Opinion
No. MMX CV 04-0103397
September 19, 2006
MEMORANDUM OF DECISION
The petitioner, Roy Sastrom, in his petition for a writ of habeas corpus initially filed on December 9, 2003, and amended for the third and final time on March 1, 2006, challenges his acquittal by reason of mental disease or defect of four counts of criminal. attempt to commit larceny by extortion in the first degree in violation of General Statutes §§ 53a-122(a)(1), 53a-119(5)(a) and 53a-49(a)(2). The petitioner asserts that his counsel was ineffective because the state presented insufficient evidence to prove beyond a reasonable doubt the element of intent for attempt to commit larceny and yet petitioner's counsel did not oppose the verdict, file a motion to set aside or take an appeal.
The respondent, Garrell Mullaney, the chief executive officer of Connecticut Valley Hospital, submitted a return in answer to the petition denying petitioner's claims that defense counsel was ineffective, that the state failed to present sufficient evidence of his specific intent to commit larceny and that the court violated petitioner's constitutional rights to procedural due process. This matter was submitted to the court on memoranda of law pursuant to the petitioner's motion for order.
The respondent also asserts that the petitioner cannot obtain habeas corpus review of his claims that he was denied due process of law and a fair trial as a result of state's failure to present sufficient evidence because such a claim is procedurally defaulted. In his memorandum of law in support of the petition, the petitioner clarifies that while the amended petition asserts that the evidence was insufficient and characterizes the court's actions as a denial of the petitioner's constitutional rights to procedural due process, the petitioner is not procedurally defaulted because the only basis for the petition is the ineffective assistance of the petitioner's counsel.
FACTS
Between October of 1992 and November of 1993, Raymond Berchem received four letters of a threatening nature; three at his business in Bridgeport, Connecticut and one at his home in Huntington. Each letter was signed by the petitioner and bore his return address at the Osborn Correctional Institution (Osborn). The first two letters threatened Berchem with bodily harm unless he sent the petitioner a $500 money order and refrained from contacting the police. The third and fourth letters stated that Berchem had two weeks to send the petitioner a $50,000 cashier's check or else the petitioner would kill Berchem and destroy his wife, home and business. The letters caused Berchem and his family to experience great fear and concern.
During the time the letters were written, the petitioner was a sentenced inmate.
Berchem turned the letters over to the police, who subsequently interviewed the petitioner at the Osborn. Although the petitioner denied knowing Berchem and having written the letters, he admitted to knowing Berchem's ex-wife, Diane, and to having fantasies about killing Berchem. During that interview, documents written by the petitioner were seized and forwarded to the state police forensic laboratory for handwriting analysis. That analysis positively identified the petitioner as the author of the letters. The petitioner was later charged under two substitute informations with four counts of harassment in the first degree in violation of General Statutes § 53a-182b(a); four counts of threatening in violation of General Statutes § 53a-62(a)(2); and four counts of criminal attempt to commit larceny by extortion in the first degree in violation of §§ 53a-122(a)(1), 53a-119(5)(a) and 53a-49(a)(2). The petitioner pleaded not guilty to the charges and elected to be tried by the court.
The petitioner claimed that Diane had begged him to kill Berchem on several occasions.
General Statues § 53a-122(a)(1) provides: "(a) A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and: (1) The property or service, regardless of its nature and value, is obtained by extortion."
General Statues § 53a-119(5)(a) states: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to: (5) Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future."
General Statutes § 53a-49(a)(2) states: "(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
The petitioner was tried before Judge Jonathan J. Kaplan in the Superior Court of Tolland on April 6, 1994. The state presented four witnesses: Berchem; Detective Joseph Masson, who investigated the letters and interviewed the petitioner; William Grady, the correction investigator who provided samples of the petitioner's handwriting; and Detective Thomas Murray, who submitted the letters and handwriting samples for analysis. The petitioner put on a single witness, Walter Borden, a psychiatrist, who testified that the petitioner was seriously mentally ill with complex mental disorders. After the court found that there was "[c]ertainly enough evidence presented to prove the allegations beyond a reasonable doubt, particularly the most serious charges, the extortion charges"; (trial transcripts, April 6, 1994, p. 57); it acquitted the petitioner, by reason of mental disease or defect of all twelve counts. The petitioner was subsequently committed to the custody of the commissioner of mental health for a period of forty years pursuant to General Statutes § 17a-582, subject to periodic reviews by the psychiatric security review board.
General Statutes § 17a-582 provides in relevant part: "When any person charged with an offense is found not guilty by reason of mental disease or defect pursuant to section 53a-13, the court shall order such acquittee committed to the custody of the Commissioner of Mental Health and Addiction Services who shall cause such acquittee to be confined, pending an order of the court pursuant to subsection (e) of this section, in any of the state hospitals for psychiatric disabilities or to the custody of the Commissioner of Mental Retardation, for an examination to determine his mental condition."
DISCUSSION
Before addressing the petitioner's claims, the court must determine whether the relief sought by the petitioner can be granted. The petitioner's prayer for relief asks, inter alia, that the "finding of the trial court be vacated and the matter returned to the trial court docket for further proceedings according to law." "[I]t is rare for an insanity acquittee to challenge his or her acquittal; even rarer is the case in which that challenge is successful." Connelly v. Commissioner of Correction, 258 Conn. 394, 405, 780 A.2d 903 (2001). While, "[t]he request for a new trial is unusual considering the fact that the petitioner was acquitted of the charges against him, albeit by reason of mental disease or defect . . . [t]he petitioner . . . does have a right to request a new trial and risk a conviction." (Citations omitted; internal quotation marks omitted.) Lindo v. Mullaney, 78 Conn.App. 827, 830, 829 A.2d 86, cert. denied, 266 Conn. 920, 835 A.2d 60 (2003). Since the petitioner can receive a new trial, the court must next evaluate his claim of ineffective assistance of counsel in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The sixth amendment to the United States constitution guarantees a criminal defendant "the assistance of counsel for his defense." U.S. Const., amend. VI. "It is axiomatic that the right to counsel is the right to the effective assistance of counsel." (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland v. Washington, supra, 466 U.S. 687.
In order to establish ineffective performance under the first prong of the Strickland test, the petitioner must show that counsel's representation "fell below an objective standard of reasonableness." Id., 688. In other words, the petitioner must demonstrate that counsel's representation was not "reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." (Internal quotation marks omitted.) Bowden v. Commissioner of Correction, 93 Conn.App. 333, 339, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006). In analyzing counsel's performance, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, supra, 466 U.S. 689. The petitioner bears the burden of overcoming this presumption. Id.
The petitioner claims that the state failed to meet its burden under §§ 53a-119(5)(a) and 53a-49(a)(2) because it "presented no evidence that petitioner possessed a specific intent to commit larceny, nor did it produce evidence that petitioner had the means, will, or intent to take any overt act against the recipient of his correspondence, and the court so found: `The aspect of the letters demanding money, as opposed to taking any overt acts toward carrying out a threat, was an indication that [the petitioner] wants to lengthen his time, either in prison or in an institution.'" (Docket Item #114, ¶ 3.) Moreover, the petitioner argues that Borden's testimony that the "petitioner did not write the letters at issue for the purpose of threat, harassment or larceny but rather to appease voices in his mind which compelled him to `hurt himself,' to `harm himself in some way,' `to increase his sentence,' and to do that which would cause him to `spend the rest of his life in prison and preferably that he suffer at the same time'" proved that "the petitioner did not have the specific intent to commit larceny." (Docket Item #114, ¶¶ 4-5.)
"In reviewing a sufficiency of the evidence claim, [the court] appl[ies] a two-part test. First, [it] construe[s] the evidence in the light most favorable to sustaining the verdict. Second, [it] determine[s] whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. McCoy, 91 Conn.App. 1, 3, 879 A.2d 534, cert. denied, 276 Conn. 904, 884 A.2d 1026 (2005). "[The court does] not sit as a thirteenth juror, and do[es] not ask whether [it] believe[s] the evidence established guilt beyond a reasonable doubt, but rather, whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Lynch, 21 Conn.App. 386, 400, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990).
"Essentially, an attempt under 53a-49(a) is an act or omission done with the intent to commit some other crime. The act or omission constituting a substantial step must be more than mere preparation for committing the intended crime. [It] must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the actor at least to be possible of commission by the means adopted. It also must be strongly corroborative of the actor's criminal purpose." (Citations omitted; internal quotation marks omitted.) State v. Lynch, supra, 21 Conn.App. 401-02. Therefore, in order to have found that the petitioner had the specific intent required to commit the crime of attempted larceny by extortion, the court had to find that the petitioner sent the letters with the intent to wrongfully deprive Berchem of his property by inducing him by threat to deliver the property to the petitioner or a third party. Id., 402; General Statutes § 53a-119(5)(a). Because "direct evidence of the accused's state of mind is rarely available . . . intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom." (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239-40, 745 A.2d 800 (2000).
"[U]nder Connecticut law, the plea of not guilty by reason of insanity differs from a plea of guilty in that the State still has an obligation to present a prima facie case sufficient to convince the triers of fact beyond a reasonable doubt that the defendant performed the acts alleged . . . Nonetheless, it is plain that the insanity plea is more like a plea of guilty than it is like a plea of not guilty since, while not relieving the State of all burden to prove that the defendant performed the acts charged, the insanity plea lessens that burden considerably as a practical matter by barring the defendant from contesting or impeaching the State's proof and from presenting other evidence that could counter that proof"; (citations omitted; emphasis added; internal quotation marks omitted). Duperry v. Solnit, 261 Conn. 309, 328, 803 A.2d 287 (2002); "because the defendant has admitted his commission of the crime." State v. Connelly, 46 Conn.App. 486, 495, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S.Ct. 245, 142 L.Ed.2d 201 (1998). During the trial, the state introduced four letters written in the petitioner's hand and bearing the petitioner's name and address that demanded money and threatened Berchem and his family with harm if the money was not delivered. The first letter stated: "So, what do you think about having your head blown off? It's going to happen guy if you don't send a $500.00 money order to the above address real soon." (Copy of the letter postmarked November 2, 1992, attached to petitioner's memorandum of law in support of petition for writ of habeas corpus.) The second letter began with: "You obviously don't take me serious. I want $500.00 dollars in money order form in 10 days or I'm going to give your x Diane a number to call with instructions to give, and you are going to wish you did what I told you to do." (Copy of letter postmarked October 22, 1992, attached to petitioner's memorandum of law in support of petition for writ of habeas corpus.) The final letter, which was sent to Berchem's house, concluded with: "You really have no idea who you are [expletive] with. Police don't scare me and neither does prison time. I will have 50% of my time in soon also, so bear that in mind. If I were you I would send the money and lets get on with our lives." (Respondent's exhibit F.)
Although here the petitioner did not enter a plea of not guilty by reason of mental disease or defect, but, rather, entered a plea of not guilty and relied on an affirmative defense of mental disease or defect, "his assertion of that affirmative defense at trial [is] the equivalent of a plea of not guilty by reason of mental disease or defect." State v. Ouellette, 271 Conn. 740, 762 n. 26, 859 A.2d 907 (2004).
The court notes "that certain other claims or defenses available to criminal defendants also tend to reduce the burden on the state to prove one or more elements of a particular offense. For example, the affirmative defense of extreme emotional disturbance, like the affirmative defense of mental disease or defect, necessarily carries with it the defendant's acknowledgment that he committed the prohibited acts but that he did so with a less culpable mental state. Similarly, a claim of self-defense presupposes that the defendant committed the acts alleged by the state." State v. Ouellette, supra, 271 Conn. 769 n. 36.
Construing this evidence in the light most favorable to sustaining the trial court's finding, while bearing in mind the lesser burden imposed on the state when the affirmative defense of mental disease or defect is advanced, this court finds that the cumulative effect of the evidence overwhelmingly shows that the trial court reasonably could have found that the essential elements of the crime were proven beyond a reasonable doubt. Under §§ 53a-49(a) and 53a-119(5), it was not necessary for the state to show that the petitioner had the means, will, or intent to carry out his threats. The law only requires a showing that the petitioner took a substantial step in a line of conduct that would naturally lead to the commission of a crime of larceny by extortion. Moreover, the court's comments that the petitioner demanded money in order to lengthen his time in jail or in an institution were not official findings regarding the petitioner's intent, they were words of comfort directed at the victim and his family to help them "try to get back to some semblance of an ordinary life." (Trial transcripts, April 6, 1994, p. 56.) Additionally, because the assertion of the aforementioned defense bars a defendant from impeaching the state's case, this court is not convinced that Borden's testimony regarding the petitioner's motivation for writing the letters was offered as proof that the petitioner did not have the specific intent to commit larceny.
Hence, because the evidence submitted does not support the petitioner's claim that the state failed to meet its burden with regard to the charge of criminal attempt to commit larceny, this court finds that the petitioner has not produced sufficient evidence to overcome the presumption that counsel's failure to oppose the verdict, file a motion to set aside or take an appeal was reasonable under the first prong of the Strickland test. It is therefore unnecessary to evaluate the second prong of that test. For the aforementioned reasons, the petitioner's writ of habeas corpus is denied.