Opinion
No. CV00-445609S
January 5, 2006
MEMORANDUM OF DECISION ON FOURTH AMENDED PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, by counsel, has filed a three-count fourth amended petition for a writ of habeas corpus. The first count sets forth six alleged actions or inactions by the trial court which are claimed to have deprived the petitioner of his right to a fair trial in violation of his state and federal constitutional rights. The second and third counts allege ineffective assistance of trial and appellate counsel, respectively.
The petitioner was the defendant in a criminal case in the judicial district of Fairfield wherein he was charged with murder, felony murder, capital felony, sexual assault first degree, and sexual assault second degree. After a jury trial he was found guilty of murder and sexual assault second degree. He was acquitted of felony murder, capital felony, and sexual assault in the first degree. He was sentenced to a total effective sentence of fifty-five years imprisonment by the trial court (Ford, J.), which sentence he is presently serving. He was represented at trial by Attorneys Michael Fitzpatrick and James Ruane, and on appeal by Attorney Lisa Steele. All of the convictions were affirmed by the Appellate Court, State v. Solek, 66 Conn.App. 72 (2001). His petition for certification to appeal was denied by the Connecticut Supreme Court, State v. Solek, 258 Conn. 941 (2001).
This court heard this case on December 6 and 7, 2005. The petitioner, and Attorneys Fitzpatrick, Ruane and Steele testified at the trial. The parties each made oral argument at the conclusion of the evidence and waived the filing of briefs.
The petitioner is entitled to receive effective assistance of counsel at both trial and on appeal.
The petitioner's right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. "The right of a defendant to effective assistance is not however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 9 Conn.App. 674, 678, 564 A.2d 303 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263, 573 A.2d 330 (1990). "In order to prevail in a habeas corpus challenge, `the petitioner "must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962)." D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984).' Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989)." Sherbo v. Manson, 21 Conn.App. 172, 180-81, 572 A.2d 378 (1990).
In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal." Magnotti v. Meachum, 22 Conn.App. 669, 674, 579 A.2d 553 (1990); see Riggs v. Warden, 26 Conn.App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).
"`A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted. from a breakdown in the adversary process that renders the result unreliable.' Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989)." Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct 512, 108 L.Ed.2d 514 (1989).
"With regard to the performance component of this inquiry, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Aillon v. Meachum, supra, 211 Conn. 357. "The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will he recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980)." `What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation. " Peoples v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981).' Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985)." Giannotti v. Warden, 26 Conn.App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); see also Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; see also Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Williams v. Warden, 217 Conn. 419, 586 A.2d 582 (1991).
Robert Jeffery v. Commissioner of Correction, 36 Conn.App. 216, 218-20.
There is nothing fundamentally unfair about applying the same standard of prejudice to the performance of his appellate counsel that we would be required to apply to the performance of his trial counsel . . . Bunkley v. Commissioner of Correction, 222 Conn. 444, 461, 610 A.2d 598 (1992).
[T]o prevail on this claim, [the petitioner] must establish (1) that his appellate counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law, and (2) that this lack of competency contributed so significantly to the affirmance of his conviction as to have deprived him of a fair appeal, thus causing an unreliable conviction to stand. See Valeriano v. Bronson, 209 Conn. 75, 84-86, 546 A.2d 1380 (1988); accord Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If 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).
Mozell v. Commissioner of Correction, 51 Conn.App. 818, 820-21.
The Appellate Court found that the jury in the criminal case reasonably could have found the following facts:
"Late in the night of May 12, 1995, the defendant and Scott Smith, after an evening of drinking together, decided to go to the victim's apartment. The victim, a twenty-nine year old mentally disabled woman, was an acquaintance of theirs. At first, she was not interested in letting them in; however, after some persistence, they went inside. Once inside, the defendant drank beer despite the victim's protests. He continued to antagonize her and made fun of her. The two then began to argue and she ordered him out. The defendant then said, `f____ you bitch,' and threatened that he `would tie her up and throw her in the closet and burn her.' A pushing match ensued. Smith then got behind the victim and started choking her. Meanwhile, Smith yelled to the defendant to get a knife, but finding none, the defendant grabbed a metal can opener and stabbed her in her head with it. Because she still was fighting and screaming, the defendant grabbed a clothes iron with his shirt and hit her in the head with it. He then kicked her several times while she spit up blood.
The defendant then shut off the television with his shirt so as not to leave a fingerprint. He also locked the door. The defendant watched Smith remove the victim's pants and sanitary napkin, and perform cunnilingus on her, which, according to the defendant's written statement to the police, sexually aroused the defendant. He ordered Smith out of his way, and forcibly had vaginal and anal sex with the victim while Smith masturbated.
Finally, after some twenty minutes and after hearing an ambulance siren in the distance, Smith wanted to leave. The two threw some empty beer cans on the front lawn and left for the defendant's apartment. After Smith borrowed a clean pair of pants from the defendant and left, the defendant called the police "because I knew that I helped kill her, but I didn't kill her, I tried to stab her but it was self-defense." The defendant gave police a graphic and detailed written statement of the events.
"Medical evidence offered at trial established that the cause of death was strangulation. It further indicated that the victim suffered several injuries to her face, including oval shaped lacerations and bruises in a triangular pattern consistent with a clothes iron, and bruising and lacerations in and around her vaginal area consistent with blunt force trauma. Those injuries occurred either before or at about the same time as her death." State v. Solek, supra, 66 Conn.App. 73.
Mr. Fitzpatrick has been in practice since 1987. Since his admission he has been engaged in criminal defense work which at the time of the criminal trial amounted to 90 percent of his work. He has handled the defense of fifteen to twenty murder cases. He was appointed as a special public defender for the petitioner approximately six weeks after the arrest. Mr. Ruane has been in practice since 1977. From 1977 to 1984 he was a public defender handling major felony cases. Since 1984 he has been in general practice with an emphasis on criminal defense work. He has tried approximately twenty murder cases and four capital felony cases. The Office of the Public Defender appointed both Mr. Fitzpatrick and Mr. Ruane as special public defenders in this case because of its policy that co-counsel be appointed in cases where the state is seeking the death penalty, as was the situation in this case.
Ms. Steele has been in practice since 1994. She was a law clerk for Judge Dupont, Chief Judge of the Appellate Court, following her admission to the bar. She has done a considerable amount of appellate criminal defense work. She is a member of the Connecticut and Massachusetts bars, a member of the National Association of Criminal Defense Attorneys, has published a dozen articles dealing with criminal defense, and has taught classes on criminal defense. She represented the petitioner as a special public defender on his direct appeal to the Appellate Court and on his petition for certification to the Connecticut Supreme Court.
The first count refers to six instances of conduct by the trial judge which the petitioner claims were in violation of his state and federal constitutional rights. All of these claims relate to matters that occurred on the record during the trial and should have been raised on appeal. If the petitioner believes that these claims had merit and were not presented on appeal by appellate counsel then they should be part of the third count which alleges ineffective assistance of appellate counsel. The court notes that the claim relating to the court's charge on intoxication is referred to in the third count. None of the claims alleged in the first count were pursued in oral argument and they are deemed to have been abandoned.
The second count of the petition alleges several claims of ineffectiveness of trial counsel. Some of these claims were withdrawn at trial and others not pursued at oral argument. The three claims that have been pursued concern trial counsels' handling of the decision of the trial court not to charge on the lesser included offenses of manslaughter first and second degree, the decision of the court not allowing the admission of the testimony of a Dr. Kaplan, and the decision of the court, after the petitioner had made his closing argument, that it would include a charge on intoxication in its instructions to the jury.
Trial counsel submitted a request that the trial court charge the jury on manslaughter first degree, General Statutes § 53a-55(a)(1), and manslaughter second degree, § 53a-56(a)(1), as lesser offenses included within the greater offense of murder. Judge Ford did not charge on the requested lesser offenses. The petitioner claims in oral argument that trial counsel were ineffective because the request to charge submitted to Judge Ford did not comply with Practice Book § 42-18, and in that they failed to make a proper argument about the evidence concerning the request to charge. The petitioner claims that if the request to charge had been proper and a more complete argument on the facts had been made, that this "would have given Judge Ford pause to think about whether he should charge manslaughter or not." The record show that Judge Ford refused to charge on the lesser offenses because he felt the evidence was insufficient, not because he was concerned with whether the request was in proper form. The claim that a more complete argument concerning the facts would have caused Judge Ford to charge as requested is unwarranted speculation. The court notes that the Appellate Court, in affirming the convictions, analyzed the four-prong test as set forth in State v. Whistnant, 179 Conn. 576, 588 (1980) in determining whether the petitioner was entitled to a jury instruction on the lesser included offenses which were requested. The Appellate Court found that the request to charge was not a proper request under the first prong of Whistnant because it did not comply with Practice Book § 42-18. Therefore, trial counsel were deficient in connection with their obligation to submit a proper request. However, the petitioner was not prejudiced by this deficiency because the Appellate Court also held that the evidence in the case was insufficient to justify a finding of guilt on a lesser offense, and therefore it did not satisfy the third and fourth prongs of Whistnant. In ruling upon the claim on appeal that the trial court erred in not charging on the two lesser included offenses the court held "[E]ven if the defendant had satisfied the first prong, we conclude that his claim nevertheless would fail under the third and fourth prongs of Whistnant." State v. Solek, supra, 66 Conn.App. 83.
The next claim pursued in argument by the petitioner is that trial counsel were ineffective in failing to have the testimony of Dr. Kaplan admitted at trial. The petition claims that Dr. Kaplan, a psychologist, would have testified concerning why the petitioner would give a confession in which he would admit to certain acts which the evidence showed that he did not, in fact, commit. After an offer of proof the trial court refused to admit the testimony. The purpose of the testimony of Dr. Kaplan was to assist in proving that the petitioner did not commit sexual assault in the first degree, even though his statement to the police indicated that he did. The verdict of the jury on the sexual assault first degree charge was of significance in connection with the capital felony charge, § 53a-54b(6), which required, in order for a conviction of capital felony, that the jury find that the petitioner committed a murder in the course of committing sexual assault in the first degree. The court has reviewed the record and finds that the petitioner has failed to prove that trial counsel were deficient in their efforts to have the testimony of Dr. Kaplan admitted, and even if they were deficient, since the jury found the petitioner not guilty of both sexual assault first degree and capital felony, the petitioner suffered no prejudice. In addition, the court finds that if the testimony of Dr. Kaplan had been admitted, it would not have been persuasive on any of the issues relating to either of the convictions of murder or sexual assault second degree.
The final claim of ineffectiveness of trial counsel pursued in argument concerns the conduct of trial counsel when the trial court announced that it intended to charge on the effect of intoxication on the mental status of the petitioner required for the commission of the offenses alleged. At the close of evidence, trial counsel had requested such an instruction, the state objected, and Judge Ford stated that he would not give that instruction. After the state had made its opening argument and trial counsel had finished closing argument, the trial court announced, sua sponte, that it would give such an instruction. The record reflects that Judge Ford then inquired of Mr. Ruane whether he wished to address that issue and Mr. Ruane said that he did not. The petitioner claims that trial counsel were ineffective either in not requesting a mistrial because they had not been able to argue intoxication to the jury in their closing argument, or in not asking to re-open their closing argument so as to argue intoxication. Mr. Ruane testified that he did not consider intoxication an important issue, and that both trial counsel believed that the jury was "going their way" as an explanation for not moving to re-open argument or for a mistrial. The court notes that Mr. Fitzpatrick testified that his and Mr. Ruane's primary job was to save their client's life, and the jury did acquit the petitioner on the charge of capital felony. A review of the entire record discloses that intoxication was a very minor issue in the case. The petitioner has failed to prove that had a motion for a mistrial been made that it probably would have been granted by Judge Ford. The court believes that if trial counsel had requested that their closing argument be re-opened to argue the issue of intoxication, Judge Ford probably would have granted that request. However, the petitioner has failed to prove that such an argument, if made, would have had any effect on the verdicts returned by the jury. Trial counsel made the tactical decision not to move for a mistrial or to re-open closing argument, and the petitioner has failed to rebut the strong presumption that the decision was sound trial strategy. The court finds that the petitioner has failed to prove that trial counsel was deficient with respect to this claim or that he has suffered any prejudice as a result of trial counsels' conduct.
The petitioner's claim of ineffective assistance of appellate counsel, as alleged in the petition, is based on claims that the brief filed in the Appellate Court did not adequately set forth the trial evidence on the issue of the trial court's failure to charge on the lesser included offenses, and that the brief did not raise the issues concerning the charge on intoxication and the exclusion of Dr. Kaplan's testimony. The petitioner also claims that appellate counsel was ineffective in that the petition for certification to the Connecticut Supreme Court did not adequately set forth the factual and legal errors in the decision by the Appellate Court.
The only issue argued by counsel in support of the claim of ineffectiveness of appellate counsel was that the appellate brief did not raise on direct appeal a claim that the reversal by the trial court of its decision not to charge on intoxication constituted a denial of the petitioner's right to make final argument with respect to intoxication. Ms. Steele testified that she reviewed the record with respect to the circumstances concerning the charge on intoxication, she felt it was not a strong issue, and she preferred to rely on the three issues which were raised on direct appeal. As indicated above, the issue of intoxication was of little significance and the petitioner was not prejudiced because his trial counsel did not argue intoxication to the jury. It is also clear that the petitioner was not denied the right to argue that matter to the jury. Appellate counsel made the tactical strategic decision not to pursue-that issue on appeal, and the petitioner has failed to rebut the presumption that the decision was sound appellate strategy. The other claims of ineffectiveness of appellate counsel made in the petition have not been argued and are deemed to have been abandoned.
Accordingly, for the reasons set forth above, the petitioner's fourth amended petition for a writ of habeas corpus is dismissed.