Opinion
No. TSR CV03-4261S
August 15, 2011
MEMORANDUM OF DECISION
Measured by the date that the underlying crime took place, the current matter is the oldest case on death row in the state of Connecticut. The petitioner, Robert Breton, has filed a petition for a writ of habeas corpus attacking his conviction for capital felony and his sentence of death. The court conducted twelve days of trial on the habeas petition. For the following reasons, the petition is denied.
HISTORY AND BACKGROUND OF THE CASE I
The history of this case is long and winding. In the early morning hours of December 13, 1987, the petitioner's former wife, JoAnn Breton, and his son, Robert J. Breton, Jr., were brutally murdered. The petitioner was arrested the next day and subsequently charged with one count of capital felony and two counts of murder. The state alleged as an aggravating factor that the petitioner committed the offense "in an especially cruel manner." On the petitioner's motion, the trial court, Heiman, J., dismissed the factor, holding that it was facially vague and overbroad. The guilt phase of the trial nonetheless proceeded and, on April 11, 1989, a jury convicted the petitioner of all counts.
Meanwhile, the state took an expedited appeal of the dismissal of the aggravating factor. On July 25, 1989, the Supreme Court rendered its opinion defining the factor to mean "the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing," and holding that this definition cured any constitutional infirmity. State v. Breton, 212 Conn. 258, 562 A.2d 1060 (1989) ( Breton I). The court remanded the case with direction to proceed with the capital sentencing hearing. Id., 259, 272.
A separate sentencing hearing then took place at which the same jury considered further evidence. At the conclusion of the sentencing phase of the trial, the jury found an aggravating factor and no mitigating factor. In accordance with the jury's findings, the trial court rendered a judgment of guilty of capital felony and, on October 27, 1989, imposed the death penalty on the petitioner.
The petitioner appealed. The Supreme Court affirmed the conviction but concluded that there were ambiguities in the sentencing verdict form and in the trial court's jury instructions in the sentencing phase of the trial. Accordingly, on August 22, 1995, the Court reversed the judgment imposing the death penalty and remanded the case for a new penalty phase hearing. State v. Breton, 235 Conn. 206, 260, 663 A.2d 1026 (1995) ( Breton II).
On remand, the petitioner elected to hold the new penalty phase hearing before a three-judge panel. At the hearing, the state again claimed as an aggravating factor that the petitioner had committed the offense in an especially cruel manner. The petitioner claimed two statutory and twenty-five nonstatutory mitigating factors. The panel, Fasano, Damiani, and Vertefeuille, J.s, found that the state had proven beyond a reasonable doubt that the defendant had committed both murders in an especially cruel manner. The panel also found that the petitioner had proven by a preponderance of the evidence the factual underpinnings of certain claimed nonstatutory mitigating factors, but that none of the proven facts alone or in combination constituted mitigation considering all of the facts and circumstances of the case. In accordance with those findings, the panel, on January 9, 1998, rendered judgment sentencing the defendant to death.
The petitioner again appealed to the Supreme Court. In 1999, during the pendency of the appeal, the petitioner filed a petition for a new trial. On January 8, 2002, after a short oral argument, the Supreme Court continued the appeal for resolution of the new trial petition. The petitioner withdrew the petition for a new trial without prejudice on May 9, 2002. After a resumption of oral argument, the Supreme Court, on June 24, 2003, issued its opinion affirming the sentence in all respects. The United States Supreme Court denied certiorari on December 1, 2003. State v. Breton, 264 Conn. 327, 824 A.2d 778, cert. denied, 540 U.S. 1055 (2003) ( Breton III).
The Connecticut Supreme Court nonetheless recognized that the petitioner may pursue his claim of unconstitutional racial disparities in the administration of the state's death penalty in a separate habeas proceeding that would be consolidated with similar claims by other Connecticut death row prisoners. Id., 394-407. The petitioner is currently pursuing that claim in In Re Claims of Racial Disparity in Death Penalty Cases, Superior Court, Judicial District of Tolland, Docket No. CV05-4000632. The court agrees with the petitioner's position that trial of the present habeas case does not in any way waive his racial disparity claim.
On December 2, 2003, the petitioner filed a pro se petition for a writ of habeas corpus. The court appointed counsel in October 2004, and set a trial date for October 2005. Various discovery issues arose and an amended petition was not filed until February 2006. The court, Fuger, J., issued a memorandum of decision on some of the discovery issues on April 28, 2006. See Breton v. Commissioner of Correction, 49 Conn.Sup. 592, 899 A.2d 747 (2006). The petitioner applied to the Chief Justice for certification to appeal this decision. Justice Fleming L. Norcott, Jr., denied the petition on June 6, 2006. The petitioner next petitioned the trial court for certification to appeal and, after the Appellate Court ordered the trial court to act on the petition, the trial court denied it. On September 5, 2006, the petitioner appealed to the Appellate Court from the denial of the petition for certification. The Appellate Court granted the respondent's motion to dismiss the appeal on October 18, 2006. In the meantime, the respondent moved to dismiss some of the claims in the petition. Despite extensive briefing, the petitioner ultimately amended the petition and the respondent withdrew the motion.
Unfortunately, there is no substantive activity in the file between February 14, 2007 and November 10, 2010, when the court imposed a schedule ordering trial to begin on July 5, 2011. The petitioner filed the operative fourth amended petition (petition) on April 26, 2011. The respondent has filed a revised motion to dismiss. The court will address the asserted grounds for dismissal in the body of this decision. Trial of the habeas petition began on schedule on July 5, 2011 and concluded on August 1, 2011.
Apparently, both parties and the court assumed that the present case would not go forward until the racial disparity case concluded. The Supreme Court stated in 2003 that it contemplated that the habeas case "will be litigated at some time in the reasonably near future." State v. Reynolds, 264 Conn. 1, 234, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908 (2004.) Unfortunately, eight years later, the consolidated habeas case has not yet gone to trial.
The 104 page petition contains eight claims. The first and principal claim contains sixteen counts alleging ineffective assistance of trial, appellate, and new trial counsel. At the conclusion of the petitioner's case, the petitioner withdrew claim One, counts VIII and IX, regarding certain aspects of the proof and rebuttal of the aggravating factor. The court also granted the respondent's motion to dismiss claim One, count XV, regarding a breach of jury impartiality, and claim Three, alleging that the petitioner was incompetent to stand trial.
The petitioner was represented at the guilt phase and the first penalty phase by public defenders Richard Kelly and Alan McWhirter (first trial counsel). Public Defenders McWhirter and Barry Butler represented the petitioner at the second penalty phase (second trial counsel). Representing the petitioner in the Breton III appeal was public defender Mark Rademacher (appellate counsel). Attorneys Norman Pattis and James Nugent represented the petitioner in his petition for a new trial (new trial counsel).
II
The Supreme Court, on direct review, stated that the jury hearing the guilt phase of the trial could have found the following facts. "The defendant and JoAnn Breton were married in 1967, and had one child, Robert Breton, Jr. [Robert, Jr.]. In January 1987, JoAnn Breton was divorced from the defendant. Shortly after the divorce, JoAnn and Robert, Jr., then fifteen years old, moved to a two-story apartment located in Waterbury.
"On Saturday, December 12, 1987, at approximately 10 p.m., the defendant went to the Sears Castaway Lounge in Waterbury, where he had several drinks. At the lounge, the defendant introduced himself to Mary-Jane Modeen, and the two talked and danced for several hours until the bar closed. At around 2 a.m. on Sunday, December 13, the defendant and Modeen left the bar together and drove in the defendant's truck to his apartment. They remained in the defendant's apartment for only a few minutes, however, because the defendant told Modeen that he had to go some place else. The defendant thereupon drove Modeen home.
"After dropping Modeen off at her home at around 2:45 a.m., the defendant drove to the apartment complex in which his former wife and son resided. The defendant entered their apartment and proceeded to the upstairs bedroom where JoAnn Breton was sleeping. The defendant, wielding a sharp, five inch knife, proceeded to beat and stab her viciously. Struggling to escape from the defendant's attack, JoAnn Breton managed to move across the room and away from the defendant. The defendant caught her, however, and continued his assault, inflicting multiple bruises, scrapes and knife wounds on her face, chest and neck. The defendant finally killed his former wife by thrusting the knife into and through her neck, transecting the carotid artery, a wound from which she bled to death.
"Robert, Jr., was asleep in his bedroom when he was awakened by his mother's cries for help. At some point prior to his mother's death, Robert, Jr., entered her bedroom, where he, too, was attacked by the defendant. Although bleeding from a gash on his right forearm and severe cuts on his hands and fingers, Robert, Jr., escaped from the bedroom to a nearby landing area between the first and second floors, and then proceeded down the stairway to the first floor. The defendant pursued Robert, Jr., down the stairs, overtaking him at the bottom of the staircase. The defendant then resumed his attack on Robert, Jr., repeatedly stabbing him in the face, chest, shoulder and neck. Robert, Jr., as did his mother, bled to death from a knife wound that severed his carotid artery.
"After the killings, the defendant left the apartment. Later that Sunday evening, he went to work at the Somers Thin Strip Company. On Monday morning, December 14, the defendant met a friend and coworker, Domenic Aurigemma and the two men drove to JoAnn Breton's apartment. The defendant went to the front door of the apartment while Aurigemma remained in the defendant's track. The defendant quickly returned to his truck and told Aurigemma that the door to the apartment was locked and that the doorknob appeared to be stained with blood. After Aurigemma had also inspected the doorknob, the police were called. The police, with the assistance of the building superintendent, entered the apartment. There the police found the body of Robert, Jr., clad only in his underwear and covered with blood, lying at the foot of the stairs leading to the second floor with his head propped up against the wall. They also found the body of JoAnn Breton, similarly clad and covered with blood, lying face up on the floor of the upstairs bedroom." (Internal quotation marks omitted.) State v. Breton, supra, 264 Conn. 338-40.
According to the Supreme Court, the following additional evidence was presented at the second penalty phase hearing. "Walter Borden, a psychiatrist, testified that he initially had been retained by the office of the chief public defender to perform a forensic psychiatric evaluation of the defendant in connection with the defendant's first penalty phase hearing. In connection with his evaluation, Borden interviewed the defendant and certain of the defendant's family members, including his sister, Catherine Bunker, and his aunt, Ruth Breton, and reviewed certain psychological reports and public records pertaining to the defendant. Borden testified at the second penalty phase hearing that, during the course of his review, he learned the following relevant facts.
"Public welfare records dating from the time of the defendant's early childhood indicated that the defendant's mother, then named Hazel Duffney, was unable to care for him and that her home was unfit for a child. At a very young age, perhaps when he was as young as one year, the defendant had been placed in an orphanage for a period of time. Family members reported that, when the defendant later was returned to his family, he was emaciated, mute and unkempt and would not allow anyone to touch him.
"At the time that the defendant was born, his mother was not married to the defendant's putative father, Roland Breton (father), but to another man. The defendant's parents were married approximately two years after his birth, and the issue of the defendant's paternity was an ongoing and open source of friction between them.
"During the defendant's childhood, his father was a heavy drinker who became abusive when he drank. He repeatedly threatened to kill the defendant. The defendant's mother also was an alcoholic. At one point, the defendant found her passed out in the gutter. She appeared to have been beaten. Another time, she killed and dismembered the family's pet cat and distributed the body parts around the house. When money was not available to purchase alcohol, she would prostitute herself to a package store owner in exchange for drinks. She would then openly taunt her husband about her sexual relations with other men. She also extorted money from her mother-in-law by threatening to harm the defendant and his sister if the money was not provided.
"To discipline the defendant, his mother would strip him from the waist down and beat him with a belt on his buttocks and genitals. When the defendant entered his teenage years, his mother habitually lay around the house unclothed and drinking. When he was thirteen, his mother made a sexual advance on the defendant by attempting to grab his penis. At that point, the defendant ran away from home. He later was found by the police and brought back.
"When the defendant was sixteen he joined the Navy. He was unable, however, to conform to the structure of naval life or to follow orders, and he was discharged after only two months. He then returned to his mother's home.
"When the defendant was seventeen, he broke into a neighbor's apartment intending to steal money, but he did not take anything. During the break-in, the defendant spilled some powder on his shoes. Police investigating the break-in located the defendant by following the trail of the powder to the apartment where the defendant and his mother lived. Shortly thereafter, the defendant left his mother's home and went to live with his grandmother and his father.
"After the defendant moved in with his father, the issue of the defendant's paternity continued to be a source of antagonism between them. When the defendant was eighteen or nineteen, he and his father had a heated argument over the issue, during which his father said that he was going to obtain the defendant's birth certificate to prove that he was the defendant's biological father. The birth certificate, however, did not resolve the issue.
"After that point, the relationship between the defendant and his father became even more strained. The defendant's father continued to be a heavy drinker who was abusive, threatening and belligerent toward the defendant, his own mother and others. He habitually carried a knife with him when he left the house.
"On December 3, 1966, [footnote 14 omitted] the defendant's father left the house to go drinking. It was later reported that, while out drinking, the defendant's father stated that the time had come to kill the defendant. The defendant was at home with his grandmother, who had just prepared a meal for them to eat, when the defendant's father came in, threatened the defendant, pushed the kitchen table against him and threw him up against the wall. The defendant retreated into the bathroom to escape from his father and told his grandmother to call the police. The defendant's father then attacked his grandmother.
"The defendant's memory about what happened next was not clear. Borden testified that the defendant told him that he remembered picking up a knife and seeing his father fall, apparently hurt. The defendant did not remember stabbing him, however. The defendant then ran out of the house, found a police officer to whom he indicated that his father had been hurt and brought the officer back to the house. The defendant's father died of multiple stab wounds to the chest and face. Ultimately, the defendant confessed to the killing. He pleaded guilty to manslaughter and received a suspended sentence. Borden testified that the defendant told him that he did not clearly recall stabbing his father, but admitted that he must have done so. [footnote 15: `Borden's testimony was not clear as to whether the defendant had told him that, at the time he confessed to the killing, he had been unable clearly to recall it or, at the time of the interview with Borden, his memory was unclear.']
The transcripts of the investigation into the killing make it clear that the stabbing occurred late in the evening of December 2, 1966, but leave it unclear whether the father died on that day or in the early hours of December 3, 1966. (Exhibit 31, pp. 37-39.) For the purposes of consistency with the Supreme Court opinion, the court will presume that the father died shortly after midnight on December 3.
"Shortly after the defendant killed his father, he met his wife, JoAnn Breton. He married her in December 1967, [footnote 16 omitted] within a few days of the first anniversary of his father's death. The defendant was very dependent on his wife for stability and psychological support, but their marriage was stormy. Borden testified that the defendant was pathologically jealous of other men, paranoid and delusional, and that these conditions derived from a belief that he could not be loved and from a profound distrust of other people. Borden provided the following anecdote, reported to him by the defendant, as an example of the defendant's paranoia. At one point early in the marriage, the defendant's wife left the house after a fight. The defendant went out to look for her and, when he found her on the street, thought that she appeared disheveled. The defendant immediately concluded that she had been raped. They then went to a coffee shop together, where they encountered three men. The defendant concluded that those were the men who had raped his wife. For years after the incident, the defendant continued to believe that his wife had been raped and had fantasies about killing the men who he believed had done it. The defendant reported to Borden that his wife ultimately admitted to him that she had been raped. Borden suspected, however, that the defendant had coerced her into making a false admission.
"Shortly after his marriage, the defendant had begun work at Somers Thin Strip Company. He worked there until 1985, when the company reorganized and he lost his job. The defendant stated to Borden that it was important to him to be a good husband, a good provider and a good parent, unlike his own father. When the defendant was laid off, he became depressed and started drinking heavily and taking pills. The relationship between him and his wife worsened.
"On Mother's Day, 1986, the defendant and his wife had a fight over whether to visit his wife's mother or the grave of the defendant's mother. The defendant became very angry and challenged his wife to leave him. She did. Divorce proceedings were initiated in July 1986, and were finalized in January 1987.
"During this period the defendant continued to become more depressed and to drink heavily. He also took the prescription drugs Desoxyn and Fiorinal. Desoxyn is an amphetamine with a potent stimulant effect. Borden testified that it was the worst medication that could have been prescribed for the defendant because it would have exacerbated his depression and paranoia and could trigger violent behavior. He also testified that using the drug in combination with alcohol would be `like throwing gasoline' on a simmering fire.
"Borden testified that the defendant reported to him that he was extremely depressed during the month of December 1987. His birthday, the anniversary of his father's death and his wedding anniversary all occurred in that month. It would have been his twentieth wedding anniversary that year.
"The defendant had numerous contacts with his former wife beginning on or about December 9, 1987. He brought roses to her place of work, purchased a favorite wine for her, handled a motor vehicle registration problem, brought suitcases to her house for a trip to Florida that she had planned for herself and their son later in the month, hand-delivered a late child support payment and brought her a ring that she had requested. Borden testified that it was his belief that the defendant took these actions in hopes of reconciling with his former wife.
"On December 12, 1987, the defendant went to his former wife's house in connection with one of these tasks. While there, he took her keys. That evening, the defendant went to a bar. He met a woman there, as we previously have noted, and took her back to his house, where he attempted unsuccessfully to have sexual intercourse with her. At some point, he took the woman home and then returned to his own house. He then noticed the keys that he had taken from his former wife's house and decided to return them to her and to try to talk to her. By then, it was very early in the morning of December 13.
"Borden testified that his understanding of the events that happened next was based on an interview with the defendant on February 20, 1988. The defendant told him that, as he parked the car in the parking lot outside his former wife's house, he thought that he saw someone walking around inside. He then `strapped on' a knife, went to the door and let himself in with the keys. The defendant reported to Borden that, at that time, he felt nervous, scared and unsure of himself. He laid the keys on an ironing board and then returned to the door, intending to leave. Instead, he went down into the basement. He did not know why. At some point, he went back up to the first floor and stood for a while. He then decided to go upstairs to his former wife's bedroom. The defendant reported to Borden that he still did not understand what he was doing. The defendant entered his former wife's bedroom, knelt on the bed and grabbed her. She screamed. The defendant reported to Borden that he just wanted to talk to her at that point, but was unable to speak. His former wife then yelled, `Bobby, call the cops, somebody is hurting me.'
"Borden testified that, at this point in the narrative given by the defendant during the interview on February 20, 1988, the defendant's demeanor changed dramatically. He began crying, sweating and trembling. In this agitated state, the defendant reported to Borden that he had been trying to keep his former wife from yelling, not trying to hurt her. He recalled pushing her face down, wrestling on the bed with her and falling onto the floor. He found himself sitting on top of her and hitting her to keep her from yelling. She continued to scream to `Bobby' that someone was trying to rape her.
"At some point a light went on in the hall next to the bedroom. When the defendant looked up he saw someone standing in the doorway. The defendant did not know who it was. At that point, the defendant took the knife in his hand. Borden testified that the defendant's description of his feelings at that time were `very similar [to those that he had described having at the time of] the death of his father where he described himself recalling, seeing the hand, his hand and the knife, not knowing what happened . . . [I]t's like he didn't feel like he took the knife, he felt like his hand did it. It was a dissociative, it was not part of him.'
"The defendant reported to Borden that he did not recognize the person in the doorway. He said to his former wife that it was not `Bobby,' but she said that it was. The person in the doorway then said something to the defendant. The defendant reported to Borden that he believed that the words were, `Dad, I love you.' At that point, the defendant saw his own arm go out and hit the person in the doorway. He could not clearly see the person he was striking because the light was behind that person.
"Borden testified that, during this part of the defendant's narrative to him, the defendant was extremely emotional, trembling and crying and appeared to be racked and tormented by his recollection. Borden testified that it was his impression that the defendant was `back in that room' as he reported the events. The defendant reported that he hit the person in the doorway and saw something gushing out of his neck or head and heard something gasping and gurgling. At that point, the defendant recognized his son.
"The defendant then heard his former wife calling him and he returned to the bedroom. She asked the defendant, `[W]hy, Bob?' The defendant then grabbed her hair and felt his hand hit her. He heard gurgling and then a crash. He left the bedroom and, as he started down the stairs, saw his son lying at the bottom of the stairs on the floor, shaking. At that point, he went back into the bedroom and knelt next to his former wife, who was lying on the floor and asked, `[W]hy, why.' He told her that he just wanted to talk, but then he hit her with his hand again.
"Borden testified that, at this point in the interview, the defendant said, in reference to what happened next, `God, no, no, no, I didn't do that.' The defendant reported that he left the bedroom and went back downstairs. His son was lying dead at the bottom of the stairs with his eyes open and looking at the defendant. The defendant said to his son, `[T]hank you for the birthday card,' and then stabbed him in the neck.
"Borden testified that, while the defendant was reporting this portion of the narrative, he was saying, `[W]hy do I remember so much? Why do I have to remember?' and `[W]hy, why, why.' He also continued to cry and to be in an extreme emotional state. After describing his last act, however, his demeanor changed instantaneously, as if he had awoken from a nightmare. Borden testified that he could never persuade the defendant to talk about the events surrounding the murders again. He testified that the defendant's demeanor during the interview indicated agony and remorse.
"During subsequent interviews, the defendant continued to report to Borden that he felt that his hand was not part of him and that it was his hand that had done these things, not him. He indicated that he wished that he could have cut it off. He also indicated that, for years, he had believed that his grandmother might have killed his father. Borden testified that the defendant's experience of his hand as not being a part of himself was an example of the depersonalization that borderline personalities are prone to experience. Borden also testified that depersonalization is a defense mechanism developed by children who have been subjected to chronic severe abuse. As adults, such persons are prone to go into a dissociative state under severe stress.
"Borden testified that, in his opinion, at the time of the offense, the defendant's ability to conform his conduct to the requirements of the law was significantly impaired; his mental functioning was significantly impaired; he suffered from a mental disease or defect, namely borderline personality disorder; and he was severely mentally ill. He also testified that the defendant suffered from an extreme emotional disturbance at the time of the offense. Finally, he testified that the abuse suffered by the defendant during his childhood was some of the worst that he had ever seen and that, if the abuse were to occur in a family today, it would cause the child to be removed from the home immediately on an emergency basis." Id., 340-49.
CLAIM ONE — INEFFECTIVE ASSISTANCE OF COUNSEL INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS
"To determine whether the petitioner has demonstrated that [trial] counsel's performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Claims of ineffective assistance during a criminal proceeding must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance . . ." (Citations omitted; internal quotation marks omitted.) Jarrett v. Commissioner of Correction, 108 Conn.App. 59, 70, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008). "It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).
"The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment." (Internal quotation marks omitted.) Jarrett v. Commissioner of Correction, supra, 108 Conn.App. 70. In this regard, "[j]udicial 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." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186, cert. denied, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009) (quoting Strickland v. Washington, supra, 466 U.S. 688-90.).
For claims of ineffective assistance of appellate counsel, the performance prong remains the same. See Moore v. Commissioner of Correction, 119 Conn.App. 530, 534-35, 988 A.2d 881, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010). With regard to the prejudice prong, our Supreme Court has distinguished the standards of review for claims of ineffective trial counsel and ineffective appellate counsel. See Small v. Commissioner of Correction, 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied, 129 S.Ct. 481 (2008). For claims of ineffective appellate counsel, the second prong considers "whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial." Id., 722. This test requires the reviewing court to "[analyze] the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm." Id.
CLAIM ONE, COUNT I — FAILURE TO PRODUCE EVIDENCE OF PTSD (paragraphs (para.) 40-64 of the petition)
The initial claim raised by the petitioner is that first and second trial counsel rendered ineffective assistance by failing to discover two 1966 transcripts that would have led to a diagnosis that, at the time of the offense, the petitioner suffered from post traumatic stress disorder (PTSD) with dissociative features. These transcripts, labeled the Laden Transcript and the Inquest Transcript and admitted as exhibits 31 and 32, contained interviews of the petitioner concerning the December 3, 1966 killing of his father. The Laden Transcript recorded an interview conducted by county detective Thomas Laden on December 3, 1966, beginning at 1:05 a.m., which was immediately after the crime. The Inquest Transcript contained an interview of the petitioner by a New Haven County coroner on December 12, 1966.
CT Page 18584
I
As the court will discuss below in connection with a related claim, trial counsel first obtained these transcripts during the cross-examination of Borden at the second penalty phase. The evidence in the habeas trial nonetheless established that the transcripts were accessible in a folder concerning the 1966 crime located in the state's attorney's office and available, prior to the guilt phase, for inspection by first trial counsel along with boxes of other materials set aside as related to the 1987 case. As the state represented to the panel hearing the second penalty phase: "that file has been available to the defense since the beginning of this case." (Exhibit 3B, 4/22/97 Tr., p. 89.)Ordinarily there is little exculpatory value in the facts of a client's prior homicide. First trial counsel somewhat appropriately viewed the petitioner's previous manslaughter conviction as a "wild card" because the prosecution might well benefit, directly or indirectly, from the fact that the petitioner had previously killed another person. In this case, however, the circumstances tilted decidedly toward full investigation into the 1966 incident. Here, trial counsel represented a client facing the death penalty with an opportunity to present mitigating factors based on mental health evidence. Significantly in that regard, the 1966 homicide bore remarkable similarities to the 1987 charges because both involved the especially irrational act of killing of immediate family members. Further, first trial counsel knew that the 1966 killing occurred when the petitioner, who was only nineteen at the time, was in the grips of an unusually troubled childhood. They knew that the petitioner had received only a suspended sentence and probation for the 1966 manslaughter, which clearly suggested that there were bona fide defenses available at the time. Finally, even if counsel were not familiar with the procedures of a coroner's inquest, which the General Assembly eliminated in 1979, the fact that the evidence was in the form of contemporaneous transcripts made it a particularly valuable investigatory source because the transcripts contained verbatim statements of the petitioner taken shortly after the crime. (Exhibit E2.) Under these unusual circumstances, reasonable defense counsel should have realized that the transcripts may have contained evidence of some childhood disturbance or emotional condition that bore a relation to the petitioner's current mental status. Accordingly, they should have retrieved or asked for copies of the two transcripts. The court concludes that first trial counsel were deficient in not doing so.
CT Page 18585
II A
The more complicated issue is the one of prejudice. The petitioner alleges that discovery and analysis of the 1966 transcripts would have revealed that the petitioner stabbed his father while experiencing "dissociative symptoms." These dissociative symptoms, in turn, purportedly suggested that the petitioner suffered from long-standing PTSD. The petitioner alleges that, at the guilt phase, a diagnosis of PTSD would have supported a defense that the petitioner did not form the intent to kill the victims and the affirmative defenses that the petitioner was legally insane and acting under an extreme emotional disturbance.Even if the court assumes that trial counsel had obtained the 1966 transcripts prior to the guilt phase, the petitioner has not proven his allegations that the availability of a PTSD-based defense creates a reasonable probability that the outcome of that phase would be different. As an historical matter, the petitioner presented no experts and no mental health defense at the guilt phase. Instead, his defense was essentially that the state did not prove its case beyond a reasonable doubt.
Trial counsel had valid reasons for taking this approach. First, the petitioner was a difficult and oppositional client who maintained, despite strong evidence to the contrary, that he did not commit the killings. Although first trial counsel thought their best defense was extreme emotional disturbance, because it would reduce murder to manslaughter and thereby eliminate a possible death sentence, for this defense to succeed the petitioner would have to acknowledge his actions in causing the victims' deaths. The petitioner would not make that acknowledgment. The petitioner also did not want to meet with Walter Borden, the expert psychiatrist that counsel had hired. (Exhibits D, F.) In fact, the petitioner's adamance prompted first trial counsel to write the petitioner a letter in which they noted they had advised the petitioner numerous times about the advisability of a defense based on extreme emotional disturbance, but "you have forbidden us to use such a defense." (Exhibit M3.)
Under General Statutes § 53a-54a(a), the governing statute at the time, "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime." See State v. Breton, supra, 264 Conn. 381 n. 29.
At one point, the petitioner went so far as to write Kelly that "my need, is not to settle for anything lesser than the electric chair and with-out appeal. Which in turn will cause my death." (Exhibit B.)
Indeed, the trial court, obviously concerned about the petitioner's rejection of his counsel's advice, took the unusual step of canvassing the petitioner about his apparent waiver of a defense of extreme emotional disturbance. The colloquy went as follows:
THE COURT: "Addressing myself directly to Mr. Breton, Mr. Breton you understand, sir, that under our statute, that even if a person were proven guilty of murder, under certain circumstances, evidence can be produced which would render the degree of culpability of an individual under circumstances where there was established extreme emotional disturbance to reduce the crime from murder to manslaughter. Has your lawyer explained that to you, sir?
MR. BRETON: "Yes.
THE COURT: "You understand that apparently from the drift of what I'm hearing, apparently there is a potential where certain evidence could be produced which, if accepted or believed by the jury, might, in the opinion of counsel, assuming that the evidence proving you guilty of the crime [sic], that would have the effect in their judgment of reducing the crime from murder to manslaughter under the extreme emotional disturbance statute; do you understand that?
MR. BRETON: "Yes.
THE COURT: "I understand, also, that you, with full knowledge and understanding of this, have instructed your lawyers that they are not to file any notices of claims of extreme emotional disturbance. And additionally, that you have instructed them not to produce any psychiatric evidence during the guilt aspect or phase of this trial; is that correct, sir?
MR. BRETON: "Yes.
THE COURT: "And you've given this sufficient thought, Mr. Breton, that you're comfortable with that judgment?
MR. BRETON: "Yes.
THE COURT: "I take it you understand your lawyers feel they should, in the interest of protecting you, be at liberty, if they desire to do so, and they feel it's appropriate to offer the evidence that they feel is available to them, correct?, Is that their judgment?
MR. BRETON: "Yes, I believe so." (Exhibit 1c, 2/14/89 Tr., pp. 95-96.)
The trial court then advised the petitioner that it could instruct the jury on extreme emotional disturbance even if the petitioner did not formally advance that defense. (Exhibit 1c, p. 97.) In fact, that scenario is precisely what took place at trial. (Exhibit 1f, 4/10/89 Tr., pp. 112-17.)
At the habeas trial, the petitioner presented the testimony of a legal expert, attorney Henderson Hill of North Carolina, to say that trial counsel should continuously work to try to change the client's mind and ultimately have him accept counsel's view of what is the best defense. The court, however, rejects the notion that counsel should persist in trying to override the client's wishes. As the Strickland Court stated: "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Strickland v. Washington, supra, 466 U.S. 691. Based on this reasoning, courts have declined to find defense counsel ineffective for failing to present a defense that the defendant would not endorse. See Lowenfield v. Phelps, 817 F.2d 285, 292 (5th Cir. 1987) (in case in which counsel asserted, at his client's request, an alibi defense rather than an insanity defense, court stated: "[t]he circumstances are extremely rare when counsel is not required to follow his client's instructions on a decision of this nature."); McClam v. Commissioner of Correction, 98 Conn.App. 432, 436-37, 909 A.2d 72 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007) (counsel's performance not deficient because "he failed to disregard the petitioner's own strategic choice to deny that he was the shooter.")
Of course, counsel should meet regularly with the client and provide him sound advice concerning the best defense, and first trial counsel did that. (Exhibit 1c; 2/14/89 Tr., pp. 93-94; Exhibit M3.) But, if those efforts fail, further attempts to override a competent client's wishes pose grave and unacceptable risks. First, such efforts risk a breakdown of the attorney-client relationship and possibly a request to discharge appointed counsel, with all the attendant disruptions to the trial process. Second, there is clearly a risk of a meritorious claim of ineffective assistance of counsel when counsel does not do what the client asks.
Further, in this case, presentation of extreme emotional disturbance at the guilt phase without the petitioner's cooperation or assent was essentially a recipe for disaster. It would be difficult to present the defense without the petitioner taking the stand and admitting the killings. The petitioner gave no indication that he would make this admission. If he did take the stand, there was a concern that he would deny the killings. Doing so would not only completely negate the defense of extreme emotional disturbance but it would also allow the state to impeach him with a statement he provided to Walter Borden, in which on that one occasion the petitioner did admit to the killings. (Exhibit L.) In either event, the defense was doomed to fail. To make matters worse, the jury that would later hear the penalty phase would have reason to believe that the petitioner was a liar.
The 1966 transcripts would not have changed any of these realities with regard to the defense of extreme emotional disturbance. Nor is there any reason to believe that the result would have been different if first trial counsel had attempted to mount a mental health defense of lack of specific intent or an affirmative defense of insanity. The petitioner would simply not cooperate in these efforts. Thus, the failure to discover the 1966 transcripts prior to the guilt phase did not affect the outcome of that phase of the trial.
B
The court reaches a similar conclusion with regard to the second penalty phase. The petitioner alleges that a diagnosis of PTSD would have supported the statutory mitigating factor that "[the defendant's] mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution . . ." General Statutes (Rev. to 1995) § 53a-46a(g). The petitioner also claims that PTSD would have bolstered the evidence that the petitioner acted under an extreme emotional disturbance, which was a non-statutory mitigating factor.
The court does not address the first penalty phase at this point because the Supreme Court vacated the resulting death sentence, and thus the transcripts could not have led to a more favorable result.
The court quotes the 1995 revision of the statute in conformity with the Supreme Court's approach. See State v. Breton, supra, 264 Conn. 331-33 n. 3.
The court disagrees with these allegations. To begin with, although the petitioner's cooperation with counsel improved for the second penalty phase, the petitioner still would not meet with new experts or talk substantively with Borden again.
Moreover, even without the 1966 transcripts, Borden recognized, based on his past examinations of the petitioner, that the petitioner was susceptible to dissociative states. (Exhibit N.) On direct examination during the second penalty phase, Borden recounted that the petitioner had told him, during a 1988 interview, that during the 1987 incident, "he felt [his] hand . . . taking, not stopping the knife." When second trial counsel asked him whether this description suggested dissociation similar to that involved in the account of the 1966 homicide, Borden replied: "Yes, in that sense, yes, it's very similar too in the death of his father where he described himself recalling, seeing the hand, his hand and the knife, not knowing what happened. So this is — yeah, you're right about that . . . It's similar. He felt his hand — it's like he didn't feel like he took the knife, he felt like his hand did it. It was a dissociative, it was not part of him. His hand taking the knife." (Exhibit 3a, 4/16/97 Tr., pp. 76-77.) Then, after Borden described several other occasions in which the petitioner told him about his hand killing his father, second trial counsel asked Borden whether this approach was "some type of defense mechanism one can develop?" Borden answered: "Disturbed person could but with a borderline personality they are prone to that kind of thinking." (Exhibit 3a, 4/16/97 Tr., pp. 10-11, 80, 88-89.) Shortly thereafter, Borden provided a more detailed explanation. "Well, that's — his description of his hands is a good example, he's not a whole person, he doesn't think of as, I did this, my hand did this. It's an experience of your body in an abnormal way. And that kind of perception, the way he talked about it is — would be an example of what we call depersonalization, where, this goes along with borderline personalities are prone to experience under stress. And there are reasons for it . . .
Borden had also reviewed the presentence investigation report stemming from the 1996 homicide. (Exhibit 3a, 4/16/97 Tr., pp. 10-11.)
"You blank it out. It's like you go into a feud [sic], you're not aware, you're just not aware of what you're experiencing. If you subject a young child to enough chronic abuse you're apt — they are apt to develop this kind of a defense mechanism. As adults it's experienced in the form of depersonalization, derealization. What you call kind of disoriented state, but it's a defense mechanism. The mind goes — if it's painful enough, the situation, the mind goes. Borderline personalities are prone to that under stress. It doesn't mean everyone but under severe stress they are prone to disassociate [sic] symptom or state in one kind or another." (Exhibit 3a, 4/16/97 Tr., pp. 95-97.) Thus, Borden's testimony made the panel fully aware that the petitioner experienced dissociative states during the 1966 and 1987 murders.
Although second trial counsel did not obtain the 1966 transcripts until the middle of the penalty phase, they submitted both transcripts as full exhibits for the panel to review. (Exhibit 3b, 4/18/97 Tr., pp. 109-10.) During his closing argument, attorney Butler highlighted the importance of these transcripts. "Look at page thirty-two of the coroner's inquest. Did he ever hit you. Yes, last summer he's talking about hitting him one time in the summer of `66. Look at the transcript. Page thirty-two. I see the knife in my hands. I have no recollection of stabbing. Isn't that exactly what he told Dr. Borden in 1988 in the interview? Isn't that exactly what Dr. Borden based his diagnosis on? His whole depersonalization.
The court presents a more detailed recitation of the related procedural facts on pages 34-36 of this decision.
"If not for Roland [Breton] a lot of things wouldn't have happened. No recollection of stabbing him. I saw the knife in my hand just like Dr. Borden testified." (Exhibit 90, p. 69.) Thus, Butler made precisely the connection that the petitioner now argues should have been made — that the 1966 transcripts revealed the petitioner to be prone to the same sort of depersonalization or dissociation that Borden believed the petitioner experienced during the 1987 murders. The panel, in fact, indicated that it did not see the need for a continuance to allow Borden to review the transcripts further because it had the transcripts as exhibits and it understood that the transcripts would provide further corroboration for Borden's assessment. (Exhibit 90, p. 2.)
In addition, although Borden did not have the opportunity to review the 1966 transcripts when he testified at the second penalty phase, he did have that opportunity later. In late 1998, appellate counsel Mark Rademacher sent the transcripts to Borden with a request that he explain whether the transcripts might change or strengthen his earlier diagnosis or testimony. (Exhibit 57.) Borden replied in writing in March 1999. In his letter, Borden concluded that, if the transcripts had been available at the time of his original examination of the petitioner in 1988 "the question of dissociated mental state would have been explored further . . ." Further, "[his] diagnosis would have included a significant dissociated mental state which in my opinion would have rendered Mr. Breton unable to appreciate the nature of his behavior and unable to conform his conduct to the requirements of the law at the time of the deaths of his ex-wife and son." (Exhibit 58.) In other words, while Borden testified at the second penalty phase that the petitioner qualified for the statutory mitigating factor involving a person who had a "significantly impaired" mental condition and ability to conform to the law, Borden would have gone further with the aid of the 1966 transcripts and rendered an opinion that the petitioner was "unable" to appreciate the nature of his behavior and "unable" to conform his conduct to the requirements of the law. The latter opinion is equivalent to one that the petitioner was legally insane. See General Statutes § 53a-13.
From 1983 on, section 53a-13(a) has provided: "[i]n any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law." See Public Acts 1983, No. 83-486; State v. Putnoki, 200 Conn. 208, 211 n. 2, 510 A.2d 1329 (1986).
The Supreme Court recounted the next development. "After the commencement of the proceedings on the petition for a new trial, counsel for the defendant [Norman Pattis] met with Borden to prepare him to testify at those proceedings. At that meeting, Borden indicated that, despite his statements in the March 9, 1999 report, he would not testify that, on the basis of his review of the 1966 transcripts, he had an opinion that differed from the opinion he had offered during the second penalty phase hearing. Rather, he indicated that the transcripts merely raised new questions about the defendant's mental state at the time of the offense and that further testing would be necessary in order to determine whether the defendant had been insane at the time." State v. Breton, supra, 264 Conn. 354.
The main point here is that, while Borden considered and then withdrew an opinion that the petitioner was legally insane at the time of the 1987 killings, he never once mentioned PTSD in any of his reports. The further testing that Borden recommended consisted of hypnosis and was for the purpose of confirming or ruling out legal insanity, not PTSD. (Exhibit 4, 5/9/02 Tr., p. 4.) Nor was there any testimony at the habeas hearing from Borden or anyone else that, at any point after review of the 1966 transcripts, Borden considered PTSD as an appropriate diagnosis for the petitioner.
In that regard, the petitioner presented evidence at the habeas trial that, in January 2002, Rademacher also sent the 1966 transcripts to Anne Phillips, a psychologist who testified for the petitioner at the second penalty phase. (Exhibits 59, 60.) The court admitted Phillips's written response into evidence only to explain Rademacher's actions, and not for the truth. Even if the court overlooked that distinction, it would not ultimately help the petitioner. Phillips reported that the historical information suggested "a need for a more careful examination of a diagnosis of Post Traumatic Stress Disorder associated with Mr. Breton's characterological schizoid functioning and to his hypervigilence regarding experiences of real or anticipated loss." She added that "[t]he availability of information regarding Mr. Breton's tendency to lose objective awareness at times of intense arousal and of his inability to cope historically in other situations involving change would have, at the time of the original evaluation, suggested a more careful evaluation of the diagnoses of Dissociative or Post-Traumatic Disorders, and would have led, at least, to a stronger and more pessimistic elaboration of Mr. Breton's loss of psychological coping under stressful circumstances." (Exhibit 60.) Rademacher forwarded Phillips's letter to Borden in February 2002, well before Borden's meeting with Pattis, which took place in May 2002. (Exhibit 4, 5/9/2002 Tr., pp. 3-4; Exhibit 60, p. 1.) Borden, as discussed, did not consider pursuing a diagnosis of PTSD but instead merely questioned his 1999 assessment that the petitioner was legally insane. Thus, the petitioner has failed to prove his central allegation that more timely discovery of the 1966 transcripts would have led Borden to a diagnosis of PTSD.
Although the petitioner presented experts at the habeas trial to say that, based on their examinations of the petitioner during the period from 2005 to 2011, the petitioner's diagnosis was chronic PTSD, that diagnosis does not establish that, even if trial counsel had obtained the 1966 transcripts during pretrial discovery, the result of the second penalty phase would have been different. There is no claim, nor could there be, that trial counsel were ineffective in their selection of Borden. See Echols v. State, 354 Ark. 530, 554, 127 S.W.3d 486 (2003) (choice of which expert to call is "largely a matter of professional judgment . . ."). Therefore, the question is whether the 1966 transcripts would have changed or affected the opinion of Borden, rather than the other experts.
Further, even if Borden had testified that the petitioner had PTSD at the time of the murders here, there is less than a reasonable probability that the outcome of the second penalty phase would have been different. It is important to recall that Borden did testify that the petitioner was prone to dissociative states under severe stress; that his ability to conform his conduct to the requirements of the law was significantly impaired; that his mental functioning was significantly impaired; that he suffered from a mental disease or defect, namely borderline personality disorder; that he was severely mentally ill; and that he suffered from an extreme emotional disturbance at the time of the offense. In addition, Phillips testified that the petitioner had a mixed personality disorder with paranoid, schizoid, and depressive features and that his mental capacity was significantly impaired. State v. Breton, supra, 264 Conn. 370-71. It is hard to imagine that adding PTSD to the list of mental impairments would have changed the outcome. Although the petitioner presented expert testimony at the habeas trial that PTSD could lead to violent behavior, one of the experts admitted that his diagnosis of PTSD put him "in the same ballpark" as Borden though they may have some "different diagnostic labels." Indeed, Borden explained that the "main feature" of borderline personality disorder is that the person overreacts with rage: "they overreact emotionally, not to anything, but to any indication of loss or separation. Then they overreact with rage. It's not rage of a normal person. It's the rage in an abnormal person. And the rage is abnormal." (Exhibit 3a, 4/16/97 Tr., p. 12.) In that regard, borderline personality disorder and PTSD were similar. Thus, although PTSD would have represented a technically different psychiatric diagnosis than borderline personality disorder, there is little reason to believe, given the evidence that Borden and Phillips did supply, that changing the diagnostic label would have changed the panel's legal conclusions that the petitioner did not prove either the statutory mitigating factor or the nonstatutory mitigating factor of extreme emotional disturbance.
With regard to extreme emotional disturbance, the Supreme Court has rejected the claim that the "unique mental and emotional characteristics [of the defendant] and the impact of those factors on his perception of the circumstances must be considered by the fact finder in determining whether the defendant's emotional disturbance was objectively reasonable." (Internal quotations omitted.) State v. Breton, supra, 264 Conn. 381-82. The Court has recognized, however, that, "as a general matter, a defendant may attempt to establish that an extreme emotional disturbance resulting from a debilitating psychological disorder reduced his culpability for a capital offense, even though it did not have an objectively reasonable explanation or excuse so as to constitute a defense to murder under § 53a-54a(a)." Id., 382-83. In this case, the Court nevertheless found that "[t]he panel reasonably could have discounted the testimony of the defendant's experts that he suffered from a long-term debilitating personality disorder as having been colored by the subjective and biased nature of the background information provided by the defendant and his family and by the defendant's natural anxiety and depression when he was interviewed in jail while awaiting trial for the murders." Id., 383. It is unlikely that evidence of PTSD would have changed this finding.
In sum, the panel, which consisted of three experienced jurists, heard Borden's testimony that the petitioner experienced dissociative states under stress, had the 1966 transcripts as full exhibits, and received Butler's closing argument that the transcripts supported Borden's testimony. Even when Borden later reviewed the 1966 transcripts, he never concluded or even suggested that the petitioner had PTSD. And it is at best speculative to say that the addition of PTSD to the litany of other mental diseases and defects that afflicted the petitioner would likely have led the panel to a different sentence in this case. For these reasons, the petitioner has failed to prove prejudice.
CLAIM ONE, COUNT II — APPELLATE COUNSEL'S WITHDRAWAL OF THE BRADY CLAIM (paras. 65-72)
The petitioner's second ground for relief is that appellate counsel, Mark Rademacher, rendered ineffective assistance of counsel by raising a Brady claim on appeal, based on the state's late production of the 1966 transcripts, without an adequately developed record and then withdrawing the claim. See State v. Breton, supra, 264 Conn. 349, 355. This ground is hard to fathom. If, as the petitioner alleges, appellate counsel withdrew the Brady claim because the record did not contain sufficient proof that the state suppressed favorable evidence that would have affected the outcome of the case, then appellate counsel can hardly be faulted. (Petition, para. 69.) Developing the record is not the responsibility of appellate counsel. Rademacher took the correct action in withdrawing an unsupported ground in order to focus attention on his stronger claims. "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).
Nor can there be any conceivable prejudice. If, as the petitioner alleges, the Brady claim lacked support in the record, then it would have been impossible for Rademacher to prevail even if he not withdrawn the claim. Hence, there is no merit whatsoever to this claim of ineffective assistance of appellate counsel.
CLAIM ONE, COUNT III — FAILURE TO REQUEST A TIMELY CONTINUANCE OF THE SECOND PENALTY PHASE (paras. 73-79)
The next claim is that second trial counsel rendered ineffective assistance by waiting until after the close of evidence to request a continuance to permit review of the 1966 transcripts. On direct appeal, the Supreme Court held that the panel did not abuse its discretion in denying the continuance. State v. Breton, supra, 264 Conn. 349-65. The Court recited the following factual background: "On Wednesday, April 16, 1997, during the second penalty phase hearing, the state's attorney asked Borden on cross-examination whether he would change his opinion as to the defendant's mental condition if he knew that: (1) the defendant's grandmother had testified at the December 12, 1966 inquest into the death of the defendant's father that the defendant had taken a knife into the bathroom when escaping from his father and had come out with the knife in his hand and attacked his father; and (2) the defendant had testified at the inquest that his father had hit him only once during the entire time that they had lived together. Borden responded that it would not. At that point, counsel for the defendant asked for and was provided with a copy of the transcript of the inquest proceeding.
"On the morning of April 17, 1997, counsel for the defendant asked the state's attorney whether there were any other transcripts pertaining to the events surrounding the death of the defendant's father. In response to this request, the state's attorney provided defense counsel with a copy of the transcript of the December 3, 1966 examination of the defendant and other witnesses by county detective Thomas F. Laden, which had occurred within hours of the killing. Over the weekend of April 19 and 20, 1997, defense counsel examined the two transcripts that had been provided by the state (1966 transcripts) and concluded that the testimony contained therein raised new issues about the defendant's mental state that required Borden's expertise to evaluate.
"The sentencing phase hearing reconvened on Tuesday, April 22, 1997. At the end of the morning session, defense counsel rested his case. At that time, he renewed a prior motion to impose a life sentence on the basis of the insufficiency of the aggravating factor. The motion was denied. He then moved to impose a life sentence on the basis of the state's failure to disclose exculpatory evidence, namely, the 1966 transcripts. Defense counsel also requested a two to three week continuance to allow the defense experts to review the transcripts and to prepare a supplemental report. He indicated that he needed the continuance `to simply have the experts review the materials of our investigation, review it and see — we're finding out in reviewing it that other people exist. That's where some of these people came from. There may be other people out there that can corroborate the doctor's opinion.' He also stated that `[o]ver the weekend and yesterday in preparation for argument I was preparing to argue from the transcript to show the corroboration for Dr. Borden and in our family history background evidence and it occurred to me that if this was not in evidence for the jury to consider in the last trial then when you look if anyone has the opportunity to ever look and I have at the closing argument from the last trial and the transcript from the last trial this never came up and it's critical and it's crucial.' Finally, defense counsel stated that the counsel who had represented the defendant at the guilt phase and first penalty hearing had indicated that `he never knew about [the 1966 transcripts]. If he did he certainly would have put [them] into evidence. He certainly would have put [them] because [they do] corroborate . . .' Defense counsel also indicated that he had waited until after the close of evidence to make the request because, if the court had granted his motion to impose a life sentence, then the request for a continuance would have been moot.
"The panel denied both the motion for life sentence and the request for a continuance, stating that the 1966 transcripts would have no effect on the conclusions or testimony of the experts other than to corroborate them, that the panel now had the transcripts before it as exhibits, and that there had been neither a claim of prejudice nor a request for a continuance until after the conclusion of evidence. The panel then proceeded to hear closing arguments and, as previously noted in this opinion, ultimately imposed the death sentence." (Footnote omitted.) Id., 350-52.
No doubt it would have been better for second trial counsel to have made the request for the continuance before he rested his case. However, it was not completely unreasonable for trial counsel to rest his case, make a dispositive motion first, and then, only if that failed, request a continuance as an alternative. After all, if the motion succeeded, it would bring about the ultimate relief that counsel were seeking — a life sentence — which was certainly more desirable than a mere continuance. Moreover, if the motion for a life sentence failed, but if the panel were nonetheless strongly inclined to grant a continuance, it clearly had authority to allow the petitioner to reopen his case. See id., 361; State v. Mendoza, 119 Conn.App. 304, 311, 988 A.2d 329, cert. denied, 295 Conn. 915, 990 A.2d 868 (2010). Under these circumstances, the court finds that counsel's performance, while not flawless, was constitutionally adequate.
The petitioner also has not proven prejudice. To begin with, given the panel's view that the transcripts were largely cumulative and that it could read them on its own, it is speculative to say that the panel would have granted a more timely continuance request. Further, even if the panel had granted a continuance, such a decision was not likely to have changed the outcome of the penalty phase. As discussed in detail above, even with the benefit of more time and consideration of the 1966 transcripts, Borden ultimately did not change his opinion in this case. At no point did he ever suggest that the petitioner had PTSD, and there is no reason to conclude that adding PTSD to the list of the petitioner's mental impairments would have led the panel to a different verdict. Accordingly, the petitioner's claim of ineffective assistance of counsel must fail.
CLAIM ONE, COUNT IV — FAILURE TO TEST FOR AND PRESENT EVIDENCE OF METHAMPHETAMINE ABUSE (paras. 80-97) I
Next, the petitioner claims that all trial counsel rendered ineffective assistance by failing adequately to investigate evidence of the petitioner's methamphetamine abuse and to present and explain the mitigating impact of that evidence to the panel. The first aspect of this claim is the contention that trial counsel failed to discover and test a sample of the petitioner's blood that would have provided scientific support for the conclusion that he was abusing methamphetamine at the time of the offense.
A
The court agrees that first trial counsel were deficient in this regard. Pursuant to a search warrant, the police had blood drawn from the petitioner at about 9:00 p.m. on December 14, 1987 — approximately forty hours after the crime. (Exhibits 19, 20, 70.) First trial counsel were aware of this development, as evidenced by the fact that, in March 1989, they filed two motions to suppress the blood sample. (Exhibits 21, 22.) At about the same time, however, the state filed a motion to obtain another blood sample from the defendant for the purpose of "blood grouping" which meant, in essence, attempting to match the petitioner's blood with blood found at the scene. (Exhibit 23.) Because first trial counsel agreed to the granting of the state's motion, the state tested the second sample but never tested the first sample of blood.
The court finds the following additional facts. The first sample of blood remained in a tube or vial contained in the state's file. It was available for testing by trial counsel under disclosure rules requiring the state to produce for testing any "tangible objects . . . obtained from or belonging to the defendant." Practice Book § 741(2) (now Practice Book § 40-11(2)). Trial counsel did not, however, ask to have the blood tested. The blood sample stayed in the state's file until 2005 when present habeas counsel discovered the sample and commendably requested that the state send the sample out for toxicological testing. (Exhibit 70.)
The court concludes that the failure of trial counsel, and particularly first trial counsel, to have the blood sample tested amounted to inadequate performance. Trial counsel knew that the petitioner at the time had a methamphetamine habit and that evidence of drug use could support an intoxication defense or a mitigating factor. (Exhibits 10, 24.) Although the state sought to test the petitioner's blood for purposes of establishing identity, there was no reason why the same blood could not be tested for methamphetamine or other drugs. Testing the first sample for drugs would have provided scientific, reliable, and objective evidence of the petitioner's drug levels shortly before the crime. As the petitioner has argued, a blood test for drugs is the "gold standard." Although the state might have challenged the import of the test results, the possibility that trial counsel would have obtained exculpatory evidence from the blood sample was too good to forego. Trial counsel offered no strategic reason for failing to have the blood tested for drugs, and the court can conceive of none. The plaintiff has proven deficient performance.
B
The petitioner alleges prejudice based on the assertion that drug tests of his blood would have supported a claim of intoxication at the guilt phase and a mitigating factor of drug abuse at the penalty phase. At the guilt phase, the assertion of intoxication evidence essentially represented a concession by the petitioner that, although he was intoxicated at the time, he nonetheless committed the killings. See State v. Chasse, 51 Conn.App. 345, 375, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). The court credits the testimony of McWhirter that the petitioner refused to allow first trial counsel to take this approach. Drug testing the petitioner's blood would not likely have changed the petitioner's mind; the petitioner knew that his attorneys had abundant nonscientific evidence of the petitioner's drug and alcohol abuse, yet he still opposed presenting evidence of intoxication. For all the reasons previously discussed, there was neither an obligation to attempt, nor a likelihood of success in attempting, to override the petitioner's stance. There was therefore no prejudice in the guilt phase arising from the failure of first trial counsel to have the petitioner's blood tested for drugs.
The petitioner labels intoxication as an "affirmative defense." Petition, para. 92. This label is incorrect. "[W]hile intoxication is neither a defense nor an affirmative defense to a murder charge in Connecticut, evidence of a defendant's intoxication is relevant to negate specific intent which is an essential element of the crime of murder . . . Intoxication, however, does not automatically negate intent . . . It is for the jury to decide, after weighing all the evidence adduced at trial, whether a criminal defendant's intoxication rendered him incapable of forming the intent required to commit the crime with which he is charged." (Citation omitted; internal quotation marks omitted.) State v. LaSalle, 95 Conn.App. 263, 271, 897 A.2d 101, cert. denied, 279 Conn. 908, 901 A.2d 1227 (2006).
C
Analysis of the impact of drug test evidence at the penalty phase requires consideration of additional facts. Tests of the petitioner's blood sample conducted in 2005 revealed a methamphetamine level of 41 nanograms per milliliter (ng/ml) at the time. There is no one formula for extrapolation of this reading back some eighteen years to the time of testing on December 14, 1987. The petitioner presented credible expert testimony that the overall level of degradation — probably due to metabolizing of the drug — would range from 33% to 80%, most of which would take place in the first year of storage of the blood. Reliance on those figures yields methamphetamine levels from 54 to 205 ng/ml at the time of the blood draw. But the respondent also established that there is at least a reasonable possibility of fluid loss due to evaporation during storage, thus having the effect of increasing the relative concentration of drugs in the blood over time. Given that possibility, there is some uncertainty whether the drug levels would have been as high as 54 to 205 ng/ml in 1987.
Even giving the petitioner the benefit of the doubt on that point, there are several additional uncertainties involved in calculating the petitioner's drug level at the time of the crime of approximately 4:00 a.m. on December 13, 1987 — some forty hours before the drawing of the blood. The petitioner presented two sets of figures. These figures depend initially on the fact that the half life of methamphetamine, which is the time it takes for one-half of the ingested drug to clear out of the blood stream, normally ranges from eight to twelve hours for a person of the petitioner's height and weight and with normal urine pH. If one assumes, somewhat conservatively, a half-life of twelve hours, and relies on the assumption that the drug levels at the time of the test were 54 to 205 ng/ml, then the levels thirty-six hours earlier would have been approximately 400 to 1600 ng/ml. Alternatively, if one assumes a half-life of ten hours, but no degradation from 1987 to the 2005 testing level of 41 ng/ml, then the methamphetamine level forty hours before the 1987 blood draw would be 656 ng/ml.
These blood levels are clearly above therapeutic range, which is 10 to 50 ng/ml. (Exhibit 69.) But it is not clear that the blood concentration levels in the 400 to 1600 ng/ml range estimated by the petitioner's witnesses would necessarily lead to violent or erratic behavior or even intoxication, which are the petitioner's ultimate claims here. One of the key variables is tolerance, which arises when a person who uses drugs regularly will require a larger dose and more frequent administrations to get the same effect as a smaller dose in someone else. The reported range of methamphetamine in tolerant abusers is greater than 200 ng/ml. (Exhibit 69.) There are some examples of people who were found asleep with methamphetamine concentrations from 1200 to 2000 ng/ml.
Another variable is the time it takes to reach peak effect. This time will vary depending on the ingestion method. In this case, the most likely method was oral ingestion in pill form. This method takes two to three hours to reach peak effect. Finally, there is the variable of duration of the peak. The duration will vary depending on how fast the body eliminates the drug, which in turn depends on the pH level, or acidity, of the urine.
Even if one assumes that the level of methamphetamine in the petitioner's blood around the time of the crime would have had an adverse effect on his behavior, there remains the critical question of precisely when the petitioner actually consumed the drug. On this question, there is a failure of proof by the petitioner. The available evidence indicates that, on December 9, 1987, the petitioner received a prescription for 30 daily pills of 15 milligram strength of desoxyn, which is the pharmaceutical name for methamphetamine, for purposes of controlling his weight. The petitioner nonetheless had a habit of abusing his medication by taking the pills too early. (Exhibits 10, 24.) The petitioner's sister discovered that the pills were "just about all gone by December 13 or 14." (Exhibit 3a, 4/15/97 Tr., p. 60.) The penalty phase evidence reveals that the police arrested the petitioner during the morning hours of December 14, thus closing the period during which the petitioner could realistically have consumed the drugs. (Exhibit 3a, 4/15/97 Tr., pp. 141-52.)
The Supreme Court decision states that "[d]esoxyn is an amphetamine with a potent stimulant effect." State v. Breton, supra, 264 Conn. 344. The testimony revealed that amphetamine is a metabolite of methamphetamine.
There is no eyewitness account of exactly when during the interval between December 9 and 13 or 14 the petitioner consumed the desoxyn. However, the petitioner's own detailed statement to Borden about the events leading up to the murders is very revealing. (Exhibit L.) The petitioner reported abusing desoxyn and other drugs from 1985 on. On Wednesday, December 9, when the petitioner refilled his desoxyn prescription, the petitioner admitted taking desoxyn but could not remember how many. He took fiorinal to counter the nervous condition caused by the desoxyn. He was also drinking. The petitioner worked at night. On the next day, Thursday, December 10, the petitioner "continued drinking and taking pills, trying to stay awake." That evening he resumed "drinking and taking pills . . ."
On Friday, the petitioner spent most of the day at home. The petitioner stated that he continued drinking, but does not mention desoxyn or pills. On Saturday, the petitioner admits going to a bar on South Main Street and having two beers, stopping at a bar in Watertown, and then driving to one or two other bars in Waterbury. The petitioner next drove to his ex-wife's home and had some wine with her. In the evening hours, the petitioner had a couple of drinks at another bar. At this bar, the petitioner met a woman and remained there "dancing and drinking . . ." During the early morning hours of Sunday, December 13, the petitioner went to the woman's home and "had a couple of drinks." The petitioner then went home and had another drink. At that point, the petitioner returned to his ex-wife's house, where he killed her and his son. The petitioner's statement to Borden does not address his activities after the murders. (Exhibit L.)
What is notable about this narrative is that the petitioner provided a detailed account of desoxyn use up until Thursday, December 10, and a detailed account of his drinking from that time until the murders, but he does not mention any desoxyn use on Friday, Saturday, or Sunday, December 11-13. Given the amount of information the petitioner supplied about his drug use at other times and his drinking shortly before the murders, the most logical inference from the fact that the petitioner is silent about desoxyn use shortly before the crime is that the petitioner did not use desoxyn during that time period. It is, of course, uncertain how much desoxyn was left after the petitioner's use of it on Wednesday and Thursday, December 9 and 10. But, as some of the expert testimony confirmed, the petitioner's use of desoxyn from his December 9 prescription shortly after the crime — rather than before — is at least consistent with the blood test results, as extrapolated back to 1987.
The petitioner argues that his behavior before the crime is more consistent with drug intoxication than his behavior after the crime. This theory relies on isolating irrational behavior before the murder and assuming its explanation lies in abuse of drugs, while taking snapshots of his activities after the murder and describing them as too rational to indicate drug use. The court does not accept this approach. It attempts to apply a centrifuge to the petitioner's actions and determine whether some parts are attributable to drug use, as opposed to alcohol abuse or purely voluntary decisions, and whether other parts represent sober behavior as opposed to the normal behavior of someone who was a tolerant abuser. In doing so, the petitioner's approach lapses into broad generalizations about some behavior and overlooks other behavior during the same time period.
The point here is not that the respondent has proven that the petitioner took the bulk of the methamphetamine after the murders. The point is rather that, even after testing the petitioner's blood, the petitioner has not proven that he took an intoxicating dose of methamphetamine shortly before the murders. In his attempt to prove this fact, the petitioner simply relies upon one uncertainty after another. As discussed, there is some uncertainty concerning whether the 41 ng/ml result obtained in 2005 extrapolates back to an equal or greater result on December 14, 1987. There are also uncertainties, based on variables such as the petitioner's tolerance and urine pH, as to what effect the petitioner's last prescription, if taken as an overdose, would have had on him, how long it would have taken to have that effect, and how long that effect would have lasted. Without this information, it is difficult to identify the particular time when the ingestion of an overdose of methamphetamine would most likely have had an effect on the petitioner's actions in the early morning hours of December 13. Finally, there is simply no evidence that the petitioner took an overdose of the methamphetamine at that critically important time, whatever it may be. It remains reasonably possible that the petitioner took nonintoxicating amounts of methamphetamine at various times before the murders and the remainder of prescription at various times after the murders. And, to be sure, the best evidence — the petitioner's statement to Borden — indicates that the petitioner did not take methamphetamine at any time just before the December 13 murders. Accordingly, the petitioner has failed to prove a reasonable probability that, even if testing of the petitioner's blood had occurred in a timely fashion, the outcome of the penalty phase would have been different.
II
The second aspect of the petitioner's claim regarding methamphetamine abuse is the contention that second trial counsel failed to offer "independent pharmacological or forensic evidence" establishing the link between methamphetamine and violence and to explain that evidence to the panel. The short answer to this claim is that because, as discussed above, the petitioner did not prove, through his blood test or otherwise, that he was intoxicated by methamphetamine at the time of the offense, he cannot establish ineffective assistance from the absence of expert evidence on the purported link between methamphetamine intoxication and violence.
Furthermore, second trial counsel did present quite competent evidence on this issue. Walter Borden, who was a board certified forensic psychiatrist, testified as follows, upon questioning by second trial counsel, on the adverse effects of desoxyn on the petitioner:
Q: "What is Desoxyn?"
A: Desoxyn is a trade name for methamphetamine, it's an amphetamine."
Q: "Is it a strong amphetamine?"
A: "Oh, yeah, the amphetamines we note now are very potent stimulants, give you in the order of ten times as strong as cocaine."
Q: "As far as being a stimulant you mean?"
A: "As far as its effect on drug and being a stimulant, cocaine and amphetamines have very similar effect on the brain and methamphetamines, you know, they are two kinds. There are others, but the two main ones are, destroamphetamine which is amphetamine and methamphetamine. Potency is, as I say, it's considered ten times that of cocaine. It was absolutely the worse [sic] medication he could have been prescribed, that was prescribed."
Q: "They were prescriptions from a doctor?"
A: "Right."
Q: "Why was that the worse [sic] thing for his particular condition?"
A: Well, because methamphetamine or amphetamines, cocaine too, in a depressed person if they take those drugs over some period of time, it makes them more depressed. They are associated with paranoia. It makes paranoia worse. It makes depression worse. They are drugs that may trigger violent behavior. Certain drugs we find associated with violence and certain drugs not, from the direct drug effect. Amphetamines and cocaine are apt to disinhibit and you're apt to find violent acts committed with those drugs. A man who was depressed and paranoid to begin within this day and age what we know about this, this is what I'm saying, this was — I can't think of a worse drug for him to have taken or been given and combined with alcohol, it's — and combined with his mental condition, it would be like if you had a kind of simmering fire like throwing gas on it. So the Desoxyn would be very, very harmful to his in his condition." (Exhibit 3a, 4/16/97 Tr., pp. 4, 62-63.)
The petitioner minimizes this testimony and complains that second trial counsel did not present "independent pharmacological or forensic evidence" on the link between methamphetamine and violence. However, the petitioner himself did not do so at the habeas trial. The petitioner called Gary Lage, a pharmacologist and a toxicologist, but Lage testified about the extrapolation of the 2005 test results back to December 14, 1987 without addressing the likely effects of methamphetamine on the petitioner's behavior. The petitioner also called Pablo Stewart, a board certified psychiatrist, who did testify about the link between methamphetamine and violence. Although Stewart testified in more detail than Borden, he was no more "independent" and no more of a pharmacologist or forensic expert than Borden. Because the petitioner thus did not call an independent pharmacologist or forensic expert to testify about the link between methamphetamine intoxication and violence, the court cannot determine what, if anything, such an expert would have added to the case. See Henderson v. Commissioner of Correction, 129 Conn.App. 188, 194-95, 19 A.3d 705 (2011).
Indeed, according to the testimony, Stewart was board certified in psychiatry, whereas Borden was board certified in forensic psychiatry.
There is no other basis upon which to attack the choice of Borden as an expert in this area. The choice of which expert to call is largely a matter of professional judgment based on the circumstances at the time. See Echols v. State, 354 Ark. 530, 554, 127 S.W.3d 486 (2003). Borden, a veteran psychiatric expert in court, was a reasonable choice. (Exhibit 3a, 4/16/97 Tr., 3-4.) The fact that the petitioner may now call an expert who can provide greater detail than the original expert does not prove ineffective assistance. Instead, it merely invites inappropriate review of the case through the "distorting effects of hindsight . . ." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, supra, 290 Conn. 512.
Finally, it is true that, during closing argument, second trial counsel did not cite Borden's testimony on methamphetamine and only made passing mention of the petitioner's methamphetamine use at the time of the murders. (Exhibit 90, pp. 27, 70.) However, the panel already had before it Borden's pointed testimony to the effect that methamphetamine use may trigger violent behavior. Trial counsel also submitted the following mitigating factor to the panel: "he was under the influence of alcohol and prescription medication at the time of the offense . . ." State v. Breton, supra, 264 Conn. 335 n. 7. The court can presume that the panel of three judges understood the significance of Borden's testimony without the need for counsel to belabor it during closing argument. Thus, even if the petitioner had proven that he was under the influence of methamphetamine at the time of the crime — which he did not — he has failed to establish ineffective assistance in the presentation and development of expert testimony on that issue.
CLAIM ONE, COUNT V — COMPETENCY TO STAND TRIAL (paras. 98-127)
The petitioner next argues that first trial counsel, second trial counsel, and appellate counsel were ineffective in failing to press the claim that the petitioner was not competent to stand trial. First trial counsel did, however, request a competency examination of the petitioner prior to the commencement of trial. (Exhibit 1a, 1/13/89 Tr., pp. 2-4.) A hearing took place and the trial court found the petitioner competent to stand trial. (Exhibit 1a, 1/19/89 Tr., pp. 1-11; Exhibit C.) According to the credible evidence at the habeas trial, neither first nor second trial counsel saw the need for a further competency exam. Although the petitioner presented several expert witnesses during the habeas trial on the subject of the petitioner's mental illness, such mental illness does not necessarily connote incompetence to stand trial. See State v. George B., 258 Conn. 779, 787, 785 A.2d 573 (2001). In contrast, on the specific contention that the petitioner was not competent to stand trial, the petitioner presented no evidence at all. Accordingly, there was no ineffective assistance of counsel by trial counsel in failing to take additional steps to challenge the finding of petitioner's competency to stand trial.
The petitioner alleges ineffective assistance of appellate counsel because appellate counsel supposedly failed to raise a claim based on the "new standard [for evaluating competency] adopted by the United States Supreme Court in 1966." (Petition, para. 117.) Neither the petition nor any of the petitioner's briefs identifies the Supreme Court case in question and the petitioner proved unable to do so at closing argument. The court concludes that the petitioner has abandoned this claim. See Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999).
CLAIM ONE, COUNT VI — FAILURE TO PRESENT AN EXTREME EMOTIONAL DISTURBANCE DEFENSE AT THE GUILT PHASE (paras. 128-42)
Next, the petitioner asserts that first trial counsel rendered ineffective assistance by presenting a marginal reasonable doubt offense at the guilt phase to the exclusion of a meritorious extreme emotional disturbance defense. The court has already discussed its conclusion that first trial counsel were not ineffective in deciding against overriding the petitioner's adamant opposition to presenting an extreme emotional disturbance defense or any other mental health defense that would amount to an admission that the petitioner committed the killings. Further, as also noted, the defense of extreme emotional disturbance would not be available at the guilt phase if, as here, it were premised on the petitioner's mental illness. Therefore, first trial counsel were not ineffective in deciding against presenting a defense of extreme emotional disturbance at the guilt phase.
See pages 22-25, supra.
See note 13, supra.
CLAIM ONE, COUNT VII — FAILURE TO OBJECT TO, AND RAISE AN ISSUE ON APPEAL CONCERNING, THE PETITIONER'S JURY WAIVER (paras 143-51) I
In count VII of claim One, the petitioner initially contends that second trial counsel rendered ineffective assistance by failing to object when the court accepted the petitioner's waiver of a jury for the second penalty phase. The petitioner alleges that the court's canvass was inadequate because it did not address the question of whether, in view of the petitioner's mental illness, he was competent to waive a jury.
The court, Damiani, J., canvassed the petitioner about a month before the second penalty phase began. Although the court did not inquire specifically about mental illness, it did question him about his age, his educational background, and whether he had taken any drugs, alcohol, or medication. The court explained some of the differences between a jury trial and a trial to the court, elicited that the petitioner understood these points, and then confirmed that the petitioner had elected a court trial on his own free will. The court accordingly found that the petitioner made a knowing, intelligent, and voluntary waiver of the right to a jury trial. (Exhibit 3a, 3/14/97 Tr., pp. 1-5.)
As stated, the petitioner had already been found competent to stand trial, and he introduced no evidence at the habeas trial to contradict that finding. Ordinarily, such a finding of competence to stand trial establishes competence to waive a jury trial, even in a defendant with a history of mental illness, and does not require any additional canvassing. See State v. Oullette, 271 Conn. 740, 751-52, 859 A.2d 907 (2004). Thus, there was nothing inadequate about the trial court's canvass in that regard. Finally, the evidence at the habeas trial revealed that second trial counsel had thoroughly discussed the issue of a jury waiver with the petitioner and were satisfied that the petitioner was competent to waive a jury and was agreeable to doing so. Accordingly, there is no basis to claim that second trial counsel should have objected to the canvass based on the petitioner's mental health.
The petitioner also briefs the argument that the canvass was inadequate because it did not address all of the possible outcomes in the event of a hung jury. This argument is not properly before the court because it is not alleged in the petition. See Jenkins v. Commissioner of Correction, 52 Conn.App. 385, 405-07, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).
Alternatively, there is no merit to the petitioner's argument. The petitioner relies on the two decisions in State v. Daniels, 207 Conn. 374, 394-97, 542 A.2d 306 (1988) ( Daniels I) and 209 Conn. 225, 231, 550 A.2d 885 (1988) ( Daniels II), in which our Supreme Court clarified that, if a capital jury is unable to reach a unanimous verdict on the penalty, the court has three options: to declare a mistrial, to "acquit" the defendant of the death penalty, or to dismiss the death penalty proceeding. In the present case, the trial court told the petitioner only that, if the jury were split, "it could still result in life in prison without parole." (Exhibit 3a, 3/14/97 Tr., p. 2.)
While the trial court thus did not inform the petitioner of all the possible outcomes of a hung jury, there was no requirement that it do so. The constitutional standard for the canvass of a valid jury waiver is that the record show that the defendant "having been informed of his right to a jury trial, freely and intelligently elected to be tried by a three judge court instead." State v. Oullette, supra, 271 Conn. 754. The Practice Book did not mandate anything more specific. See Practice Book § 839. There is no obligation of the court to explain the specific consequences of a hung jury. Such a matter is not central to the waiver of a jury trial. Moreover, the court credits the evidence at the habeas trial that, as a matter of habit and practice, second trial counsel would have explained to the petitioner all the known ramifications of a hung jury and a divided panel. Therefore, there was no basis for second trial counsel to object to the court's canvass of the petitioner as inadequate.
Former Practice Book § 839, in addressing an initial election of a court trial, provided in part that "the judicial authority shall advise the defendant of his to a trial by jury. If the defendant does not then elect a jury trial, his right thereto may be deemed to have been waived." Section 42-1 of the current Practice Book revises this language only slightly to state: "[i]f at the time the defendant is put to plea, he or she elects a trial by the court, the judicial authority shall advise the defendant of his or her right to a trial by jury and that a failure to elect a jury trial at that time may constitute a waiver of that right."
McWhirter testified that second trial counsel most likely told the petitioner that there was no definite answer at that time to the question of whether there could be a retrial if a jury could not unanimously agree on the penalty. By 1997, however, the Supreme Court had decided Daniels I and Daniels II, making clear that the court could order a retrial in these circumstances. Nevertheless, there is no indication that second trial counsel's relatively minor inaccuracy in advising their client had any impact on the petitioner's election of a court trial or that it provided a basis for counsel to object to the court's canvass.
Finally, the petitioner did not testify at the habeas trial. Thus there is no evidence that, had the court's canvass delved more specifically into the petitioner's mental health or his knowledge of the consequences of a nonunanimous jury, the petitioner would have elected a jury trial for the second penalty phase. Thus, the petitioner has wholly failed to prove prejudice.
II
The second prong of the petitioner's attack is the contention that appellate counsel rendered ineffective assistance in failing to challenge the court's canvass on appeal. The petitioner alleges only that appellate counsel should have raised a claim that the canvass was inadequate to address the petitioner's mental health issues. Because, as discussed, there is no merit to this claim, appellate counsel had no obligation to raise it.
The petitioner also briefs the claim that appellate counsel should have challenged the insufficiency of the court's canvass concerning the consequences of a nonunanimous jury. Again, this claim is not properly before the court because the petitioner did not allege it in his petition. See Jenkins v. Commissioner of Correction, supra, 52 Conn.App. 405-07. Alternatively, the claim fails on the merits. At the time, there was no case law requiring a trial court to address this issue in a jury waiver canvass. While the petitioner states in his brief that a similar claim is currently pending before our Supreme Court in State v. Rizzo, Docket No. SC 17527 (argued October 22, 2010) ( Rizzo II), at the time of the appeal in this case the argument that the canvass review the consequences of a nonunanimous jury was at best a novel claim. As such, appellate counsel was under no obligation to raise it. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 461-62, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). Therefore, there was no ineffective assistance of appellate counsel on this matter.
CLAIM ONE, COUNT X — CONNECTICUT'S CAPITAL PUNISHMENT STATUTES (paras. 169-77)
For his next claim, the petitioner alleges that appellate counsel rendered ineffective assistance by failing to argue that Connecticut's capital punishment scheme improperly permitted the fact finder to screen out inherently mitigating evidence based on its lack of any nexus to the crime. This argument initially focuses on the following language in subsection (d) of the statute: "[i]n determining whether a mitigating factor exists concerning the defendant's character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant's character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case." General Statutes § (Rev. to 1995) § 53a-46a(d).
The petitioner first maintains that the statute is unconstitutional on its face because the statutory phrase "considering all the facts and circumstances of the case" bars consideration of inherently mitigating evidence that may bear little or no relation to the case. This contention is foreclosed by our Supreme Court's decision in State v. Rizzo, 266 Conn. 171, 833 A.2d 363 (2003) ( Rizzo I). In Rizzo I, the Court addressed the constitutionality of subsection (d) in view of claims that the language "(1) screens out mitigating evidence from the weighing process; [and] (2) allows the jury to refuse to consider constitutionally relevant mitigating evidence in the weighing process . . ." Id., 291. These claims are essentially identical to the claim now advanced. The Court observed that the statute provides that "the defendant must not only establish the factual bases of proposed mitigating evidence, but also must show that the proposed evidence is mitigating in nature. It added that this "two step process . . . necessarily results in some `screening out' of proposed mitigating evidence, regardless of whether the determination that the proposed mitigating evidence in nature is made `considering all the facts and circumstances of the case.'" Id., 297. The Court concluded that there is nothing unconstitutional about this screening because the United States Supreme Court has "`never . . . held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence.'" Id., 292 (quoting Buchanan v. Angelone, 522 U.S. 269, 276-77 (1998)). Of course, the court is absolutely bound by our Supreme Court's holding in Rizzo I. See Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996). On that basis, the court rejects the petitioner's facial challenge.
The petitioner's claim is also very similar to the argument actually raised on appeal in this case, in which the defendant contended that the statute was unconstitutional, both on its face and as applied, because that "the facts and circumstances language is `broad and all encompassing . . . plac[ing] no meaningful limit on what . . . the sentencer may consider when rejecting a proven mitigating fact.'" State v. Breton, supra, 264 Conn. 414. The Supreme Court found no merit in this argument. Id., 414-15. For the purposes of this decision, the court will assume that this holding does not create a res judicata bar to consideration of the present claim.
Although Rizzo I involved a weighing statute, in which the fact finder would have to weigh aggravating against mitigating factors, the Court made clear that "[t]he addition of the weighing provision does not change the nature of the jury's determination of mitigation — it merely changes what happens after the jury finds mitigation. (Emphasis in original.) Id., 296.
The petitioner's challenge to the statute as applied fares no better. The petitioner asserts that the panel rejected evidence that the petitioner was a model prisoner as a possible mitigating factor because that factor bore no relation to the facts and circumstances of the case. The petitioner relies on the following statement of the panel: "There could hardly be a mitigating factor if it's not considered in the context of what it's intended to mitigate." (Exhibit 3a, 4/9/97 Tr., p. 82.) The panel made that statement, however, at the beginning of the penalty phase in response to a motion filed by the petitioner. Contrary to the petitioner's allegations, the statement does not prove that the panel, at the end of the penalty phase, "rejected the mitigating value of this proven fact based [sic] because it interpreted the capital felony statute to require it to disregard factors that lack a nexus to the crime." (Petition, para. 175.) Indeed, if anything, the panel's statement was a correct statement of the law because it suggested that the panel would have to decide mitigation "considered in the context of" all the facts and circumstances of the case, as the statute requires. See General Statutes § 53a-46a(d). See also Rizzo I, supra, 266 Conn. 294 (quoting State v. Ross, 230 Conn. 183, 284, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165 (1995) ("[a] jury that is entrusted with the awesome responsibility for deciding whether the death penalty should be imposed cannot be asked to find facts in a vacuum.")
On direct appeal in this case, the Supreme Court found that the panel had ample basis to reject the petitioner's prison record as a mitigating factor because "the defendant's good behavior in prison after he committed the murders did not compel a finding that the defendant should not be held fully responsible for his crime." State v. Breton, supra, 264 Conn. 380. Accordingly, there is no merit to the petitioner's constitutional challenge to the statute, and appellate counsel was not ineffective in failing to raise it on appeal.
CLAIM ONE, COUNT XI — THE PETITION FOR A NEW TRIAL (paras. 178-88)
In May 1999, the petitioner, represented by Mark Rademacher, filed a petition for a new trial alleging that the 1966 transcripts constituted newly discovered evidence that would have changed Borden's opinion concerning the petitioner's mental state at the time of the crime and thereby led to a different result in both the guilt and penalty phases. See State v. Breton, supra, 264 Conn. 352-54. Attorneys Norman Pattis and James Nugent took over the representation in early 2002. In count XI of claim One, the petitioner now alleges that Pattis and Nugent rendered ineffective assistance of counsel in failing adequately to prepare for the evidentiary hearing on the petition. The petitioner claims that new trial counsel neglected to interview Borden until the hearing was underway, thereby learning too late that Borden would not support his opinion in his March 1999 letter, at least without further testing. The petitioner further alleges that counsel were also ineffective when they withdrew the petition with prejudice after the trial court, Licari, J., denied their motion for a continuance, thereby forfeiting the petitioner's right to appeal that denial.
See the discussion of this letter on page 29 of this opinion.
The respondent's threshold response is that there is no right to effective assistance of counsel on a petition for a new trial. The court agrees with the respondent. It is true, as Strickland stated, that "the right to counsel is the right to the effective assistance of counsel." (Internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 686. The corollary is, however, that the right to effective assistance of counsel attaches only when there is a right to counsel in the first place. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 723 n. 3, 1 A.3d 170 (Schaller, J., dissenting), cert. granted, 298 Conn. 918, 4 A.3d 1226 (2010). The Appellate Court has held that there is no constitutional or statutory right to counsel for a petition for a new trial. Small v. State, 101 Conn.App. 213, 920 A.2d 1024 (2007), appeal dismissed, 290 Conn. 128, 962 A.2d 80, cert. denied, 130 S.Ct. 102 (2009). Accordingly, there is no right to effective assistance of counsel in a petition for new trial.
The petitioner argues that the petition for new trial in this case was "inexorably intertwined both factually and procedurally with his direct appeal" and therefore constituted a "critical stage" in his criminal proceeding entitling him to effective assistance of counsel throughout. The petitioner would have a stronger argument if the proceeding in question were a remand from the Supreme Court. But it was not. The petition had been pending some two and one-half years before oral argument on the appeal took place in January 2002. At the oral argument, Chief Justice Sullivan, after brief questioning, announced the decision of the Court that the appeal "will be continued" so that the petition for a new trial could go forward promptly and the Court would be able to schedule both appeals "jointly." The Court's hope was that the continuance will "expedite a final decision on all the claims in the matter." State v. Breton, supra, 264 Conn. 353-54. (Exhibit 4, 1/8/02 Tr., pp. 30-31.) As the petitioner alleges, the Court "ordered an expedited hearing on the claim in the New Trial Petition to permit any appeals from the Petition to be consolidated with [the petitioner's] pending appeal of his death sentence." (Petition, para. 181.) Thus, the Court continued the appeal rather than remanding it to the trial court and all along treated the petition for a new trial as a related but separate case. To do so was in keeping with the nature of the petition as "collateral to the action in which a new trial is sought, [though] it is by its nature a distinct proceeding . . ." (Internal quotation marks omitted.) State v. Gonzalez, 106 Conn.App. 238, 260-61, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). See also Small v. State, supra, 101 Conn.App. 217 ("A proceeding on a petition for new trial, therefore, is not a criminal action. Rather, it is a distinct proceeding that is commenced by the service of civil process and is prosecuted as a civil action.") Accordingly, there is no special reason to attach a right to counsel, or effective assistance of counsel, to the petition for a new trial in this case. The petitioner's remedy, if any, is a suit for malpractice.
The petitioner's brief does not address the question of what remedy would apply in the event that there was a right to effective assistance of counsel on the petition for a new trial and a court found a violation of that right. Under at least one line of analogous authority, involving a violation of the right to effective assistance of appellate counsel, the remedy would be to provide a new petition for a new trial which, in this case, would raise the question of the impact of the 1966 transcripts on the criminal trial. See Small v. Commissioner of Correction, 286 Conn. 707, 724 n. 9, A.2d (2008). The court, however, has essentially provided that remedy in this habeas case. The court addressed this particular question in the discussion of claim One, count I, and found that the petitioner is not entitled to a new trial.
CLAIM ONE, COUNT XII — CLOSING ARGUMENT (paras. 189-96)
The petitioner next contends that first trial counsel and appellate counsel respectively rendered ineffective assistance by failing to object to improper closing argument at the guilt phase and by failing to raise this claim on appeal. The petitioner initially refers to one instance in which the state's attorney, John Connelly, allegedly vouched for the credibility of a key state's witness by describing him as "honest and straightforward" and as someone who did not "come in here and lie." (Exhibit 1f, 4/10/89 Tr., pp. 41-44.) These comments were entirely proper. At no point did Connelly state or imply that he personally believed the witness. Instead, the state suggested that the jury believe the witness based on logic and common sense, which is fully permissible. See State v. Fauci, 282 Conn. 23, 48, 917 A.2d 978 (2007). Thus, there was no reason to object.
The petitioner also cites three instances in which Connelly supposedly mischaracterized the physical evidence that linked the petitioner to the scene. In two of these instances, first trial counsel countered Connelly's remarks during the defense argument. Further, Connelly prefaced his remarks by stating that "if I do misstate the facts or my recollection differs from yours or Mr. [McWhirter's] differs from yours, it's not intentional, just that we probably remember things a little differently." (Exhibit 1f, 4/10/89 Tr., p. 8.) McWhirter repeated a similar admonition. (Exhibit 1f, 4/10/89 Tr., pp. 52-53.) The trial court later instructed the jurors that the "arguments and statements by lawyers" were not facts. The court added: "if the facts as you remember them differ from the way the lawyers have stated them or in the way I state them, your memory controls." (Exhibit 1f, 4/10/89 Tr., p. 79.)
In response to Connelly's argument that the petitioner left blood on an ironing board when he left the victim's apartment on December 13, 1987, McWhirter argued: "Beryl Novitch testified . . . that that blood spot on the ironing board could have been laid there at any time. There is no way of testing to know how long or how old that blood spot is." (Exhibit 1f, 4/10/89 Tr., p. 54.) In response to Connelly's statement that the petitioner had removed blood from his sneakers, McWhirter pointed to Novitch's testimony that "there was no blood on the sneakers that were given to her, none that she could find at all, although there was another stain which apparently didn't wash out." Id.
Under these circumstances, it was reasonable for trial counsel to refrain from objecting. As the United States Supreme Court has recognized, "interruptions of arguments, either by an opposing counsel or the presiding judge, are matters to be approached cautiously." United States v. Young, 470 U.S. 1, 13 (1985). The prosecutor's remarks, even if inaccurate, were not inflammatory. Trial counsel could reasonably have concluded that it was better to respond during his own summation, or rely on the repeated admonition that the jury should resort to its own recollection, than to risk alienating the jury with objections concerning disputed factual matters. For these reasons, there was no deficient performance by trial counsel.
In view of this conclusion, it is unnecessary to belabor or even address the prejudice prong. See Lacks v. Commissioner of Correction, supra, 87 Conn.App. 231. It should suffice to observe that it is speculation to suggest that the outcome of the guilt phase would likely have been different if trial counsel had made contemporaneous objections on these points during closing argument.
There was similarly no deficient performance by appellate counsel in not raising the issue on appeal. For the reasons stated, the issue was weak. Appellate counsel ultimately raised thirteen issues, many of which went to the essence of the state's capital punishment scheme. State v. Breton, supra, 264 Conn. 336-38. Adding a less compelling issue to this list would have been contrary to the accepted practice 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, supra, 100 Conn.App. 11. Accordingly, appellate counsel did not render ineffective assistance.
CLAIM ONE, COUNT XIII — EVIDENTIARY OBJECTIONS (paras. 197-203)
The petitioner next argues that first trial counsel rendered ineffective assistance of counsel at the guilt phase by failing to make and preserve an objection that testimony by Loretta Breny, JoAnn Breton's mother, to the effect that the petitioner had "bothered" JoAnn prior to the crime constituted prejudicial hearsay and propensity evidence. The matter initially arose during cross-examination of Breny by McWhirter, as follows:
Q: "Isn't it a fact that you tried and called [JoAnn Breton] on Sunday [December 13, 1987] as well?"
A: "On Sunday and the line was busy."
Q: "When you called on Sunday, all you got was a busy signal?"
A: "Yeah, we are used to that because she used to take the receiver off because they were bothering her."
Q: "Okay. Now, just a minute. You indicated that on Sunday you tried to call your daughter?"
A: "Yeah." (Emphasis added.) (Exhibit 1f, 4/4/89 Tr., p. 14.)
On redirect examination by the state, the following occurred:
Q: "In response to Mr. McWhirter's questions, said she was being bothered; is that correct?'
Mr. McWhirter: "Your Honor, that wasn't in response to a question."
The Witness: "I beg your pardon?"
The Court: "Overruled, there was no motion to strike. May answer."
Q: [by the prosecutor]: "Read the question back, your Honor."
(Whereupon the court reporter read back last question.)
A: [by Breny]: "That's right."
Q: "Did she tell you who was bothering her?"
A: "Her husband — her ex-husband."
Q: "That's the defendant in this case?"
A: "That's right."
There was no recross. (Exhibit 1f, 4/4/89 Tr., pp. 14-15.) During closing argument, the state several times referred to the fact that the defendant had been "bothering" his ex-wife just prior to her death. (Exhibit 1f, 4/10/89 Tr., pp. 32-33, 47.)
As a general matter, "[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). Similarly in this case, first trial counsel's actions fell within the realm of reasonable trial tactics. McWhirter's question — "When you called on Sunday, all you got was a busy signal?" — did not solicit any hearsay evidence or any information about the petitioner's past behavior towards the victim. Breny's response was purely volunteered. Further, her answer — "they were bothering her" — did not necessarily point to or single out the petitioner. On redirect — when the state asked Breny whether "[i]n response to Mr. McWhirter's questions [you] said she was being bothered; is that correct?" — McWhirter's interjection that the witness's answer "wasn't in response to a question" was entirely correct. The trial court appropriately construed McWhirter's remark as an objection, but overruled it. Although McWhirter did not move to strike the subsequent colloquy, in which the state elicited that it was the petitioner who had bothered the victim, at that point McWhirter could reasonably have concluded that it might behoove the petitioner to let the matter go, rather than draw further attention to it by making a motion.
On the whole, first trial counsel's performance on this matter was not deficient. That being the case, the petitioner's claim of ineffective assistance must fail. See Lacks v. Commissioner of Correction, supra, 87 Conn.App. 231. It should suffice to add that the petitioner bears the burden of proving prejudice and has not done so. Although the state did remind the jury of the evidence in question during closing, the state during summation put most of its emphasis on what it had taken five days to present: blood and footprint evidence in the victim's house linked to the petitioner and eyewitness evidence of the petitioner leaving the scene. (Exhibit 1f, 4/10/89 Tr., pp. 23-45.) This evidence left little doubt as to the petitioner's guilt. The petitioner has not proven that, if trial counsel had objected and moved to strike the statements in question, there is a reasonable probability of a different verdict.
CLAIM ONE, COUNT XIV — PSYCHIATRIC RECORDS (paras. 204-07) CT Page 18615
In count XIV of his ineffective assistance of counsel claim, the petitioner alleges that first trial counsel were ineffective in not obtaining the full medical records of the petitioner's treatment in 1986 with Suk Chang, a psychiatrist, shortly after the petitioner divorced his ex-wife and fifteen months before the murders. Trial counsel did, however, obtain a one page letter in 1987 from Chang, who explained that he had first seen the petitioner on July 28, 1986, that he put the petitioner on anti-depressant medication until the petitioner dropped out of treatment on September 2, 1986, and that he diagnosed the petitioner with chronic depression. (Exhibit T.)
The petitioner did not establish during the habeas trial that there was anything else of significance to obtain. Further, during the second penalty phase, both Borden and Phillips testified that the petitioner's borderline or mixed personality disorder had depressive features, thus overlapping with Chang's diagnosis. (Exhibit 3a, 4/16/97 Tr., p. 11; Exhibit 3b, 4/17/97 Tr., pp. 157-59.) Thus, the petitioner did not prove that there was any deficient performance or that anything that trial counsel should have done with regard to Chang's records was reasonably likely to change the outcome of the trial. Accordingly, this count of ineffective assistance cannot succeed.
CLAIM ONE, COUNT XVI — CUMULATIVE EFFECT (para. 210)
In the final count of claim One, the petitioner claims that the cumulative effect of the deficient performance by trial counsel alleged in the various counts of claim One caused such prejudice as to deprive him of the effective assistance of counsel. The petitioner's brief in opposition to the motion to dismiss properly concedes that the Connecticut appellate courts do not recognize an ineffective assistance of counsel claim based on the cumulative effect of deficient performances. See, e.g., Diaz v. Commissioner of Correction, 125 Conn.App. 57, 72, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011). The court, of course, is bound by this case law. Therefore, the court declines to grant habeas corpus relief on the ground of ineffective assistance of counsel.
CLAIM TWO — BRADY v. MARYLAND (paras. 211-24)
In claim Two, the petitioner alleges that the state violated the rule of Brady v. Maryland, 373 U.S. 83 (1963), by suppressing the 1996 transcripts, thereby prejudicing the petitioner's right to a fair trial. The petitioner raised this claim on direct appeal, but then withdrew it because the trial record did not contain expert testimony about the transcripts. State v. Breton, supra, 264 Conn. 355 n. 20.
To establish a Brady violation, the petitioner must show that "(1) the government suppressed evidence, (2) the evidence was favorable to the defendant, and (3) it was material [either to guilt or punishment]." (Internal quotation marks omitted.) State v. Wilcox, 254 Conn. 441, 452, 758 A.2d 824 (2000); State v. Breton, supra, 264 Conn. 355 n. 20. With regard to the first element, the transcripts were not suppressed, at least at the outset of the trial. Although the petitioner in pretrial discovery made general requests for his prior criminal record, prior statements to law enforcement officers, evidence relating to mental health defenses and mitigating factors, and exculpatory evidence, it is not readily apparent that the 1966 transcripts fit within any of these categories. (Exhibits 11, 13.) In particular, the interpretation of the petitioner's statements during the 1966 interviews as revealing dissociative episodes that would support a defense or mitigating factor based on borderline personality disorder, extreme emotional disturbance, or legal insanity is hardly obvious and simply not something that the state could reasonably have divined. While an open file policy does not always satisfy Brady obligations; State v. Wilcox, supra, 453 n. 19; in this case, in the absence of a more specific request from trial counsel, the fact, as discussed earlier in this opinion, that the state made these transcripts fully available to trial counsel for their inspection prior to trial put the responsibility to pull them from the file on trial counsel rather than the state. As the court has already concluded, the reason for the nondisclosure of the transcripts prior to trial was deficient performance by first trial counsel. It was not suppression by the state.
In addition, the request made during discovery for statements by the petitioner to law enforcement would reasonably have been construed as referring to statements about the 1987 homicides, and not about a homicide that occurred over twenty years previously.
The petitioner makes a more credible argument that the state had a duty to disclose the transcripts once Borden testified during the first penalty phase that the petitioner's act of killing his father in 1966 contributed to his mental state at the time of the offense. (Petition, paras. 218-19.) At that point, the state arguably should have discovered the petitioner's unusual theory that his prior homicide — which would ordinarily represent evidence that is aggravating in nature — was actually of a mitigating nature in this case.
However, even assuming that the petitioner could prove both suppression and that the evidence was favorable to his case, the petitioner did not establish materiality. "[U]ndisclosed exculpatory evidence is material, and . . . constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Id., 453-54 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). This "reasonable probability" standard is essentially the same as the prejudice component under Strickland. See Wilson v. Commissioner of Correction, 104 Conn.App. 224, 232, 932 A.2d 481 (2007) (labeling the third element of Brady as "prejudice.") The court has already decided, for purposes of the ineffective assistance of counsel claim, that the late disclosure of the 1966 transcripts did not create a reasonable probability that the outcome of the criminal trial would be different. Given that the Brady standard is virtually identical, the petitioner also cannot prevail under Brady.
CLAIM FOUR: THE CAPITAL PUNISHMENT STATUTES (paras. 232-37)
In claim Four, the petitioner renews his challenge, shorn of allegations of ineffective assistance allegations, to the constitutionality of Connecticut's capital punishment statutes. He again raises the ground that the statutes screen out inherently mitigating evidence such as the petitioner's favorable prison record. In its return, the respondent alleges procedural default because the petitioner did not raise this claim on direct appeal. See Henderson v. Commissioner of Correction, 104 Conn.App. 557, 568-70, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008). (Return para. 237B.) The petitioner's reply alleges that there was cause, either because there was ineffective assistance of counsel or because the basis for the claim was not reasonably available to counsel, as well as prejudice. The court, however, has already found that there was no ineffective assistance on this claim. Further, the petitioner does not demonstrate, and there is no basis to find, that the claim was not available at the time of the direct appeal. Accordingly, the claim is barred by the petitioner's procedural default. In the alternative, the court, for the reasons discussed earlier, concludes that, on the merits, the petitioner's constitutional challenge to the capital punishment statutes does not withstand scrutiny.
The court again assumes, for purposes of this claim, that the claim is different from the one raised on direct appeal. See State v. Breton, supra, 264 Conn. 414-15. If it is not different, then the Supreme Court's decision is res judicata and binding on this court. See note 22 supra.
CLAIM FIVE — PETITIONER'S MENTAL ILLNESS RENDERS HIM INELIGIBLE FOR THE DEATH PENALTY (paras. 238-44)
The petitioner next alleges that his mental illness renders him ineligible for the death penalty. In Panetti v. Quarterman, 551 U.S. 930 (2007), the Supreme Court reiterated that "the Eighth Amendment prohibits states from carrying out a sentence of death upon a prisoner who is insane." Id., 934 (quoting Ford v. Wainwright, 477 U.S. 399, 409-10 (1986)). The Court did not set down a standard for insanity or competency, but held that the district court should have considered the submission that the petitioner "suffers from a severe, documented mental illness that is the source of gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced." Panetti v. Quarterman, supra, 960-61. The Court has also held that the Eighth Amendment prohibits the execution of mentally retarded offenders. Atkins v. Virginia, 536 U.S. 304 (2002).
In the present case, the petitioner presented expert testimony that he has chronic PTSD, but no evidence that he was insane or did not comprehend the meaning and purpose of the death penalty. The evidence also established that the petitioner is of average intelligence and not mentally retarded. Accordingly, the petitioner does not currently have an impairment that renders him ineligible for the death penalty.
The petitioner cites to various international human rights documents to support his claim. While the court is, of course, bound by any Supreme Court decision citing or relying on international law, the cited international norms do not create enforceable rights in American courts. See Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) (International Covenant on Civil and Political Rights); Garza v. Lappin, 253 F.3d 918, 924 (7th Cir. 2001) (American Declaration of the Rights and Duties of Man). Moreover, "the United States is not party to any treaty that prohibits capital punishment per se, and . . . total abolishment of capital punishment has not yet risen to the level of customary international law." United States v. Bin Laden, 126 F.Sup.2d 290, 294 (S.D.N.Y. 2001).
CLAIM SIX — LEGAL INNOCENCE (paras. 245-49)
In claim Six, the petitioner alleges that newly discovered evidence proves that he is "legally innocent" both of the offense of capital felony and of the aggravating factor necessary for the death penalty. The newly discovered evidence is the petitioner's PTSD. The petitioner contends that he is legally innocent of capital felony because the diagnosis of PTSD establishes that the petitioner was unable to form the specific intent to commit the underlying murders. The petitioner asserts that he is legally innocent of the death penalty because his PTSD made him unable to form the specific intent to inflict extreme pain or torture required for a finding of the "especially cruel" aggravating factor, which was the sole aggravating factor alleged and proven in the penalty phase.
Connecticut, however, does not recognize a free-standing cause of action in habeas for "legal innocence." As our Supreme Court recently stated in Gould v. Commissioner of Correction, 301 Conn. 544 (2011), "[a]ctual innocence, also referred to as factual innocence . . . is different than legal innocence. Actual innocence is not demonstrated by merely showing that there was insufficient evidence to prove guilt beyond a reasonable doubt." (Citation omitted.) Id., 560-61. "[A]ctual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime." Id., 561. "Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime occurred." (Emphasis in original.) Id., 563.
Even interpreting the petitioner's claim as one for actual innocence, he cannot meet the standard of proof. "[T]he proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Sargent v. Commissioner of Correction, 121 Conn.App. 725, 734, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010). In addition, under binding Appellate Court case law, "[a] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . 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.) Id., 734-35.
Presumably, the petitioner uses the title "legal innocence" because his arguments seek to prove not that he did not commit the homicidal acts but rather that he did not form the requisite intent at the time. In that sense, the petitioner's claim is more of a "legal" defense.
The court will presume that the evidence of PTSD is newly discovered, particularly because, even after review of the 1966 transcripts, Borden never diagnosed the petitioner as having PTSD or even suggested that diagnosis. But the petitioner has not met the standard of proof on the other components of the test for actual innocence. With regard to the guilt phase, even the petitioner's expert evidence did not establish that PTSD can or did negate the specific intent required for proof of the underlying murders in this case. Thus, the court cannot say by clear and convincing evidence that no murders occurred. Gould v. Commissioner of Correction, supra, 301 Conn. 563. Similarly, because there is no convincing evidence that PTSD can or did negate specific intent, the court cannot conclude that the evidence of the petitioner's PTSD negated the specific intent required for proof of the aggravating factor of a murder that was especially cruel. Therefore, the court rejects the petitioner's claim of legal or actual innocence.
CLAIM SEVEN — STANDARDS FOR SEEKING THE DEATH PENALTY (paras. 250-69)
The petitioner's penultimate claim is that the absence of legislative or regulatory standards governing a local state's attorney's decision to seek the death penalty violates the petitioner's rights to due process and equal protection of the law. The petitioner's claim presents a valid argument for reform. The federal system, for example, includes standards requiring United States Attorneys to obtain approval of the Attorney General before seeking the death penalty so as to minimize interdistrict disparities and promote consistency and fairness in this critical area. See Part I.B., "The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review," U.S. Department of Justice (2001), available at www.justice.gov/dag/ pubdoc/deathpenaltystudy.htm#deathpenaltylaw (last visited August 9, 2011). But that reform is a matter for the legislature or the executive branch. There is no reason for judicial intervention on this issue in the petitioner's case.
To begin with, the United States Supreme Court's recent decisions regarding its eighth amendment jurisprudence have identified "a constitutionally permissible range of discretion in imposing the death penalty." State v. Ross, supra, 230 Conn. 235. Accordingly, the state courts have uniformly rejected the notion that a prosecutor's discretion to select those eligible cases and seek the death penalty offends the federal constitution. See, e.g., People v. Verdugo, 50 Cal. 4th 263, 305, 236 P.23d 1035, 113 Cal.Rptr.3d 803 (2010); State v. Smith, 203 Ariz. 75, 81, 50 P.3d 825 (2002).
At the same time, our Supreme Court has rejected the argument that our capital punishment scheme is completely discretionary and without standards. In State v. Ross, supra, the Court in 1994 described the system as a "three-tiered pyramid, in which each tier narrows the class of defendants that may be found eligible for the death penalty. At the first tier above the base of the pyramid, our statute separates capital felony homicides from other homicides, and authorizes bifurcated death penalty hearings only for those who have been found guilty of or have pleaded guilty to a capital felony . . . At the second tier, the statute further limits the death penalty by requiring the sentencer to find, beyond a reasonable doubt, the existence of at least one statutorily delineated aggravating factor . . . At the third and final tier, our statute separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed . . . by requiring a sentencer to find, by a preponderance of the evidence, whether a mitigating factor exists . . ."
"In their overall configuration, our death penalty statutes facially satisfy the constitutional requirements of the eighth and fourteenth amendments to the United States constitution. The multitiered pyramid meets the prerequisite of consistency and reliability by guiding the capital sentencer's discretion with clear and objective standards that narrow the class of defendants eligible for the death penalty and by providing a meaningful basis for distinguishing between those cases in which the death penalty is imposed and those in which it is not." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Id., 236-38.
Second, at the operative time in this case, our death penalty statutes included a mandatory proportionality review that would have addressed disparities among judicial districts. Under General Statutes (Rev. to 1995) § 53a-46b(b)(3), the state Supreme Court was required to review each death sentence to determine whether it was "excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant." The Supreme Court conducted an extensive such review in this case. State v. Breton, supra, 264 Conn. 418-46. It concluded: "the death sentence in this case is not excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant . . . There is nothing freakish, arbitrary, wanton or aberrational about the sentence in th[e] [present] case. There is no pattern or trend evident in similar cases with respect to which this sentence is inconsistent. This case is not an outlier." (Citation omitted; internal quotation marks omitted.) Id., 446.
Public Acts 1995, No. 95-15 eliminated proportionality review, but the Breton III Court determined that because the petitioner's crime took place before April 12, 1995, the date on which the repealing act became effective, the petitioner was entitled to proportionality review under the prior statute. State v. Breton, supra, 264 Conn. 420-22. With the elimination of proportionality review, the Supreme Court has identified the weighing of aggravating and mitigating factors as the "fourth tier" in the death penalty statutory pyramid. Rizzo I, supra, 266 Conn. 230-31.
Lastly, on direct appeal in this case, the petitioner argued that he was entitled to a hearing on whether racial disparities in the administration of the death penalty in Connecticut violated his constitutional rights. The Supreme Court held that this claim should be consolidated with similar claims in other death penalty cases and pursued in a separate habeas corpus proceeding. State v. Breton, supra, 264 Conn. 394-407. This case remains pending. Thus, the petitioner still has a remedy to address any racial disparities created by the decisions of state's attorneys to seek the death penalty in this state. See notes 1, 2 supra. Accordingly, there is no basis at this time for concluding that the existence of some prosecutorial discretion in seeking the death penalty renders the capital punishment statute or the death penalty in this case unconstitutional.
CLAIM EIGHT — CUMULATIVE ERROR (paras. 270-71)
Finally, the petitioner renews his contention that the cumulative impact of all his claims together renders his conviction and death sentence unconstitutional and invalid. As stated earlier, our state appellate courts have held that the cumulative effect of various alleged errors does not warrant relief, either on direct appeal or in habeas proceedings. See State v. Billie, 123 Conn.App. 690, 706, 2 A.3d 1034 (2010); Anderson v. Commissioner of Correction, 114 Conn. App. 778, 795-96, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009). Therefore, even if the court had found nonreversible error in more than one area, the court would be bound by our appellate courts to hold that the cumulative effect of this error does not warrant reversal of the verdict and sentence in this case.
DEFENSE OF LACHES
The respondent raises the defense of laches based on the unreasonable delay in bringing this habeas case to trial. The defense of laches consists of two elements: "First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . The burden is on the party alleging laches to establish that defense." (Internal quotation marks omitted.) Caminis v. Troy, 112 Conn.App. 546, 552, 963 A.2d 701 (2009), aff'd on other grounds, 300 Conn. 297, 12 A.3d 984 (2011).
The defense of latches appears to apply in state habeas cases. See Dickinson v. Mullaney, 284 Conn. 673, 679, 937 A.2d 667 (2007). Such an application makes sense. "[H]abeas corpus has traditionally been regarded as governed by equitable principles . . . Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks . . . Nothing in the traditions of habeas corpus requires courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay." (Internal quotation marks omitted; citation omitted.) Negron v. Warden, 180 Conn. 153, 166 n. 6, 429 A.2d 841 (1980).
As discussed, the eight-year history of this habeas petition is a long and unflattering one. Indeed, the petitioner has never pressed for trial of this case. Of course, the petitioner in a case of this nature has a powerful incentive to delay. To the extent that the petitioner seeks to avoid or invalidate the death penalty, this case is unlike most habeas cases, because here the petitioner in effect accomplishes his objective by delaying the case.
But there are no parties without fault. The court, while never issuing any formal stay of this case, apparently did nothing to move it along between February 2007 and November 2010, when all parties apparently assumed that the racial disparity case would go to trial first. See note 2 supra. And the record for these two and one-half years is devoid of any attempt by the respondent to advance this case toward trial.
The respondent thus cannot prove that this case is one in which the petitioner's delay is inexcusable, since the respondent itself must share some of the blame. It is hence unnecessary to examine the second element of prejudice. In any case, there is no specific assertion of prejudice from the respondent. Accordingly, the court denies the defense of laches.
It nonetheless should not go without mention that the eight-year delay from the filing of the habeas petition to the time of this habeas trial, especially when coupled with the fourteen-year period between the commencement of the criminal trial and the final affirmance of the conviction and sentence, conflicts with all notions of sound judicial policy. The delayed commencement and lethargic movement of this case is contrary to society's "need for finality of convictions"; Young v. Commissioner of Correction, 104 Conn.App. 188, 192, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008) (internal quotation marks omitted); and to society's concern for avoiding the injustice of incarcerating an innocent person. The delay is also contrary to the statute governing habeas matters, which provides that the "court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts or issues of the case . . ." General Statutes § 52-470(a). Finally, the delay hurts the ability of both parties to present witnesses who can honestly recall events at the time of the crime or the trial, and concomitantly makes it more difficult for the court to discern the true facts of the case.
CONCLUSION
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.