions along with other general principles of the law. See Petitioner's Exhibit, pp. A2-A4; Respondent's Exhibit A, May 16, 2002, pp. 90-92.
When specifically addressing the crime of first degree assault, however, the trial court repeatedly instructed the jury that it must find that the petitioner intended to cause Maurice Miller serious physical injury in order to convict. See Petitioner's Exhibit, pp. A8-A10; Respondent's Exhibit A, May 16, 2002, pp. 102-04. "Those numerous, specific and unambiguous instructions accurately directed the jury to a proper consideration of the evidence . . . [I]t strains reason . . . to believe that the jury could have misunderstood the court's charge to require that the jury base a finding of guilt on anything less than a finding that the [petitioner] possessed the specific intent to cause serious physical injury." (Citations omitted; internal quotation marks omitted.) State v. Holmes, supra, 75 Conn.App. 738. There was, therefore, no reason for Attorney Klein to take exception to the jury charge or for Attorney Rademacher to raise this issue on appeal. Because the petitioner has failed to demonstrate that he suffered from any alleged deficiencies in counsels' representation he has procedurally defaulted on this claim.
Count Eight: Trial Court Accepted Inconsistent Verdicts for Assault Injury to Child
The petitioner next alleges that his counsel are ineffective for failing to take exception to and raise on appeal the jury's finding of guilt for the crimes of first degree assault and injury to a child. He claims that the verdicts for these two offenses are legally inconsistent because they each require proof of a different state of mind to sustain a conviction. "The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements." (Internal quotation marks omitted.) State v. Knight, CT Page 8195 266 Conn. 658, 667, 835 A.2d 47 (2003).
As discussed above, assault in the first degree is a specific intent crime and injury to a child is a general intent crime. "It is not inconsistent . . . to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results. State v. Flynn, 14 Conn.App. 10, 27, 539, A.2d 1005, cert. denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed.2d 217 (1988). In Flynn, the defendant was convicted of, inter alia, assault on a police officer, which requires intentional conduct and reckless endangerment, which requires reckless conduct . . . The convictions resulted from an incident where the defendant, in a crowded bar, threw a beer bottle at several police officers . . . [The Connecticut Appellate Court] court concluded that the verdict was not inconsistent because the mental states went to different results. Accordingly, the jury could have found that, by throwing the bottle at the police officers, the defendant acted intentionally with the conscious objective to prevent the officers from performing their duty, while at the same time, he acted recklessly with respect to the other patrons in the bar." (Citations omitted; internal quotation marks omitted.) State v. Morascini, 62 Conn.App. 758, 761-62, 772 A.2d 703, cert. denied, 256 Conn. 921, 774 A.2d 141 (2001).
Based on the foregoing and the facts of the petitioner's case, the jury could have reasonably found that the petitioner discharged his firearm with the intent to physically injury Maurice Miller, and that this act was at the same time likely to impair the health of a child, Takira Gaston. There was no reason, therefore, for Attorneys Klein or Rademacher to assert a legally inconsistent verdict claim. Consequently, this Court finds that the petitioner has procedurally defaulted.
Count Nine: Double Jeopardy
Next, the petitioner alleges that his counsel were ineffective for failing to challenge his convictions for assault in the first degree against Takira Gaston and attempted assault in the first degree against Maurice Miller based on a violation of his protection against double jeopardy. "The double jeopardy clause of the fifth amendment to the United States constitution provides: '[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .' The double jeopardy clause, therefore, protects a defendant from multiple punishments for the same offense . . . To be entitled to this type of double jeopardy protection, the defendant must satisfy both prongs of a two prong test . . . First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met . . . Because there is no dispute in this case that the charges arose out of the same transaction, the sole issue is whether the crimes constitute the same offense." (Citations omitted; internal quotation marks omitted.) State v. Jenkins, 40 Conn.App. 601, 610-11, 672 A.2d 969, cert. denied, 237 Conn. 918, 676 A.2d 1374 (1996).
Generally, to determine whether a person was convicted twice of the same offense the test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932), is applied. See State v. Chicano, 216 Conn. 699, 707, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct 2898, 115 L.Ed.2d 1062 (1991). In the present case, however, the petitioner was convicted of perpetrating crimes against two separate and distinct victims: Maurice Miller and Takira Gaston. "A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore when two or more persons are the victims of a single episode there are as many offenses as there are victims." State v. Lytell, 206 Conn. 657, 666, 539 A.2d 133 (1988); see also State v. Jenkins, supra, 40 Conn.App. 612. There was no reason for either counsel to raise a double jeopardy issue at trial or on appeal; therefore, this Court finds no merit in the petitioner's allegation of ineffective assistance of counsel. Accordingly, the petitioner has procedurally defaulted on his double jeopardy claim.
Counts Ten and Eleven: Constitutionality of General Statutes §§ 53a-59 and 53-21
The petitioner next alleges that his trial and appellate counsel were ineffective for failing to challenge the constitutionality of General Statues § 53a-59, concerning assault in the first degree, and § 53-21, concerning injury to a child. Specifically, the petitioner alleges that these statues are unconstitutionally vague because they failed to provide him with fair warning that his actions were prohibited under the law. At the habeas trial, Attorney Klein was not asked any questions about these issues; therefore no evidence was submitted that would enable this Court to review the petitioner's allegation concerning the ineffective assistance of trial counsel. Attorney Rademacher, however, testified that he did not raise the void for vagueness issues on appeal because he felt that there was no basis for doing so. This Court, therefore, will only examine the petitioner's allegation as it pertains to the alleged ineffective assistance of appellate counsel.
"The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. The Connecticut constitution also requires that statutes with penal consequences provide sufficient notice to citizens to apprise them of what conduct is prohibited . . . The vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement . . . If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phases there lurk uncertainties." (Citations omitted; internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 158-59, 778 A.2d 955 (2001). "[A] penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning." (Internal quotation marks omitted.) State v. Tucker, 50 Conn.App. 506, 510, 718 A.2d 979 (1998), appeal dismissed, 248 Conn. 668, 728 A.2d 1097 (1999).
The Connecticut Supreme Court has described the right to fair warning as a "principle which mandates that as a matter of due process a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid . . . [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law . . ." (Citations omitted; internal quotation marks omitted.) State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). To determine if fair warning was given entails a review of existing case law to ascertain whether the petitioner had adequate notice that his acts violated § 53-21 and an examination as to "whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding." (Internal quotation marks omitted.) State v. Tucker, supra, 50 Conn.App. 511.
General Statues § 53a-59
The petitioner claims that General Statues § 53a-59 is unconstitutionally vague because it provided no warning that he could be held accountable for an intentional assault on a person who was not the intended victim of that assault. Although this claim was not specifically raised by Attorney Rademacher, the issue was effectively resolved on the petitioner's direct appeal to the Appellate Court.
The petitioner was specifically charged and convicted under General Statutes § 53a-59(a)(5). Section 53a-59(a)(5) provides in relevant part: "A person is guilty of assault in the first degree when . . . with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm." (Emphasis added.) On appeal, the petitioner unsuccessfully argued that transferred intent can only be applied to situations in which the presence of the victim is known to the alleged perpetrator of the assault. State v. Carter, supra, 84 Conn.App. 267. In examining the petitioner's claim, the Appellate Court concluded that according to its plain language, the assault statute provides for intent to be transferred to someone other than the intended victim. Id., 270. The court further held that "the plain language does not contain any requirement that the [petitioner] be aware of the presence of the unintended victim." Id. Therefore, although the issue of void for vagueness was not raised specifically, the Appellate Court indirectly addressed the issue of whether § 53a-59 provides fair warning that intent may be transferred to an unknown and unintended victim. Consequently, this Court finds that there is no basis for cause and the petitioner has procedurally defaulted on this claim.
General Statues § 53-21
The petitioner claims that General Statutes § 53-21 is unconstitutionally vague because it failed to provide warning that he could be held accountable for injuring a child who he did not know was present at the scene of the alleged offense.
"It is well settled that § 53-21 proscrib[es] two general types of behavior likely to injure physically or impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being." (Internal quotation marks omitted.) State v. Jason B., 248 Conn. 543, 567, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S.Ct 406, 145 L.Ed.2d 316 (1999). The petitioner was charged and convicted under the "any act" portion of General Statutes § 53-2(a)(1), "in that he 'discharged a firearm and thereby impaired the health of [the victim], a child under sixteen years of age.'" State v. Carter, supra, 84 Conn.App. 275.
General Statutes § 53-21(a) provides, in relevant part: "Any person who (1) willfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony for a violation of subdivision (1) . . ." (Emphasis added.)
There is a significant amount of caselaw addressing the vagueness of § 53-21 with respect to proscribed sexual behavior toward a child; however, no such body of law exists concerning facts relevant to the petitioner's case. "[A]s a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue." State v. Pickering, supra, 180 Conn. 57. With this in mind and looking at the facts and circumstances surrounding the petitioner's claim, the relevant inquiry is whether a person of ordinary intelligence would reasonably know that the petitioner's acts were proscribed under the "any acts" portion of § 53-21. It is without question that a person with basic common sense and ordinary intelligence would know that discharging a firearm on a populated residential city street is an act likely to injure or impair the health of a child. Indeed, it would be an absurdity of the first order to suggest otherwise. This is so regardless of whether the perpetrator is aware that a child is in the immediate vicinity.
Given the facts of the petitioner's case and the "heavy burden of establishing beyond a reasonable doubt that the statute is in fact unconstitutional"; State v. Branham, 56 Conn.App. 395, 400, 743 A.2d 635, cert. denied, 252 Conn. 937, 747 A.2d 3 (2000); it was not unreasonable for Attorney Rademacher to decide against pursuing a vagueness challenge to § 53-21. He attacked the petitioner's conviction under § 53-21 from various angles; those he thought that would be the most effective in overturning the petitioner's conviction on appeal. His approach should not be subjected to intense scrutiny at this time, utilizing the benefit of hindsight. Without a finding of deficient performance by appellate counsel, there can be no basis for cause for the failure to raise the issue on direct appeal. Consequently, this Court finds that the petitioner has procedurally defaulted on this claim.
In view of the foregoing, this Court finds these matters to be procedurally defaulted. The petitioner has failed to introduce sufficient evidence to demonstrate cause for the failure to appeal and prejudice accruing from the ineffective assistance of trial or appellate counsel. Accordingly, this Court finds that there is no basis upon which relief can be granted. Count one and counts three through eleven of the amended habeas petition are hereby dismissed. Moreover, such a determination on the above claims effectively resolves those remaining counts directly alleging that the petitioner was denied the effective assistance of trial and appellate counsel. Therefore, counts twelve and thirteen of the amended petition are also dismissed.
Knowing Use of Perjured Testimony
In count two of the amended petition, the petitioner asserts that the state knowingly elicited perjured testimony from two witnesses during the criminal trial. The proof offered by the petitioner in support of this claim is woefully inadequate. No testimony was given nor any exhibits entered at the habeas trial concerning this claim. Without evidence, this Court cannot examine the merits of the petitioner's claim. Accordingly, count two of the amended petition is summarily dismissed.
Actual Innocence
The petitioner finally alleges that he is actually innocent of the crimes of which he stands convicted. It is well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege that the petitioner's state or federal constitutional rights have been violated. See Summerville v. Warden, supra, 229 Conn. 422. However, in order to prevail in such a claim, a petitioner must overcome two very large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner of Correction, CT Page 8201 242 Conn. 745, 791-92, 700 A.2d 1108 (1997).
Unlike the original criminal trial in which the petitioner enjoyed the presumption of innocence with the burden of proving his guilt beyond all reasonable doubt resting upon the prosecutor, in the habeas proceeding, the burden of proof rests upon the petitioner. This is so because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, supra, 427. Furthermore, there is a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility . . ." Id.
The burden of proof in a habeas proceeding for the claim of actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." Miller v. Commissioner of Correction, supra, 242 Conn. 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
Moreover, there is a threshold question regarding the issue of whether the allegation of actual innocence should even be considered by this Court. Although having been presented with several opportunities to do so, the Connecticut Supreme Court has so far declined to resolve the question of "whether a habeas petitioner's claim of actual innocence must be based on new evidence," therefore leaving it "an open question in our habeas jurisprudence." Clarke v. Commissioner of Correction, 249 Conn. 350, 358, 732 A.2d 754 (1999). The state Appellate Court, however, has concluded that a claim of actual innocence must be supported by newly discovered evidence. Clarke v. Commissioner of Correction, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 358, 732 A.2d 754 (1999), citing CT Page 8202 Williams v. Commissioner of Correction, 41 Conn.App. 515, 527, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). "This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Batts v. Commissioner of Correction, 85 Conn.App. 723, 726-27, 858 A.2d 856, cert. denied, 272 Conn. 907, 863 A.2d 697 (2004). "Due diligence does not require omniscience . . . Due diligence means doing everything reasonable, not everything possible . . . The petitioner for a new trial must be diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted." (Citations omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, supra, 41 Conn.App. 528-29.
Consequently, although the "newly discovered evidence" rule is an open appellate issue, it is not an open issue for a trial court. As a Superior Court, this Court is indeed required to follow the precedent of the Appellate Court. Since Clarke clearly endorses the newly discovered evidence rule, this Court shall apply that rule.
Pursuant to the above standard, the petitioner has not submitted any newly discovered evidence and has therefore failed to even make the threshold requirement by which a claim of actual innocence may be pursued. In the present case, the petitioner was found guilty following a contested trial to a jury. He enjoyed the representation of competent counsel who presented a cogent defense. The jury was simply not persuaded. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that jury's verdict and order a new trial. Here, there is no basis upon which to do so. The petitioner has failed to meet his burden of proving actual innocence with clear and convincing evidence that no reasonable finder of fact would conclude that the petitioner is guilty.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.