Opinion
No. 552425
June 23, 2005
MEMORANDUM OF DECISION
By her petition filed September 22, 1999, and her amended petition filed April 15, 2005, petitioner seeks a writ of habeas corpus. For reasons hereinafter stated, the petition is denied.
Petitioner was charged with the crimes of murder and conspiracy to commit murder. After trial by jury, petitioner was convicted of conspiracy to commit murder in violation of Connecticut General Statutes §§ 53a-48 and 53a-54a. As a consequence of such conviction petitioner was committed to the custody of the Commissioner of Correction for a period of twenty (20) years. She is now in the custody of respondent serving this sentence.
Petitioner appealed this conviction. The Appellate Court upheld the conviction by decision released June 22, 1999. State v. Gonda, 53 Conn.App. 842 (1999).
In its decision, the Appellate Court set forth certain facts which the jury could have reasonably found. Such facts are summarized as follows: The defendant, who was 49 years of age at the time of the murder, had been a friend of the victim, who was in his late 60s, for many years. The two resided in the victim's condominium in Bridgeport. The defendant was named in the victim's will as a beneficiary of his estate; specifically, she was to inherit the condominium.
Petitioner and her adult son, Peter, were constantly in need of money. Her son was unemployed and petitioner worked as a part-time waitress. Some time prior to the murder, Peter had taken the victim's credit cards and incurred debt with them for which he was arrested. Although the victim helped Peter with respect to the arrest, the victim no longer wanted to be associated with him.
Prior to March 27, 1966, Peter's landlord and James Pavilscak overheard petitioner and Peter discussing plans to kill the victim by poisoning his food and recruiting teenagers to kill the victim. Peter and petitioner also asked Pavliscak to break into the condominium and kill the victim. Peter and petitioner offered to pay for these services.
On the day before the murder, petitioner asked Pavliscak if he would enter her condominium late at night and kill the victim. She gave Pavliscak a key to the condominium. Petitioner and Peter told Pavliscak they would call him at 2:00 or 3:00 a.m. Pavliscak went home and went to bed. The next day there were seven pager calls on his beeper from petitioner's condominium.
On March 27, 1996, Peter telephoned Pavliscak and asked why he had not come to the condominium the night before. Pavliscak told Peter that he did not want to kill the victim. Peter made an arrangement with Pavliscak for the return of the key that afternoon. When Pavliscak drove to the arranged meeting place for the return of the key, both petitioner and Peter got into his automobile. Pavliscak gave the key back. Petitioner and Peter then asked him to drive them to downtown Bridgeport so they could look for someone. In the meantime, petitioner purchased beer for both Pavliscak and Peter. Pavliscak eventually drove the pair to an apartment complex, which Peter entered. He returned to the vehicle with Edward Garrett. Pavliscak then drove the three of them to the victim's condominium.
When they arrived at the condominium, petitioner entered the building while the men remained outside where they drank beer and smoked marijuana. Petitioner then came back outside and told Pavliscak to use the bathroom inside the building. Petitioner, Peter, Garrett and Pavliscak then went into the condominium. The victim was present when the group entered. Shortly thereafter, the victim and Peter began to argue and Peter hit the victim in the head with a beer bottle. Garrett attempted to hit the victim on the head with a beer bottle. The victim, bleeding profusely, fell back clutching his chest. Pavliscak swung at the victim. Petitioner put a belt around the victim's neck and pulled on it along with Peter, Garrett and Pavliscak. The victim died of a heart attack associated with the assault.
As Pavliscak and Garrett left the condominium, Peter told them not to tell anyone what had happened. Pavliscak then went to work at his supermarket job. Petitioner and Peter entered the supermarket later that day to purchase a cleaning product. They asked Pavliscak to let them borrow his automobile, but he refused. Peter threatened to kill Pavliscak and his mother if he told anyone of the murder.
Subsequently, Pavliscak and Garrett went to the condominium at petitioner's request. They assisted her and Peter in removing the body to a nearby field. Petitioner, Peter and Garrett then disposed of bloody clothing and sheets. The carpeting and couch in the condominium which were covered with blood were also discarded.
Petitioner notified the police that the victim was missing. She gave statements to the police indicating that people had entered the condominium and killed the victim. She did admit that she assisted in removal of the body and pointed out the field in which the body could be found.
An autopsy revealed that the victim had died as a result of a heart attack associated with an assault. Id. 844-49.
On April 15, 1996, petitioner was arrested and charged in connection with the death of the victim. Petitioner was represented by Attorney David Abbamonte who defended her at her trial by jury.
The petition alleges that petitioner's incarceration is illegal because her conviction rests upon the deprivation of her constitutional rights due to the ineffective assistance rendered by Attorney Abbamonte.
As a defendant in a criminal proceeding, petitioner was "constitutionally entitled to adequate and effective assistance of counsel at all critical stages of the criminal proceeding. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). This right arises under the Sixth and Fourteenth Amendments to the United States Constitution and Article 1st § 8 of the Connecticut Constitution." Copas v. Commissioner of Correction, 234 Conn. 139, 153 (1995).
The general standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, supra, 466 U.S. 668. "In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice . . . thus, he must establish not only that his counsel's performance was deficient, but as a result thereof, he suffered actual prejudice, namely, that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome of the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome . . . Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 592 (1992)." Mercer v. Commissioner of Correction, 51 Conn.App. 638, 640-41 (1999).
"In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to (her) conviction as to have deprived him of a fair trial." Id.
Only if the petitioner succeeds in this herculean task will she receive a new trial. Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13 (2001).
Petitioner has set forth her claims of ineffective assistance of counsel in two separate counts. The first count alleges that her attorney was ineffective in that he failed to object to the state's attorney referring to "ingenuity of counsel" during his closing argument and during rebuttal. The second count alleges that the attorney failed to object to an improper jury instruction given by the judge or to ask for a curative instruction. It is also claimed that because of petitioner's attorney's failure to object to the argument of the state's attorney and the instruction given by the judge, the Appellate Court declined to review these unpreserved claims of error.
I.
The first count alleges that Attorney Abbamonte was ineffective because he failed to object to the state's referring to ingenuity of counsel during closing argument and that this failure caused the Appellate Court to refuse to review the unpreserved claims on appeal. On appeal, petitioner sought appellate review of portions of the state's closing argument. At the beginning of the argument, the state's attorney said:
What is reasonable doubt? Of course, His Honor is going to instruct you about this law later. But generally it's a doubt that is based upon reason and the evidence. It is not a doubt that is based on a guess or on sympathy or on the ingenuity of a witness or a lawyer. The state doesn't have to prove its case beyond a possible doubt, to an absolute certainty. We went through this during jury selection. The state only has to prove its case beyond a reasonable doubt that is based on the evidence.
During rebuttal, the prosecutor said:
If there were one word that we could boil everything that we do here down to, the word is reasonable. I mean first of all the state's burden of proof is, as you well know, is to prove the case beyond a reasonable doubt, which is not beyond all doubt, which is not beyond a doubt that is based on a guess or the ingenuity of an attorney, or on sympathy. It has to be a doubt that is based on reason and the evidence.
Attorney Abbamonte did not object to either of these arguments at trial. On appeal, petitioner sought review of her claim with respect to the state's argument under the provisions of State v. Golding, 213 Conn. 233, 239-40 (1989).
The Appellate Court declined to review the unpreserved claim of error. In declining to review this claim of error, the Appellate Court relied on State v. Hines, 243 Conn. 796, 817-18 (1999), where the Supreme Court, relying on State v. Taylor, 239 Conn. 481, 504 (1996), cert. den. 521 U.S. 1121, 117 S.Ct. 2515, 138 L.Ed.2d 1017 (1997), held that a jury instruction containing language similar to the "ingenuity of counsel" language in the state's final argument was not constitutional in nature and, therefore, not reviewable under Golding. The phrase "ingenuity of counsel" was formerly included in the standard judge's charge explaining reasonable doubt. In State v. Taylor, supra, 504, appellate counsel argued that this instruction reduced the state's burden of proof in violation of defendant's federal and state constitutional rights. In response, the Supreme Court stated, "We agree that the phrase `ingenuity of counsel,' taken in isolation, conceivably could misdirect the jury's attention, and we urge trial courts to avoid its further use. As the defendant concedes, however, we have upheld similar language on the ground that these phrases did not, when properly considered in a broader context of the trial court's instructions in their entirety, [dilute] the state's burden of proof or otherwise misle[ad] the jury in any way."
Appellate decisions concerning the use of the contested phrase have normally been concerned with jury instructions delivered by judges rather than arguments of counsel. As above noted, "ingenuity of counsel" was for many years included in the standard judge's charge explaining reasonable doubt. See § 674, p. 1050, Wright, Connecticut Jury Instructions 1975 Revision; § 2.9, p. 79, Borden Orland, Connecticut Criminal Jury Instructions, Second Edition 1997; § 2.8, p. 38 fn. 2, Connecticut Selected Jury Instructions Criminal, Revised to December 31, 2001.
In State v. Taylor, supra, the Supreme Court indicated reservations about the use of the contested phrase in jury instructions. In Taylor, however, the court did not find that the use of the phrase was error and the conviction was upheld. After Taylor, the "ingenuity of counsel" phrase was still being used in judges' instructions. Convictions were still being upheld with a determination that the language did not deprive a criminal defendant of his right to due process. State v. Edwards, 247 Conn. 318, 330 (1998).
The use of the contested phrase in a jury charge again came before the court in State v. Delvalle, 250 Conn. 466, 475 (1999), where the court upheld a conviction stating that it had repeatedly upheld similar language where it was found that in the broader context of the court's instructions, the jury was not misled. The court, however, then went on to invoke its supervisory authority over the administration of justice to direct the trial courts refrain from using "ingenuity of counsel" language in the future. Id. 475-76.
In State v. Lacks, 58 Conn.App. 412, 426-27 (2000), the contested phrase was used by the judge and the conviction was upheld on similar grounds as in Delvalle, Edwards and Taylor. The jury charge in Lacks was delivered prior to the release of the direction included in Taylor.
In State v. O'Neill, 67 Conn.App. 827, 834-37 (2002), the court used the contested phrase in explaining reasonable doubt to the jury well after the Delvalle decision had been released. The Appellate Court did not condone the use of the phrase, but went on to uphold the conviction using the reasoning of the cases above reviewed that the use of "ingenuity of counsel" language in a jury charge did not constitute plain error and in view of the context of the whole charge, there was no reasonable possibility that the offending language could result in juror misunderstanding.
Petitioner now claims that Attorney Abbamonte was constitutionally ineffective because he failed to object to the contested phrase in the state's argument to the jury. This was at a time when many judges were routinely including such language in their instructions to the jury. Convictions in which the judge used the language were universally upheld. In State v. Delvalle, supra, 250 Conn. 473, where the contested language was also used in the judge's charge, the court stated, "We see no reasonable possibility that the challenged language when used in context of the charge as a whole . . . resulted in juror misunderstanding." The court, however, under its supervisory authority over the administration of justice in the courts did direct that judges not use "ingenuity of counsel" language in their charges in the future. It is important to note that the Delvalle decision was released on August 24, 1999. This was over two years after petitioner's trial in March and April of 1997.
At petitioner's trial, the judge used the "ingenuity of counsel" language in his charge. Attorney Abbamonte duly excepted to the use of such language in the judge's charge.
Where the contested language was in general use by judges in their explanation of the law to the jury and it had not been found to be error for judges to do so and, also, where, at the time of trial, there was no direction to refrain from using such language, it cannot be found that the performance of Attorney Abbamonte, in failing to object to the state's attorney's use of the contested language in his argument, fell below the required standard of reasonable competency displayed by lawyers with ordinary training and skill in the criminal law.
The issue raised in the first count involved Attorney Abbamonte's failure to object to the use of the contested language in the prosecutor's argument and not the judge's charge.
It was not improper for the prosecutor to expound on legal propositions such as reasonable doubt or the burden of proof in final argument. It was, however, the function of the trial judge to actually instruct the jury on the law which they must follow concerning these concepts. The prosecutor, at least three times during his final argument, pointed this out and stated that the judge would instruct the jury on the law which would guide them in reaching their verdict. The judge, in his charge to the jury, instructed them that it was his duty and exclusive function to instruct them as to the law which they must follow in arriving at their verdict. Later in his charge, the judge repeated that it was the jury's obligation to accept the law as he gave it to them.
Where the jury was repeatedly instructed to rely on the judge's instructions on the law concerning reasonable doubt and burden of proof, it cannot be found that petitioner suffered any prejudice as a result of Attorney Abbamonte's failure to object to the prosecutor's argument involving these legal propositions. If the attorney had objected, all that he could reasonably hope for would be that the judge would give a curative instruction. Such instruction, if given, would have been the same as, or reasonably close to, the instructions actually given.
It must be concluded that petitioner has failed to prove the allegations of the first count that Attorney Abbamonte rendered ineffective assistance of counsel as alleged or that she suffered any prejudice as a result of his representation.
II.
In the second count of the petition, petitioner alleges that her incarceration is illegal because her conviction rests upon a guilty verdict by a jury improperly instructed or not given an appropriate curative instruction by the trial judge. It is further alleged that because her attorney failed to object to the improper instructions, or ask for a curative instruction, the Appellate Court declined to review the unpreserved claim of error.
In her appeal, petitioner claimed that the trial judge improperly charged the jury by "(1) failing to instruct the jury that mere presence at the crime scene, even coupled with knowledge of the crime, is insufficient to establish guilt, (2) instructing the jury that reasonable doubt is not a doubt suggested by the ingenuity of counsel, and (3) diluting the state's burden of proof with its motive instruction." State v. Gonda, supra, 53 Conn.App. 854-5.
It is claimed that Attorney Abbamonte failed to preserve any of these claims at trial and the Appellate Court declined to review the claims under the rule of State v. Golding, 13 Conn.App. 233, 239-40 (1989). Petitioner claims that the attorney's failure to take exception to these portions of the judge's charge constituted ineffective representation.
(a.)
Under the second count, petitioner's first claim is that the judge improperly charged the jury by failing to instruct them that "mere presence at the crime scene, even coupled with knowledge of the crime, is insufficient to establish guilt."
In charging the jury on the second count of the information alleging a conspiracy to commit murder, the trial judge generally followed the language of § 3.3 Connecticut Selected Jury Instructions Criminal, revised to December 31, 2001, properly relating the instructions to the facts in evidence. Section 3.3 contains the following sentence as a part of the explanation of the crime of conspiracy: "Mere presence at the scene of the crime, even when coupled with knowledge of the crime, is insufficient to establish guilt." This was not included in the judge's charge to the jury. In State v. Stellato, 10 Conn.App. 447, 455 (1987), counsel argued that the mere presence of his client at the scene of the crime, even coupled with knowledge that a crime was being committed there, was not sufficient to establish guilt. The Appellate Court agreed to this proposition of law, but concluded that the facts in evidence showed that the defendant was actively participating in a scheme to steal oil. The same language was used by the Appellate Court to explain the elements of conspiracy in State v. Lynch, 21 Conn.App. 386, 393 (1990), with reference to State v. Stellato, supra. The "mere presence" language was then included in the conspiracy charge in § 3.3, 1995, Third Edition of Connecticut Selected Jury Instructions Criminal. Following the "mere presence" language in the charge, there is a reference to State v. Lynch, supra.
This language is not found in § 5.1, p. 259, Borden Orland, Connecticut Criminal Jury Instructions, Second Edition, 1997; § 680, p. 1058, Wright, Connecticut Jury Instructions, 1975 Revision.
Petitioner has presented no evidence that the judge was required to give the instruction on conspiracy exactly as in any collection of charges. The third edition, 1995 collection of selected jury instructions contains a single page with the following: "Caveat" followed by "This collection of criminal jury instructions has been compiled to assist judges in their presentation of charges to the jury. The use of the jury instructions is entirely discretionary and their promulgation by the Judicial Branch is not a guarantee of their legal sufficiency."
In explaining the crime of conspiracy to the jury as part of the charge, the judge stated that the crime consists essentially of an agreement to perform conduct which itself is criminal followed by one or more overt acts in the pursuance of that agreement. The judge then went on to review Connecticut General Statutes § 53a-48a for the jury. The judge stated that this statute provides "a person is guilty of conspiracy, when with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." The judge then repeated that there were three elements to this offense which he explained again. The judge then went on in great detail to explain the elements of conspiracy to the jury. From the judge's instructions, for the jury to convict petitioner of the crime of conspiracy, it would have to find beyond a reasonable doubt that petitioner had the intent that criminal conduct be performed and that she had an agreement with one or more persons to engage in or cause the performance of that conduct and that there was an overt act committed in the pursuance of this agreement. Instructions by the judge clearly would rule out any conviction based upon petitioner's mere presence at the scene of the crime even coupled with knowledge of the crime.
In her appeal to the Appellate Court from her conviction, the first issue raised by petitioner was that the evidence was insufficient to allow a conviction of the conspiracy charge. To consider this issue, the Appellate Court engaged in an analysis of the law of conspiracy and the facts of the case. In rejecting petitioner's claim of insufficient evidence to establish conspiracy, the Appellate Court made the following conclusion.
Our review of the record demonstrates that the jury heard evidence that the defendant and her son Peter discussed killing the victim. The two were in need of money and knew that the defendant was to inherit the victim's condominium. They plotted to recruit teenagers to break into the condominium to kill the victim. They tried to poison the victim. The defendant and Peter both talked to Pavliscak about killing the victim and the defendant gave Pavliscak a key to the condominium. The defendant purchased beer for Peter and Pavliscak on the afternoon of the murder. The defendant let Peter, Garrett and Pavliscak into the condominium. Peter and Garrett struck the victim on the head with beer bottles. The defendant placed a belt around the victim's neck and they all pulled on the belt. The victim died of a heart attack associated with an assault. The next day the defendant pawned the victim's jewelry and camera equipment. We conclude, therefore, that it was not unreasonable for the jury to infer from the facts before it that the state proved beyond a reasonable doubt that the defendant agreed with another to murder the victim, that there was an overt act to further the conspiracy to kill the victim and that the defendant had the requisite intent to murder the victim.
A review of the total charge dealing with the conspiracy crime clearly indicates that the jury was properly instructed on the law covering conspiracy and that Attorney Abbamonte's failure to take exception to the charge, as given, did not show a lack of competency or was in any way deficient. If an exception had been taken and the judge did amend the charge to include the "mere presence" language, it would have been of little help to petitioner in light of the law and the facts recited by the Appellate Court.
To illustrate this point, a comparison of the facts of petitioner's case and the facts involved in State v. Stelatto, supra, is in order. Stelatto involved a complex and well planned conspiracy to steal oil by transferring it at night by truck from the victim's storage tank to a conspirator's facility. Ms. Stelatto had a legitimate reason for being on the premises at the time the oil was being delivered and could reasonably have deduced, as did at least one of the truck drivers, that some type of criminal activity was afoot. In this situation, it was not inappropriate for defense counsel to argue that the mere presence of his client at the scene of the crime, even with knowledge that a crime was being committed, was not sufficient to establish participation in a conspiracy.
The facts in Stellato are in significant contrast to the facts recited by the Appellate Court in petitioner's case where at the scene petitioner placed a belt around the victim's neck and they all pulled on the belt.
Petitioner has failed to establish that she suffered any prejudice as a result of the judge's failure to give the "mere presence" charge or the attorney's failure to take exception to such charge or request an alternate charge.
(b.)
The second count of the petition alleges that the trial judge's instructions to the jury were improper and that Attorney Abbamonte failed to "object to the improper jury instruction or ask for a curative instruction." It is further alleged that the Appellate Court declined to review these unpreserved claims of error. Petitioner is correct in her allegation that the Appellate Court declined to review certain alleged improprieties in the jury charge because her attorney failed to preserve such claims at trial. The second claim of impropriety is that the judge instructed the jury that "reasonable doubt is not a doubt suggested by the ingenuity of counsel." State v. Gonda, supra, 53 Conn.App. 854-55.
A review of the transcript of the trial indicates that in explaining reasonable doubt to the jury, the judge included the following sentence. "Nor is it a doubt suggested by the ingenuity of counsel or of a juror not warranted by the evidence."
At the conclusion of the charge and after the jurors and alternates had been removed from the courtroom, the court asked counsel if there were exceptions to the charge. Mr. Abbamonte then stated as follows:
MR. ABBAMONTE: Yeah, Your Honor.
The first one is the normal one I usually make with regard to reasonable doubt when Your Honor says it is not due to the ingenuity of counsel.
I think I have alleged before, and I will allege again, that I think this unfairly, since it can only be ingenuity of defense counsel, that it unfairly highlights the defense counsel. I understand it is a regular part of the charge, but I would take exception to that.
The transcript clearly indicates that Attorney Abbamonte properly took exception to the "ingenuity of counsel" language in the charge as required by Connecticut Practice Book Section 42-16.
Petitioner has failed to prove this allegation of ineffective assistance of counsel. Also, petitioner has failed to prove that she suffered any prejudice as a result of the use of the contested language in the charge since convictions have uniformly been upheld where such language has been included in the judge's instructions to the jury.
(c.)
The Appellate Court also refused to review a claim that the judge's charge diluted the state's burden of proof with its motive instruction because the claim of error had not been properly preserved at trial.
As a part of his instructions to the jury on the element of intent, the judge gave the following instructions which covered "motive."
Declarations and conduct of the accused before and after the infliction of wounds may be considered if you find they tend to show the defendant's intent.
Evidence of motive or the lack of it may also be considered by you in determining the issue of intent.
The law does not require that the state in a criminal case prove a motive. That is, it is not necessary for the state to prove what reason an accused person had for committing the crime charged, what motivated her to do it. Recognizing the fact that crimes are generally committed for some motive, evidence tending to show the existence of a motive is admissible and may be evidence tending to prove the guilt of an accused person if it appears that she has a motive.
In the same manner, in any case in which there appears no adequate motive on the part of the particular accused to commit the crime, that fact may tend to raise a reasonable doubt as to the guilt of that accused.
Whatever motivates a person, however, rests only in her mind. No one else can look into a mind and see what is there. Whatever was in her mind must be inferred from her conduct in the light of the surrounding circumstances.
You are entitled, indeed it is your duty, to draw inferences from a person's conduct as are reasonable. You should examine the conduct of an accused in the light of the surrounding circumstances, and, knowing how the human mind ordinarily operates, endeavor to determine whether on all the evidence it can reasonably be inferred that the accused did have a motive to commit the crime.
If the existence of a motive can reasonably be inferred, that may be evidence tending to prove guilt. If no motive can be inferred or found, that may tend to raise a reasonable doubt as to the guilt of the accused or it may not raise such a doubt. If the absence of an apparent motive does not raise a reasonable doubt that the accused is guilty, then the mere fact that the state has been unable to prove what the motive of the accused actually was does not prevent you from returning a verdict of guilty.
In this case, therefore, it will be part of your duty to draw all reasonable and logical inferences from the conduct you may find the defendant engaged in the light of the surrounding circumstances, and from this determine whether the state has proven the elements of intent beyond a reasonable doubt.
This inference is not a necessary one. That is, you are not required to infer intent from the accused's conduct. But it is an inference that you may draw if you find it is reasonable and logical and in accordance with the instructions on circumstantial evidence.
I again remind you that the burden of proving intent beyond a reasonable doubt is on the state.
Attorney Abbamonte did not take exception to this portion of the charge or request an alternative instruction.
The above-quoted portion of the charge on the question of "motive" appears to have been based upon alternative charge # 2 found in § 2.22, Motive, a Collection of Connecticut Selected Jury Instructions, Criminal, Third Edition, February 1995.
The instruction given was similar to that found in State v. Pannock, 220 Conn. 765, 792 (1992). Petitioner has failed to indicate what constituted error in this portion of the judge's charge or how she could have suffered prejudice as a result of it.
There was considerable evidence of petitioner's motive to engage in the conspiracy to cause the death of the victim. The judge's charge properly instructed the jury concerning how they could consider this evidence. The instruction was balanced and the jury was instructed that if no adequate motive on the part of petitioner was found, this would tend to raise a reasonable doubt on her behalf. While instructing the jury on motive, the judge repeated the instruction that the state had the obligation to prove its case beyond a reasonable doubt before petitioner could be convicted.
Petitioner has failed to prove that the instructions given on the charge of "motive" were in any way improper as alleged or that petitioner suffered any prejudice as a result of such instructions. For this reason, ineffective assistance of counsel cannot be found as alleged.
III.
Considering all of the evidence and reasonable inferences which could be inferred from such evidence in this case and the law applicable to the allegations of the petition, it cannot be found that petitioner has proven ineffective assistance of counsel as alleged against Attorney Abbamonte. In representing petitioner, Attorney Abbamonte's performance did not fall below the required standard of competence required of him. Petitioner suffered no prejudice as a result of her representation by Attorney Abbamonte.
Accordingly, the petition for a writ of habeas corpus is denied.
Joseph J. Purtill Judge Trial Referee