Opinion
No. CV 03 0825394
December 17, 2009
MEMORANDUM OF DECISION
The petitioner, Michael Hilton, also known as Jeromie Thorpe, filed a petition for a writ of habeas corpus on May 2, 2003, challenging the legality of his detention. He was originally charged in the Judicial District of Hartford, under Docket No. CR 92-0429854, with murder in violation of General Statutes § 53a-54a, possession of narcotics in violation of General Statutes § 21a-279(a) and possession of narcotics with intent to sell in violation of General Statutes § 21a-278(b). The petitioner entered pleas of not guilty and elected a trial by jury. During the pretrial phase of the prosecution, the petitioner was represented by Attorney Steven Meo of Hartford, Connecticut. At trial, the petitioner was represented by Attorney F. Mac Buckley also of Hartford. On April 7, 1995, a jury returned a verdict of guilty on all counts. Thereafter, the court, (Koletsky, J.), sentenced the petitioner to a term of imprisonment of forty-five years on the murder conviction and fifteen years on the drug convictions, consecutive to the sentence for murder, for a total effective sentence of sixty years.
On or about February 23, 1995, the prosecution filed a substitute information charging the petitioner with murder in violation of General Statutes § 53a-54b (capital felony), possession of narcotics in violation of General Statutes § 21a-279(a) and possession of narcotics with the intent to sell in violation of General Statutes § 21a-278(b). The reference to § 53a-54b, the Appellate Court concluded, was a result of a scrivener's error, as "[t]he case . . . was tried pursuant to § 53a-54a and the trial court instructed pursuant to § 53a-54a." State v. Hilton, 45 Conn.App. 207, 208 n. 2, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert denied, 522 U.S. 1134, 118 S.Ct. 1091, 140 L.Ed.2d 147 (1998).
The petitioner unsuccessfully appealed his convictions. See State v. Hilton, 45 Conn.App. 232, 694 A.2d 830, cert denied, 243 Conn. 925, 701 A.2d 659 (1997). On appeal, the petitioner was represented by Buckley and Attorney Robert Pickering. A petition for a writ of certiorari to the United States Supreme Court was denied. See Hilton v. State of Connecticut, 522 U.S. 1134, 118 S.Ct. 1091, 140 L.Ed.2d 147 (1998).
The petitioner's present petition previously went to trial before the Honorable Judge Nina Elgo on diverse dates in 2005. On September 14, 2005, the court, (Elgo, J.), denied the petitioner's petition with respect to his claims of ineffective assistance of his trial, appellate and prior habeas counsel but restored his right to sentence review. See Hilton v. Warden, Superior Court judicial district of Tolland, Docket No. CV03 0825394 (September 14, 2005, Elgo, J.). The petitioner appealed the decision; however, upon discovering that the record of the habeas trial was incomplete, the petitioner moved for a new trial, which the court, (Elgo, J.), granted on September 25, 2008. See Hilton v. Warden, Docket No. CV 03 0825394. On May 28, 2009, the petitioner amended his petition for the third time.
The third amended petition came before this court for re-trial on the merits on July 8 and September 25, 2009. At trial, the petitioner, Attorney Buckley and Dr. Kenneth Selig testified. The petitioner submitted exhibits including transcripts and records from his court proceedings, criminal trial, prior habeas proceedings and appeal. (Exhibits 1(a)-(f), 2, 6 and 7.) In addition, the petitioner submitted an affidavit dated May 19, 2005 from Assistant State's Attorney John Massameno. (Exhibit 4.) The respondent introduced into evidence a statement from Yolanda Moody. (Exhibit A.)
FACTS
The following facts, which the jury reasonably could have found in the petitioner's underlying criminal trial, are taken from the Appellate Court's decision on direct appeal:
"On October 7, 1989, at approximately, 4:20 a.m., Officer Christopher Hopkins of the Hartford police was dispatched to 241 Westland Street in Hartford, where he found the body of the victim, Thomas Byrd, near the curb. The cause of death was a .25 caliber bullet that had entered his chest, lungs and heart.
"At the time of the shooting, the victim's girlfriend, Stephanie Jones, was living with her children and her mother in one of two apartments on the third floor of 241 Westland Street, a three-story building with two apartments on each floor. The victim visited the apartment every evening after work. Jones' grandmother and her grandmother's husband lived in an apartment on the second floor. Yolanda Moody and Sonia Moody lived on the first floor. The defendant was Yolanda's boyfriend and was frequently present in the Moodys' apartment.
"Drug trafficking occurred in the Moodys' apartment. People often knocked on Jones' grandmother's door at night looking for the Moody sisters and narcotics. Relations were tense between Jones and her relatives and the Moody sisters because Jones' grandmother had informed the landlord that the Moodys were selling drugs out of their apartment.
"In the early morning of October 7, 1989, Jones was present in her apartment with the victim, her mother and her friend Stephanie White. Between 2:30 and 3 a.m., an argument broke out between Jones and Sonia Moody after a male and a female, who were looking for drugs, knocked first on Jones' door and then on her grandmother's door. Soon thereafter, Jones, her mother and White went downstairs, where they quarreled and fought with the Moody sisters in the inner hallway on the first floor. Three men emerged from the Moodys' apartment and watched the fight from the doorway. The defendant also observed the fight from the doorway of the Moodys' apartment. After approximately five minutes, the defendant ran into the Moodys' apartment and returned with a gun. He pointed the gun at the participants in the fight, waved it around, and then pointed it directly at the victim, who was holding Jones' grandmother on the staircase. The Moody sisters ran back into their apartment. White, the three men and the victim ran outside. The defendant followed directly behind the victim. When the victim was between the inner hallway and an outer hallway, the defendant shot and killed him.
"The police investigation of the homicide and search of Westland Street resulted in the discovery of evidence concerning not only the homicide, but also drug trafficking. In the inner hallway of that building, there was a pool of blood, blood drops, and a spent .25 caliber cartridge casing. In a hallway leading to the rear bedroom of the Moodys' apartment, the police found a blood stained lactose bottle discarded in a waste basket. In Yolanda's bedroom, the police discovered a set of car keys, a double beam scale, a roll of plastic sandwich bags, a note pad, a pager, a tote bag containing approximately one and one-half pounds of unpackaged raw rice, a photograph in the frame of a dresser mirror of the defendant posing with a rifle, an album of photographs of the defendant and Yolanda Moody and their love letters. In the front bedroom of 241 Westland Street, the police found papers and an address book belonging to Sonia Moody.
"The police also searched two cars near the scene of the shooting, a Toyota Corolla and a Plymouth Grand Fury. The Plymouth was owned by Sonia Moody, and its keys were found by the police in the rear bedroom of 241 Westland Street. In the Plymouth's trunk the police found a Heckler and Koch MP5 assault rifle and two loaded clips of ammunition. The Toyota was owned by Yolanda Moody, but was driven by the defendant more frequently than by Yolanda. Inside the Toyota's trunk, the police found a blue cosmetic bag holding $24,057 in thousand dollar bundles, a triple beam scale, and a box holding a spoon and a plastic bag that was embedded in rice and contained approximately 44 grams or 1.36 ounces of a white powder that was 84 percent cocaine in salt form"
Following the homicide, the state attempted but failed to locate the defendant. An arrest warrant was issued for him in February 1990. The police learned in the summer of 1992 that he was incarcerated in a county correctional center in New Jersey. He was brought by automobile back to Connecticut, and, during this trip, he related to the police that he had waited at the scene of the shooting until the arrival of the police but then departed by bus for New York City because there was an outstanding warrant for his arrest in Washington, D.C. The defendant also said that neither the Toyota nor the Plymouth or their contents belonged to him and that the rifle in the Plymouth had been left there by someone he did not know. He commented that he had used the rifle in the Plymouth to pose for the picture that the police found in the rear bedroom of the Moodys' apartment. He also stated that he had been in the hallway of 241 Westland Street during a fight between the Moody sisters and other individuals and that he had heard a shot, but he did not know who had fired it. The defendant specifically claimed that he did not shoot the victim." State v. Hilton, supra, 45 Conn.App. 209-12.
DISCUSSION
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 one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of innocence, the petitioner in a habeas corpus petition, having been convicted of a crime, 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. 358], 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Colins [ 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 the 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).
Here, the petitioner alleges ineffective assistance of Buckley in both his capacity as the petitioner's trial counsel and appellate counsel.
The petitioner does not mention Attorney Pickering, who also represented him on appeal, in his petition. Additionally, on the date of trial, the petitioner withdrew count three of his petition, in which he alleges ineffective assistance of habeas 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). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. 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 . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). 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, 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).
I. Ineffective Assistance of Trial Counsel
The petitioner claims his trial counsel was ineffective and that he was prejudiced by his counsel's allegedly deficient conduct, which should warrant this court granting him a new trial. The petitioner sets forth no less than fourteen (14) different ways in which he claims he was deprived of his right to counsel guaranteed to him both under the State constitution and the United States constitution. The court shall address each of these claims in turn.
Firstly, the petitioner asserts that Buckley failed to prepare for trial in that he failed to undertake an adequate investigation into potentially exculpatory witnesses, namely Sidney Mark and Valerie Davis. (Third Amended Petition, ¶ 7(A)(i).)
"[I]n the context of a claim for ineffective assistance of counsel, [t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 64, 951 A.2d 520 (2008).
Here, there was no evidence introduced at trial to persuade this court that had Buckley called Sidney Mark, Valerie Davis, or anyone else for that matter, that their testimony would have been favorable to the petitioner, such that counsel's failure to produce them should lead this court to conclude that the integrity in the verdict has been undermined. There was before this court only brief testimony from Buckley that he did not recall the name, Sidney Mark. Other than this, the petitioner submitted no credible evidence probative on this issue. The court cannot speculate as to either the substance or the import of what any particular witness might have said or testified to. Accordingly, the court finds that the petitioner has, if not abandoned this claim, failed to meet his burden of proof as to it.
The petitioner next claims that Buckley was ineffective by failing to "[e]nsure that he had received from the state all materials to which the defense was entitled." (Third Amended Petition, ¶ 7(A)(ii).) The petitioner also complains that Buckley did not "[u]ndertake an adequate investigation into the state's witnesses." (Third Amended Petition, ¶ 7(A)(iii).) In essence, both of the above described claims are claims involving failure of trial counsel to investigate the case.
"Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the right to effective assistance includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction . . . Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002). "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). The petitioner has not met this burden.
There is an absence of evidence to lead this court to conclude that a manifest injustice has occurred regarding these allegations of ineffective assistance of counsel. Buckley testified that he was an experienced attorney who had previously defended more than one hundred murder cases by the time he represented the petitioner. He attended undergraduate school at the College of the Holy Cross. He received his law degree in 1967 from the Georgetown University Law Center. He was a federal prosecutor, public defender for five years, and had worked with the U.S. Department of Justice in Washington, D.C. Sometime later, Buckley partnered with fellow criminal lawyer and former Assistant U.S. Attorney, Hubert Santos. Buckley's practice was seventy percent criminal with the remainder focused on personal injury litigation. Buckley testified that he retained and used the services of a private investigator, Mr. Donald Gates, to speak with the people who had been at the scene of the crime and to find other witnesses. The petitioner has not demonstrated what benefit any additional investigation would have revealed. Moreover, the petitioner has not demonstrated that he was entitled to a particular piece of investigation or information from the state's file, and that if obtained, it would likely have made a difference in the outcome of the underlying trial. In short, the petitioner has failed to prove that Buckley was deficient with respect to his investigation of the contents of the state's file, of witnesses or of any other aspect of the case. Accordingly, the claims in paragraphs 7(A)(ii) and (iii) are unproven.
In paragraph 7(B) of his third amended petition, the petitioner claims that Buckley failed to adequately prepare him for trial. The petitioner's testimony that he was unprepared for trial is not credible.
During the habeas trial, Buckley credibly testified he reviewed the state's evidence including all reports, statements and information from the prosecution's file with the petitioner. The petitioner was steadfast in maintaining his innocence. It is clear that Yolanda Moody implicated the petitioner in drug possession and/or distribution and weapons possession, including the brandishing of a small caliber pistol and the posing for a photograph with a rifle. (Exhibit A.) It is equally clear that the prosecution's theory of the case was that the petitioner killed the victim while attempting to control what he considered his drug selling turf. (Exhibit 1(a), pp. 10-13; Exhibit 1(e), p. 2154.) Buckley testified that he explained the sixty years exposure which the petitioner faced by proceeding to trial. He believed it was a "winnable" case, especially since the prosecution was unable to produce Moody to testify. Additionally, Buckley did not have to prepare the petitioner to testify. At the time of his criminal trial, the petitioner was wanted in other jurisdictions on outstanding warrants. (Exhibit 1(f), pp. 48-50.) There was, therefore, considerable uncharged misconduct evidence which faced the petitioner if he chose to testify. The petitioner also gave an incriminating statement to a Hartford Detective. (Exhibit 1(d); pp. 1144-50.) In the statement, the petition admitted being present at the Westland Street address when a fight broke out and a gun went off. (Exhibit 1(d), pp. 1644-47.) The detective testified at trial. (Exhibit 1(d), pp. 1619-81.) Buckley had a strategy of attempting to attack the credibility of the state's witnesses. His strategy did not include eliciting testimony from the petitioner.
Based on the foregoing, the court finds that there is insufficient evidence to establish that trial counsel failed to prepare the petitioner for trial. Accordingly, the petitioner has failed to prove his claim in paragraph 7(B).
Paragraphs 7(C) through 7(G) of the petitioner's third amended petition essentially allege that Buckley failed to communicate with the petitioner prior to and during trial, failed to object to hearsay evidence, failed to introduce or examine exculpatory evidence and failed to object to evidence. The court concludes there is no basis for any of these claims.
The court had occasion to listen to and observe the testimony of the petitioner. The petitioner was quick to respond to questions both on direct and cross examination. He appeared to have above average intelligence. During his testimony, Buckley described the petitioner as intelligent and soft spoken. The court, frankly, cannot accredit the petitioner's testimony that Buckley seldom, if ever, spoke with him on matters of substance. The court accredits Buckley's testimony that he met with the petitioner on numerous occasions to discuss various aspects of his defense and that the petitioner knew the downside of going to trial.
As for the petitioner's allegations regarding Buckley's failure to introduce exculpatory evidence or to object to prosecution's evidence, Buckley testified that he retained the services of an investigator, Gates, to go into the neighborhood of the alleged crimes to find, if possible, favorable witnesses or evidence for the petitioner's case. He found none. Trial counsel cannot be faulted for not finding that which did not exist. Moreover, Buckley sought to keep out inculpatory evidence obtained from a car paid for by the petitioner but owned by Moody, including but not limited to, two rifles, ammunition, a drug scale, currency in excess of twenty-four thousand dollars and a large quantity of cocaine. (Exhibit 1(a).) It is also clear from review of the trial transcript that Buckley engaged in meaningful cross examination of the state's witnesses, including their ability to perceive and recall events. (Exhibits 1(b)-(f).) There is equally no showing that counsel's failure to object to testimony which may have been inadmissible on some basis such as hearsay was done without plan or purpose. "[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency." (Internal quotation marks omitted.) Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985). "[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment." (Internal quotation marks omitted.) Id., 801. Accordingly, this court concludes there is no merit to the claims alleged in paragraphs 7(C) through 7(G) of the petitioner's third amended petition.
In paragraphs 7(H) and 7(M) of his third amended petition, the petitioner sets forth similar claims. In paragraph 7(H), the petitioner alleges that Buckley was impaired by an emotional or mental illness which he knew or should have known would limit his ability to be effective. Paragraph 7(M) is another articulation of the same claim, where petitioner alleges that a "medical condition" compromised Buckley such that he had "an inflated sense of legal prowess" which "prevented [him] from providing [the petitioner] with an accurate estimate of [the petitioner's] chances of prevailing at trial." At the present habeas trial, as well as at the habeas trial before Judge Elgo, much emphasis was made that Buckley, throughout periods in his life, conducted his affairs in what was described as a hippomanic state. (Exhibit 7, pp. 39-41.)
Even where an attorney's mental state is the basis of a claim of ineffective assistance of counsel, the petitioner is required to "identify the acts and omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland v. Washington, supra, 466 U.S. 690. Here, the petitioner presented expert testimony from Dr. Kenneth Selig, credentialed in both psychiatry and law. Selig obtained his undergraduate degree from the University of North Carolina at Chapel Hill where he was a member of Phi Beta Kappa. He garnered his medical degree from Boston University and his law degree from Yale University. Selig has testified as an expert in other courts in the state of Connecticut including the Superior Court, the courts of Probate and the U.S. District Court of Connecticut. Based on his review of Buckley's prior testimony from July 2005, Selig described Buckley's self-admitted hypomania as an abnormal mood state, characterized by euphoria, grandiosity, feeling on top of the world, a reduced need for sleep, rapid speech, moving from one idea rapidly to another, increased energy (when compared to a normal person) and feelings of unusual ability. Selig went on to opine that such a condition generally does not impair one's capacity to function and actually may enhance it. In fact, when asked, Selig was unable to render an opinion on whether any hypomanic condition on the part of Buckley affected his ability as an attorney.
At the habeas trial in 2005, Buckley testified that "[hypomania] never affected [his] focus in the courtroom." (Exhibit 7, p. 39.) He further testified: "Hypomania can be a good thing . . . [A]ny psychiatrist will tell you that." (Exhibit 7, p. 41.) Indeed, as noted supra, the petitioner's own expert, Selig, so testified. At the present habeas trial, Buckley testified that he was not suffering any deleterious effects due to hypomania, depression, or alcohol abuse during the petitioner's trial or appeal. The petitioner's criminal case proceeded to trial in February and March 1995. (Exhibits 1(a)-(f).) Following his conviction, he was sentenced in June of that same year. (Exhibit 1(f).) Buckley handled the appeal in 1997-1998. It was not until 1999, he testified, that his hypomania led to a depressive state and his personal and professional life began a downward spiral.
The petitioner testified that Buckley bragged he would win his case and that he boasted that he wore a "power suit." It is conceivable that once the state was unable to produce Moody, counsel became confident, perhaps over confident, in the petitioner's chance for success at trial. The court accredits so much of the petitioner's testimony that Buckley at times was braggadocio. However, that is a far cry from concluding that the petitioner was denied effective representation on the basis that Buckley was compromised mentally. Even accepting the testimony of the petitioner's own expert psychiatric witness, Selig, on the issue of hypomania, there is insufficient evidence to conclude that Buckley was in any way impaired or that he labored under some type of mental or emotional distress which caused or contributed to poor judgment or conduct rising, or stooping if you will, to deficient performance in the course of representing the petitioner. Hypomanics, Selig testified, can be flamboyant and self-aggrandizing.
Clearly, Buckley was confident in his own abilities and assessment of the case. He did, however, take time to review the elements to be proven, the strengths and weaknesses of the prosecution and defense, and the exposure which the petitioner faced, if convicted. The quality and depth of cross examination of the state's witnesses and the ferocity of the arguments advanced by Buckley in numerous instances found in the trial record contradict the petitioner's claim that Buckley, in common parlance, was significantly off his professional game. Immodesty and lack of confidence are rare characteristics for successful trial lawyers. Pathology which contributes to an imbalanced mental state from whatever source, and hence, inability to make judgments, is another issue, entirely. Here, the petitioner has failed to prove the allegations in Paragraphs 7(H) and 7(M) of his third amended petition.
In paragraph 7(I) of his third amended petition, the petitioner claims Buckley was deficient for failing to consider filing a motion for a mistrial "when it was discovered that the state had withheld exculpatory evidence."
Pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1193, 10 L.Ed.2d 215 (1963), "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id., 87. "[E]vidence is favorable if it is either exculpatory or impeaching." Morant v. Commissioner of Correction, 117 Conn.App. 279, 285, 979 A.2d 507 (2009). "Evidence is not suppressed within the meaning of Brady, however, if it is disclosed at trial . . . In such a situation, the defendant must demonstrate that the timing of the disclosure prejudiced him to the extent that he was deprived of a fair trial." (Citation omitted.) State v. Harris, 32 Conn.App. 476, 479, 629 A.2d 1166, cert. denied, 227 Conn. 928, 632 A.2d 706 (1993).
Here, Assistant State's Attorney Massameno incorrectly responded to a request for criminal histories of all of the state's witnesses by providing Buckley with a note that stated that one of the state's witnesses, Linda Williams, had "no felony convictions . . . no arrests or misdemeanors." (Exhibit 1(c), p. 792.) It was later established, once Williams took the stand to testify, that she had at least three prior arrests: larceny in the third degree, breach of peace and disorderly conduct. (Exhibit 1(c), pp. 798-803.) Additionally, the prosecution failed to give Buckley, prior to trial, police reports which indicated that Williams had earlier made statements to police, which statements arguably were inconsistent with Williams' testimony on direct examination. (Exhibit 1(c), pp. 810-13, 816-18.) Assuming these missives constituted a Brady violation, the petitioner has, nonetheless, failed to demonstrate any prejudice resulting from Buckley's handling of them. A review of the transcripts of petitioner's criminal trial reveals that despite these late displosures Buckley was able to effectively cross examine Williams. Buckley had the police reports at the time of the cross examination and was able to question Williams on the substance of the claimed inconsistent statements. (Exhibit 1(c), pp. 840-41, 861-64, 883-84.) Moreover, he was able to bring in and examine the police officer and detective who had spoken to Williams and authored the reports. (Exhibit 1(e), pp. 1884-91, 1907-13.) Buckley was also able to introduce before the jury evidence of Williams' intoxication at the time of the shooting. (Exhibit 1(e), pp. 2056-73, 2075-76.)
Furthermore, this court does not find deficient performance by any absence of discussion with the petitioner about the filing of a motion for mistrial. "[I]t is well established that a habeas court cannot in hindsight second-guess an attorney's trial strategy." Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 804, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). "[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment." Id., 801. At the habeas trial, Buckley testified he did not move for a mistrial on any police report issue. It is clear Buckley told the petitioner that his case was winnable and that the petitioner understood the risks of proceeding to verdict. Again, the prosecution was unable to produce Moody in this trial. Clearly, Moody's testimony in accordance with her statement would likely enhance the prosecution's case. (Exhibit A.) If the prosecution had the opportunity to retry the case, Moody might appear and testify. In that instance, the prospects for the defense to succeed likely would worsen. The court views this issue through the lens of what was observable at the time of trial, not what is known now in hindsight. See Toccaline v. Commissioner of Correction, supra, 804. The court acknowledges that such a decision is a complicated one, indeed, but one which does not require a separate conference with a client who expressly approves of counsel's tactical decision to proceed ahead with evidence and eventually to a verdict. Accordingly, there is neither deficient performance nor prejudice shown with regard to this claim.
In paragraphs 7(J), (K), and (L) of his petition, the petitioner claims that trial counsel failed to undertake a meaningful analysis of the strengths and weaknesses of the prosecution's case, failed to market those aspects "understandable" to him, failed to revive plea negotiations, and failed to explain the full range of sentences to which the petitioner was exposed if convicted. None of these claims have merit for reasons already discussed in part. The petitioner possessed the requisite intelligence to actively participate in his defense. Buckley discussed all aspects of the prosecution and defense with the petitioner. Moreover, it is clear to the court that Buckley was not employed to plea bargain or further negotiate the case in terms of a plea disposition. Attorney Meo had referred the petitioner to Buckley when it became clear the case was going to trial. Borrowing a metaphor from baseball, Buckley testified that he was the guy coming out of the bullpen. Assistant State's Attorney Massameno had offered a sentence of forty years in exchange for a plea of guilty to murder. (Exhibit 4.) It appears a judge may have given a court indicated (plea) offer of between thirty and thirty-two years. (Exhibit 4.) The petitioner rejected the offer in 1993. Buckley came into the case in 1994. (Exhibit 4.) The petitioner maintained his innocence to Buckley and insisted on going to trial; Buckley obliged. There is no evidence upon which this court can adduce that even if Buckley had attempted to revive negotiations, such efforts would have borne fruit, i.e., the state would renew a previous offer or put a new offer on the table, the petitioner would have accepted any offer and declined to put the prosecution to its proof. Accordingly, the petitioner has failed to meet his burden of proof as to these claims.
Lastly, the petitioner complains that Buckley "failed to object to the court's improper instruction regarding the element of intent . . ." (Third Amended Petition, ¶ 7(N).) In addition, the petitioner alleges, in count two of his third amended petition, that Buckley was ineffective as appellate counsel for failing to raise the issue of the court's improper jury instruction on intent on appeal pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The respondent concedes that the trial court improperly provided the jury with the entire statutory definition of intent but argues that such error is not likely to have misled the jury.
"Our Supreme Court has pointed out frequently that when a jury instruction is challenged, the charge is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component . . . In determining whether it was . . . reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case." (Internal quotation marks omitted.) State v. Bivrell, 116 Conn.App. 556, 564, 976 A.2d 60 (2009), citing State v. Mussington, 87 Conn.App. 86, 90-91, 864 A.2d 75, cert. denied, 273 Conn. 914, 870 A.2d 1084 (2005).
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), 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").
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 . . ."
In looking at the totality of the jury instructions in the present case, it is unlikely the jury was misled because the charge, on the whole, correctly informed the jury that in order to find the petitioner guilty of murder, it must find that he possessed the specific intent to cause the victim's death. The trial court's initial instruction on the charge of murder was proper. The trial court instructed the jury as follows: "The defendant is 'charged in the first count in this case with the crime of murder in violation of our statutes. As the specific statute applied here, it says a person is guilty of murder when with intent to cause the death of another person he causes the death of such person. There are, therefore, two elements, each of which the state must prove beyond a reasonable doubt in order to sustain conviction here. First, that the defendant had the intent to cause the death of another person. Second, that acting with that intent he caused the death of that person." (Emphasis added.) (Exhibit 1(e), p. 2238.) Moreover, thereafter, the trial court in several more instances properly charged the jury on the element of specific intent required to find the petitioner guilty of murder. (Exhibit 1(e), pp. 2241-42.)
Despite these proper instructions, the trial court did improperly refer to the intent to "engage in conduct" language of § 53a-3(11) in elaborating on the word "intent." (Exhibit 1(e), p. 2239.) Additionally, as pointed out by the petitioner, the trial court referred to this language during its explanation to the jurors that they could, but were not required to, infer intent from the conduct of the petitioner. The court instructed the jury as follows: "One way in which the jury can determine what a person's intention was at any given time is first by determining what that person's conduct was including any statements the person may have made and what the circumstances were surrounding that conduct and then from that conduct and those circumstances inferring what the person's intention was . . . You may infer from the fact that the accused engaged in conduct, if you find that he did, that he intended to engage in that conduct. So, in respect to the murder charge, you may consider evidence of the type of weapon used, the manner of its use and the nature of the wound inflicted if you find the defendant fired the weapon beyond a reasonable doubt as well as any other conduct of the defendant that you find relevant to the question of intent. The reference, that is, inferring from the fact that an accused engaged in conduct [that] he intended to engage in that conduct is not a necessary one. You are not required to infer intent from the accused's conduct, but it is an inference which you may draw if you find it to be logical and reasonable. I remind you the burden of proving intent beyond a reasonable doubt is on the state." (Exhibit 1(e), pp. 2239-40.) Although these references could have confused the jury, the trial court immediately thereafter properly instructed the jury as follows: "So to summarize, in order for you to convict the defendant the state must have proven beyond a reasonable doubt the following elements: One, that the defendant had the intent to cause the death of another person and, two, acting with that intent he caused the death of that person . . . The only mental state that the state must prove with regard to the crime of murder is that the defendant specifically intended to cause the victim's death . . . The only mental state that the state must prove with regard to the crime of murder as I said before is that the defendant specifically intended to cause the victim's death." (Emphasis added.) (Exhibit 1(e), pp. 2241-42.)
Here, similar to the situation in State v. Brown, supra, 97 Conn.App. 837, in examining the jury instructions as a whole, one cannot conclude that the jury was misled into believing the state was relieved of its burden of proving beyond a reasonable doubt that the petitioner had the requisite intent to murder the victim. As noted supra, the jury was repeatedly told in order to find the petitioner guilty of murder it was required to find that the petitioner acted with the intent to cause the death of another person and that he in fact caused the death of that person. It thereby follows that the petitioner has failed to demonstrate that Buckley was ineffective for failing to object to the court's charge on intent or for failing to object to the court's charge on intent or for failing to raise the issue on appeal.
II. Ineffectiveness of Buckley as Appellate Counsel
The petitioner, in count two of his third amended petition, claims that Buckley, as his appellate counsel, failed to raise all possible issues on appeal and with respect to those issues which he did raise, that he failed to adequately brief them.
"While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). A petitioner claiming ineffective assistance of appellate counsel must show that, but for appellate counsel's error, the petitioner would have prevailed on appeal. See Small v. Commissioner of Correction, supra, 286 Conn. 721-24.
Here, there is insufficient proof to establish that had Buckley briefed or argued any particular claim that he did not raise or had he argued differently those claims which he did raise, the outcome would likely have been different on appeal. Moreover, because there is no deficient performance on the part of trial counsel for failing to object to the trial court's jury charge on specific intent, ergo, there can be no deficient performance on Buckley's part for failing to raise this issue on appeal. Accordingly, the petitioner has failed in his burden to show prejudice or deficient performance on the part of Buckley in his capacity as appellate counsel.
CONCLUSION
The petition for a writ of habeas corpus is denied. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.