Opinion
No. CV 05 4000740 S
June 5, 2009
MEMORANDUM OF DECISION RE RESPONDENT'S MOTION FOR SUMMARY JUDGMENT NO. 110
The petitioner, Geno Bryant, filed a petition for a writ of habeas corpus on October 11, 2005, challenging the legality of his detention. The respondent filed a return on January 11, 2006, denying the material allegations of the petition and asserting the special defense of procedural default. The respondent then filed the present motion for summary judgment on November 12, 2008; the petitioner filed an objection to the motion on December 11, 2008, adding a memorandum of law later, and the respondent filed a reply memorandum on March 25, 2009. The court heard oral argument on the motion on May 13, 2009.
The petitioner purports to have commenced this action in reliance on the accidental failure of suit statute, General Statutes § 52-592(a), due to his prior habeas petition, Docket No. CV00 0445599, having been dismissed. Dismissal of a habeas petition is not the equivalent of a nonsuit for failure to prosecute, and the reliance on the accidental failure of suit statute is misplaced. There is, however, no bar to the petitioner simply filing a second habeas petition since the previous petition was never adjudicated on the merits; therefore, this court will treat the present petition as such.
The following facts are not in dispute. The petitioner was convicted, after a jury trial in Docket No. CR 96 0441180, of being an accessory to murder in violation of General Statutes §§ 53a-54a and 53a-8, being an accessory to assault in the first degree in violation of General Statues §§ 53a-59(a)(1) and 53a-8, and conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48. On March 26, 1999, he was sentenced to thirty years incarceration on the murder charge, ten years incarceration on the assault charge, and ten years incarceration on the conspiracy to commit murder charge, all to be served concurrently, for a total effective sentence of thirty years incarceration. He appealed his convictions, which were all upheld. See State v. Bryant, 61 Conn.App. 565, 767 A.2d 166 (2001).
The petitioner was also convicted of tampering with a witness in violation of General Statutes § 53a-151(a) and bribery of a witness in violation of General Statutes § 53a-149, arising out of an attempt to thwart the criminal proceedings initiated by the murder and assault charges. He was also sentenced to three years incarceration on each, to be served concurrently with each other but consecutively to his other convictions. Thus, his total effective sentence was actually thirty-three years incarceration.
The petitioner's co-defendant on the murder, assault and conspiracy charges was Danny Beverly, who was tried separately and subsequently to the petitioner in Docket No. CR 96 0440969. Beverly was convicted of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, assault in the first degree in violation of § 53a-59(a)(1), and possession of a pistol without a permit in violation of General Statutes § 29-35(a). His convictions were also affirmed on appeal. See State v. Beverly, 72 Conn.App. 91, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002).
The court takes judicial notice of the following underlying facts, taken from the Appellate Court's decision in the petitioner's appeal, that could reasonably have been found by the jury in the petitioner's criminal case. "On November 26, 1996, at approximately 1 p.m., Tyrell Blackwell, Sterling Cole and Roosevelt Green were conversing outside Willie Wilson's house at 154 Rosette Street in New Haven. Soon thereafter, Keith Bryant, who is not related to the defendant, arrived and spoke with Green, a friend of Bryant. While Bryant and Green were talking, the defendant approached, driving a navy blue Buick Park Avenue automobile. He was accompanied by Beverly, who was seated in the back on the driver's side. The defendant stopped the Buick outside Wilson's house.
"Cole approached the Buick and saw that the defendant was the driver and that Beverly was in the backseat. The defendant, who was known by witnesses as `Jizzy Vance,' told Cole that he had been planning to kill somebody, but had recently reconsidered. Keith Bryant, who was still talking to Green, heard the defendant or Beverly say, `Hurry up, hurry up, what you gonna do?'
"Immediately thereafter, Beverly exited the Buick, walked toward Green and fired three or four gunshots at him. Keith Bryant saw Beverly retrieve some of the spent shells and get back into the Buick. The Buick, which was still being operated by the defendant, then sped away.
"One of the gunshots struck Blackwell, killing him. Another struck Green, the intended victim, causing a catastrophic injury to one of his hands. At the scene, Green stated that he had been shot by Jizzy Vance (the defendant) and Danny Beverly." State v. Bryant, supra, 61 Conn.App. 567-68.
DISCUSSION
Practice Book § 23-37 provides: "At any time after the pleadings are closed, any party may move for summary judgment, which shall be tendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law." "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
The respondent moves for summary judgment on the grounds that (1) the petitioner's claims could and should have been raised on direct appeal and, therefore, he is procedurally defaulted from raising them in the present petition, (2) the petitioner's claim that his verdict was inconsistent with that reached for another defendant fails as a matter of law because it is not inconsistent for the principal to have been convicted of a lesser crime than the accessory, and (3) that it is not cruel and unusual punishment for an accessory to be convicted of a more serious crime than the principal for the same conduct. The petitioner objects on the ground that there is a genuine issue of material fact in dispute, and argues that the inability to call Beverly as a witness at the petitioner's trial was a "legal impossibility" that led to inconsistent verdicts, thus violating the petitioner's due process rights.
The respondent posits that there are no disputed issues of material fact, and this court agrees. The pleadings thus far coupled with the published decision in the petitioner's appeal sufficiently demonstrate the nonexistence of any material factual dispute, and the respondent has met its burden in this regard. See Zielinski v. Kotsoris, supra, 279 Conn. 318. Despite the petitioner's assertion that a disputed issue of material fact exists, he has not specified what facts are disputed or how they would be material to the legal issues presented. "Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court." Id., 318-19. Therefore, the court will proceed to the legal merits of the motion.
The respondent's first stated ground for the motion for summary judgment is that the petitioner is procedurally defaulted from raising his claims because he did not raise them first at the Appellate Court. This argument, however, was not briefed; moreover, it is not clear from the evidence before the court that the petitioner could have raised these claims on appeal. The Appellate Court opinion in the petitioner's direct appeal indicates that the case was argued on September 28, 2000, but there is no indication, beyond the respondent's assertion in the return and brief, of when Beverly was convicted or sentenced, on which the petitioner's ability to raise his present claims was contingent. While the petitioner does not contest these dates, the respondent has not met its burden of showing that it is "quite clear what the truth is" with regard to the petitioner's ability to have raised his current claims on appeal and, therefore, this court is unable to address this issue at this time.
General Statutes § 53a-9 provides in relevant part: "In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person under section 53a-8 it shall not be a defense that: (1) Such other person is not guilty of the offense in question because of lack of criminal responsibility or legal capacity or awareness of the criminal nature of the conduct in question or of the defendant's criminal purpose or because of other factors precluding the mental state required for the commission of the offense in question; or (2) such other person has not been prosecuted for or convicted of any offense based upon the conduct in question, or has been acquitted thereof . . ." (Emphasis added.) An obvious instance in which § 53a-9 would apply would be where A, with the intent to kill B, induces C, who lacks the mental capacity to form the specific intent to commit murder, to perform the act. Just such a situation arose in State v. McCarthy, 179 Conn. 1, 425 A.2d 924 (1979) in which the defendant hired a third party to kill the victim, providing her with a gun and driving her to the victim's location, then leaving. The enlisted party was under the influence of LSD and/or cocaine at the time, thus rendering her incapable of forming the specific intent required for murder. The court, applying § 53a-9, held that the trial court was correct in instructing that the principal's mental state was irrelevant; the relevant mental state of an accessory to a crime is that of the accessory. Id., 14-16. The court reasoned that requisite intent need not "reside in the person who does the forbidden act. Indeed, the latter may act without any criminal intent whatever, while the mens rea — `willfulness' — may reside in a person wholly incapable of committing the forbidden act." (Internal quotation marks omitted.) Id., 16. Cf. State v. Colon, 257 Conn. 587, 778 A.2d 875 (2001) (acquittal of codefendant on conspiracy charge does not preclude defendant from being convicted of conspiracy); State v. Santiago, 275 Conn. 192, 881 A.2d 222 (2005) (defendant can be convicted of substantive offense codefendant committed under Pinkerton doctrine despite codefendant's prior acquittal of substantive offense).
In the present case, the jury found that the petitioner, with the intent to kill the victim, aided another person who did kill the victim. That the actual shooter was acquitted of murder is of no consequence to the petitioner's verdict. Beverly's conviction of manslaughter in the first degree with a firearm indicates that the jury found one of three things to be true: by use of a firearm, Beverly caused the death of the victim while either (1) intending to cause him serious physical injury, (2) intending to kill the victim while under the influence of extreme emotional disturbance, or (3) causing the death of the victim while recklessly engaging in conduct creating a grave risk of death to the victim. General Statutes §§ 53a-55 and 53a-55a. Thus, this is not a circumstance where the court found that no person committed the underlying crime as a principal; the principal in this case simply lacked the requisite mental state for murder. Cf. State v. Garner, 270 Conn. 458, 480-81, 853 A.2d 478 (2004) (outlining difference between finding that principal did not commit crime versus that no crime had been committed; the latter precludes accessorial liability, the former does not). There is, therefore, no inherent contradiction between the verdicts in Beverly's and the petitioner's case; the jury in the petitioner's case merely needed to find that the petitioner intentionally aided another person in the killing of the two victims. The actual shooter's mental state is irrelevant to the petitioner's guilt or innocence.
In an attempt to distinguish his case from those cited above, the petitioner argues that the two verdicts are inconsistent in that "the jury found Beverly to have fired in self-defense, thereby reducing Beverly's conviction from murder to manslaughter." The only inconsistency, however, is in the petitioner's own argument: had Beverly indeed been found to be acting in self-defense, he would have been acquitted entirely of the shooting, rather than found guilty of the lesser offense of manslaughter in the first degree with a firearm.
The principle is put succinctly in State v. Paredes, 35 Conn.App. 360, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994): "[T]he defendant's culpability [as an accessory] does not hinge on whether anyone else is proven liable as a principal in the crime charged. To be convicted of the substantive offense under the alternate means of accessorial liability, the defendant must have, `acting with the mental state required for commission of an offense intentionally aid[ed] another person to engage in conduct which constitutes an offense . . .' General Statutes § 53a-8. The statute contains no prerequisite that the state prove that a principal committed the crime. This state long ago adopted the rule that there is no practical significance in being labeled an `accessory' or a `principal' for the purpose of determining criminal responsibility. In fact, pursuant to General Statutes § 53a-9, it is not a defense to accessorial liability that the alleged principal in a crime has been acquitted. Thus, whether [another person] could be found guilty of the crime charged has no bearing on whether the defendant is liable for the same substantive offense." (Citations omitted; internal quotation marks omitted.) Id., 370-71. Thus, there is no contradiction in the defendant's conviction of murder and his coconspirator's conviction of manslaughter in the first degree with a firearm, and no violation of the petitioner's due process rights.
The petitioner also argued, in his brief, that the "legal impossibility" constituting the inconsistent verdicts was the inability to call Beverly as a witness at his own trial. Aside from the fact that this claim is highly speculative, there is no allegation of this in the petition and his trial counsel's effectiveness was not challenged.
The petitioner has also alleged that his conviction and sentence for murder violate the cruel and unusual punishment prohibitions embodied by the eighth amendment to the United States constitution. The petitioner did not, however, argue in support of this claim in his memorandum in opposition to the motion for summary judgment or at oral argument, beyond the bald claim that his rights were violated. To the extent that he can be said to have pursued this claim, this court sees no basis, factually or legally, that would support it. "Cruel and unusual punishment refers to punishment that involves the unnecessary and wanton infliction of pain or is grossly disproportionate to the severity of the crime." (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 75 Conn.App. 133, 136, 815 A.2d 208 (2003). The petitioner does not attack the conditions of his confinement, and his sentence of thirty years, when the minimum sentence available for his crime was twenty-five years; General Statutes §§ 53a-54a(c), 53a-35a(2); is in no way "grossly disproportionate" to the crime. Cf. State v. Hernandez, 204 Conn. 377, 387-88, 528 A.2d 794 (1987) (sentence of 60 years for felony murder not disproportionate). His codefendant's sentence has no bearing on the determination, at least for eighth amendment purposes, of whether his sentence is grossly disproportionate to his crime. Moreover, even if it were, it is worth recognizing in this regard that Beverly received a total effective sentence of fifty years, forty of which were for the manslaughter conviction, despite being acquitted of murder and conspiracy to commit murder. See State v. Beverly, supra, 72 Conn.App. 91. There is no merit to the petitioner's eighth amendment claim.
CONCLUSION
There are no disputed issues of material fact and the respondent is entitled to judgment as a matter of law. Therefore, the respondent's motion for summary judgment is granted. Should the petitioner wish to appeal, he shall prepare a judgment file within thirty days.