Opinion
No. CV 06 4000933
February 23, 2011
MEMORANDUM OF DECISION
The petitioner, Randall Saunders, alleges in his petition for a writ of habeas corpus, filed on February 3, 2006 and amended on December 3, 2007, that his trial and appellate counsel rendered ineffective assistance. He also alleges prosecutorial impropriety. The petitioner was the defendant in a criminal case in the judicial district of Danbury, bearing docket number CR97-0098074. Initially, he was charged and tried for murder in violation of General Statutes § 53a-54a. After the jury could not reach a unanimous verdict, the trial court, Moraghan, J., declared a mistrial. The petitioner was subsequently retried under a substitute information charging him with manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55a(a) and 53a-55(a)(1) and (3). The second jury found the petitioner guilty of manslaughter in the first degree in violation of General Statutes §§ 53a-55a(a) and 53a-55(a)(3). On May 30, 2001, the trial court, Holden, J, sentenced the petitioner to twenty-seven years to serve. Attorney Robert Field represented the petitioner at both trials. The petitioner unsuccessfully appealed his conviction. See State v. Saunders, 267 Conn. 363, 838 A.2d 186, cert. denied, 541 U.S. 1036, 124 S.Ct. 2113, 158 L.Ed.2d 722 (2004). Attorney Lisa Steele represented him on his direct appeal.
Attorney Field was the third in a series of attorneys to represent the petitioner in the underlying case.
The matter came before this court for a trial on the merits on May 13, 14 and August 5, 2010. Testifying were the petitioner, Attorney Steele, Detective Roger Brooks, Officer Charles Emicke and Attorney Warren Murray, the prosecutor in the petitioner's criminal trials. Both parties submitted exhibits including, but not limited to, transcripts of the criminal proceedings and photos of evidence collected from the crime scene.
FACTS
As stated by the Supreme Court on direct appeal, the jury reasonably could have found the following facts underlying the petitioner's conviction: "On January 26, 1997, the [petitioner] and his girlfriend, Susan Bruemmer, went to Tortilla Flat, a restaurant and bar in Danbury, after having spent the previous several hours drinking at another bar. The two remained at Tortilla Flat during the Super Bowl and continued to drink. As the [petitioner] and Bruemmer were getting ready to leave after the end of the game, Bruemmer approached the victim, Dominic Badaracco, Jr., who was seated at the bar, and struck up a conversation with him. Bruemmer was acquainted with the victim because she previously had dated his brother. The conversation soon escalated into an argument, which culminated in Bruemmer's throwing a drink in the victim's face.
"The victim then called out to the [petitioner] that he had `better contain [his] bitch.' The [petitioner] drew a handgun, approached the victim, and placed the barrel of the gun against the victim's head or neck. A fight ensued between the [petitioner], who is approximately six feet, five inches tall and 220 pounds, and the victim, who was approximately six feet, two inches tall and 230 pounds. The men proceeded to fight. During the fight, which lasted only a short time, the victim punched the [petitioner] in the face. As a result, the defendant suffered minor injuries including a bloody nose and some cuts and abrasions on his face. The victim's shirt was torn, and a gold chain that he had been wearing around his neck was broken.
"As the fight broke out, Bethany McKnight, a bartender, heard someone in the bar yell `there's a gun . . .' McKnight went into the kitchen to call 911 but discovered Paula Keeler, the sister-in-law of Dennis Keeler, one of the owners of Tortilla Flat, already had made the call. Dennis Keeler also entered the kitchen to confirm that the police had been called. By this time, the [petitioner] had entered the kitchen from the bar area. Dennis Keeler noticed that the [petitioner] was holstering his weapon. McKnight and Paula Keeler asked the [petitioner] whether he had been shot and if he wanted them to call for an ambulance. The [petitioner] smiled and said no. Paula Keeler thereafter left the kitchen and went upstairs. At this time, the [petitioner] was located within fifteen feet of a door leading to the outside of the restaurant.
"The victim, who had remained in the bar area, headed toward the kitchen. As the victim approached the kitchen doorway, he kicked a garbage can, stopped near the doorway and, according to Dennis Keeler, shouted to the [petitioner] that `if he [the petitioner] ever pulled a gun on him again he'd kill him.' The victim then continued to move toward the [petitioner]. Dennis Keeler asked the victim `to stop, to let it go . . .' The victim did not heed Keeler's request, however, and continued to advance in the direction of the [petitioner].
"By this time, the [petitioner] was leaning against a stove, wiping blood from his face. McKnight, who had remained in the kitchen, testified that the [petitioner] pulled out his handgun and `just calm [sic] as a cucumber . . . started firing.' The [petitioner] discharged all five of the bullets from his gun. The victim was struck by four of the five bullets, three of which entered through his back. The other bullet struck the victim in the left arm, near the armpit. The police soon arrived and arrested the [petitioner]. The victim subsequently died as a result of one or more gunshot wounds." State v. Saunders, supra, 267 Conn. 366-67.
Additional facts will be discussed as necessary.
DISCUSSION
The petitioner raises three claims in his amended petition: (1) a claim of prosecutorial impropriety, (2) a claim of ineffective assistance of trial counsel and (3) a claim of ineffective assistance of appellate counsel.
Prosecutorial Impropriety
In his amended petition, the petitioner alleges numerous acts of prosecutorial impropriety. In the return to the petition, the respondent raised the defense of procedural default as to the petitioner's claim of prosecutorial impropriety on the ground that the petitioner failed to raise it on direct appeal. The petitioner did not file a reply.
The respondent also raised the defense of res judicata as to this claim; however, since the defense of procedural default disposes of this claim, there is no need to address the defense of res judicata.
Constitutional claims not raised on direct appeal are subject to procedural default. "Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice." Zabian v. Commissioner of Correction, 115 Conn.App. 144, 152, 971 A.2d 822 (2009); see also Practice Book § 23-31 ("[t]he reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default"). "The cause and prejudice standard is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule." (Citations omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 191, 982 A.2d 620 (2009).
There is no dispute that the petitioner did not raise a claim of prosecutorial impropriety on direct appeal. Accordingly, this claim is subject to procedural default. Since the respondent raised the defense of procedural default in the return, the burden shifted to the petitioner to allege and prove cause and prejudice. The petitioner has neither alleged nor proven cause and prejudice to overcome the default. Consequently, his claim of prosecutorial impropriety is not directly reviewable by this Court.
"On appeal, the [petitioner claimed] that: (1) the state failed to disprove his claim of self-defense beyond a reasonable doubt; (2) the trial court improperly excluded certain expert testimony in violation of his constitutional right to present a defense; and (3) he was retried in violation of his constitutional right not to be placed in jeopardy twice for the same offense." State v. Saunders, supra, 267 Conn. 365-66.
Ineffective Assistance of Trial Counsel
In his amended petition, the petitioner claims that his trial counsel rendered ineffective assistance in thirty-one different ways. The petitioner only presented evidence on some of these specific allegations; only those allegations will be reviewed.
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Citations omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689.
The petitioner first asserts that Attorney Field failed to present evidence that the victim was armed. Specifically, he contends that there was evidence of a sixth bullet. The petitioner testified at the habeas trial that his gun only carried five bullets and that he shot the victim five times because he thought the victim was reaching for a weapon. He believes that a sixth gunshot can be heard on the audio recordings of the 911 calls made from the restaurant that night and that the state's evidence contains a photograph of a sixth bullet. The petitioner also believes that the person who was over the victim's body when the police arrived may have taken the victim's weapon. On cross-examination, he admitted that he did not see a gun; however, he asserted that thirty minutes after the incident he remembered hearing an additional gunshot.
See Petitioner's Exhibit [Exh.] 26.
Detective Roger Brooks, the police officer who led the team that processed the evidence in the petitioner's case, testified at the habeas trial that seven projectiles or bullet fragments were collected: four from the crime scene and three from the medical examiner. He identified the projectile believed to be a sixth bullet by the petitioner as the projectile that was collected from the floor near the victim's clothing. He contended that it was logged in as item number one on the evidence log. Detective Brooks also opined that the item pictured in Petitioner's Exhibit 21 was some sort of a grommet or rivet of a cooking pot. He stated that it was not collected or processed because it was not a projectile. He further testified that he looked for evidence that the victim had a weapon but did not find anything.
See Petitioner's Exh. 28 (item number one is described as a projectile that was located on the "floor").
Officer Charles Emicke, one of the police officers who assisted Detective Brooks, testified that he looked for bullet fragments and that he found one by the fryer in the kitchen. He recalled speaking to people present at the scene but could not recall specifically to whom he spoke; he did not take any statements.
There is no credible evidence before this Court of a sixth bullet. As testified to by Detective Brooks, the projectile pictured in Petitioner's Exhibit 26 was collected and logged in as item number one on the evidence log. From the evidence collected five complete bullets were identified, and they were identified as being fired from the petitioner's gun. No other bullets were identified. All of the eyewitnesses who testified at the criminal trial testified that they never saw the victim with a gun. Accordingly, Attorney Field cannot be faulted for failing to present nonexistent evidence. Moreover, contrary to the petitioner's contention, Attorney Field did present evidence suggesting that the victim may have been armed. During the criminal trial, he highlighted that there had been numerous people present at the crime scene, that the bar had been cleaned before Detective Brooks processed the evidence, that no personal property was found on the victim, that the victim's hands were not tested for the presence of gunshot residue, and that the person who was over the victim's body was never searched. In short, the petitioner has not met his burden in establishing deficient performance on the part of Attorney Field. Accordingly, this claim fails.
Petitioner's Exh. 12, March 8, 2001 Transcript, pp. 158-66.
Petitioner's Exh. 10, February 28, 2001 Transcript, pp. 40, 87-88, 108, 135, 160, 201,; Petitioner's Exh. 11, March 7, 2001 Transcript, p. 142; Petitioner's Exh. 12, March 8, 2001 Transcript, p. 200; Petitioner's Exh. 12, March 9, 2001 Transcript, p. 88, 151; Petitioner's Exh. 13, March 13, 2001 Transcript, p. 15.
Petitioner's Exh. 10, March 1, 2001 Transcript, p. 81; Petitioner's Exh. 11, March 2, 2001 Transcript, pp. 72, 103-04, 109-14.
The petitioner next claims that Attorney Field should have objected to the substitute information charging him in the conjunctive with manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55a(a) and 53a-55(a)(1) and (3). It is his contention that § 53a-55(a)(1) and (3) are separate offenses that cannot be charged in a single count.
"The function of an accusatory pleading such as an information is to inform a defendant of the nature and cause of the accusation as required by our federal and state constitutions." (Internal quotation marks omitted.) State v. Rosario, 82 Conn.App. 691, 695, 846 A.2d 926, cert. denied, 270 Conn. 902, 853 A.2d 521 (2004). "It is fundamental that [t]he sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial." (Internal quotation marks omitted.) Bloomfield v. Commissioner of Correction, 111 Conn.App. 752, 757, 960 A.2d 1093 (2008), cert. denied, 290 Conn. 912, 964 A.2d 547 (2009). "[A] charging document may properly allege, conjunctively, in one count, several statutory methods of committing a single offense." (Internal quotation marks omitted.) State v. Wohler, 231 Conn. 411, 415, 650 A.2d 168 (1994). That is, "[a]n information charging the defendant with alternate methods of committing one substantive [crime] is sufficient to inform the defendant adequately of the nature of the charge[s] against him . . ." State v. Reyes, 19 Conn.App. 179, 189, 562 A.2d 27 (1989), cert. denied, 213 Conn. 812, 568 A.2d 796 (1990).
Prior to the commencement of jury selection in the petitioner's second criminal trial, the prosecutor filed a substitute long-form information. The substitute long-form information stated in relevant part: "In the Superior Court of the state of Connecticut, [the senior assistant state's attorney] . . . accuses [the petitioner] of manslaughter in the first degree with a firearm and charges that . . . [the petitioner], while using a revolver with the intent to cause serious physical injury to another person, did cause the death of such other person, Dominic Badaracco, in violation of [General Statutes §§] 53a-55(a)(1) and 53a-55a(a) . . . AND further charges that . . . [the petitioner], while using a revolver under circumstances evincing an extreme indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person, Dominic Badaracco, and thereby caused the death of such other person, Dominic Badaracco, in violation of [General Statutes §§] 53a-55(a)(3) and 53a-55a(a)."
"Before a trial begins, the state has broad authority to amend an information pursuant to Practice Book § 36-17." (Internal quotation marks omitted.) State v. Carbone, 116 Conn.App. 801, 806, 977 A.2d 694, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).
Petitioner's Exh. 31.
Contrary to the petitioner's contention, subsections (1) and (3) under § 53a-55(a) do not constitute separate offenses for charging purposes; they are alternate methods of committing the same offense. Subsections (1) and (3) under § 53a-55(a) describe alternative means of committing a single crime: manslaughter in the first degree. One way to commit manslaughter in the first degree, as described in subsection (1), is "with intent to cause serious physical injury to another person, [the defendant] causes the death of such person . . ." General Statutes § 53a-55(a)(1). Another way to commit the crime, as described in subsection (3), is "under circumstances evincing an extreme indifference to human life, [the defendant] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." General Statutes § 53a-55(a)(3). The only difference between the two subsections is the requisite mental state; subsection (1) requires a more culpable mental state than subsection (3). Despite this difference, the subsections are not so dissimilar as to constitute separate offenses. Cf. State v. Tanzella, 226 Conn. 601, 613, 628 A.2d 973 (1993) (holding that although subsections (1) and (2) of General Statutes § 53a-61(a) require a different mental state and degree of harm they are "simply different means of committing the same crime, namely, assault in the third degree"). Both subsections require the state to prove that the defendant, with a significantly culpable state of mind, caused the death of another person. They are simply different ways of committing the same offense, manslaughter in the first degree. Consequently, there was no reason for Attorney Field to object to the substituted long-form information. As noted supra, "[a] charging document may properly allege, conjunctively, in one count, several statutory methods of committing a single offense." (Internal quotation marks omitted.) State v. Wohler, supra, 231 Conn. 415. Accordingly, the petitioner's claim fails.
The petitioner cites State v. Tomlin, 266 Conn. 608, 835 A.2d 12 (2003) for the proposition that § 53a-55(a)(1) and (3) are separate offenses. In Tomlin, the Supreme Court held: "We believe that the term `offense,' as it is used in [ State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980)], refers to each distinct method, which may be comprised of different elements, by which a crime may be completed. The term `offense' does not refer to the title of the crime encompassing each of those distinct methods. For example, the lesser included offense at issue in the present case, namely, manslaughter in the first degree with a firearm, may be completed in three different ways by satisfying distinct elements. Thus, there are three distinct offenses, within the meaning of the Whistnant analysis, encompassed in the crime of manslaughter in the first degree with a firearm." (Emphasis added.) State v. Tomlin, supra, 266 Conn. 624. Notably, the Supreme Court defined the term "offense" and addressed the crime of manslaughter in the first degree with a firearm within the context of the Whistnant analysis, which determines whether an offense is a lesser included offense of the charged offense. Additionally, nowhere in Tomlin does the Court address whether the subsections of § 53a-55(a) constitute separate offenses for charging purposes. Accordingly, Tomlin is not applicable to the petitioner's case.
The petitioner also claims that Attorney Field rendered ineffective assistance by failing to object to the trial court's charge to the jury. The petitioner challenges the jury instructions on several grounds. First, he appears to claim that the trial court should not have instructed the jury on reckless manslaughter in the first degree because the state did not present sufficient evidence on that charge. Next, he claims that the trial court improperly instructed the jury to "decide one of them [intentional or reckless manslaughter in the first degree]." He contends that the jury found him not guilty of intentional manslaughter in the first degree based upon his defense of self-defense and that accordingly, the jury should not have gone on to consider the reckless manslaughter in the first degree charge. He cites to the acquittal first doctrine in support of this contention. Lastly, he claims that the trial court essentially instructed the jury to deliberate until it found him guilty.
"It is true that it is error for the trial judge to instruct the jury on alternative methods of committing an offense when there is insufficient evidence to support each. State v. Hufford, 205 Conn. 386, 399, 533 A.2d 866 (1987); State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987). Submitting unsupported alternative forms to the jury implicates the defendant's constitutional right to be convicted only upon proof beyond a reasonable doubt of all elements of the offense charged." State v. Wynter, 19 Conn.App. 654, 665-66, 564 A.2d 296, cert. denied, 213 Conn. 802, 567 A.2d 834 (1989).
In the petitioner's case, the trial court instructed the jury on two alternative ways of committing manslaughter in the first degree with a firearm: "[m]anslaughter intentional and manslaughter reckless both involving a firearm." "A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses . . . a pistol, revolver, shotgun, machine gun, rifle or other firearm . . ." General Statutes § 53a-55a. "To obtain a conviction for manslaughter in the first degree [under General Statutes § 53a-55(a)(3)], the state must prove beyond a reasonable doubt that the defendant, `under circumstances evincing an extreme indifference to human life . . . recklessly engages in conduct which creates a grave risk of death to another, and thereby causes the death of another person.' General Statutes § 53a-55(a)(3). The state also must prove that the defendant had the general intent to engage in conduct that created a grave risk of death to another person under circumstances evincing an extreme indifference to human life . . . A specific intent to kill or injure is not required." (Citation omitted; internal quotation marks omitted.) State v. Hallowell, 61 Conn.App. 463, 467, 766 A.2d 950 (2001).
Petitioner's Exh. 14, March 16, 2001 (B) Transcript, p. 119.
The petitioner argues that there was insufficient evidence that he acted recklessly. "A person acts `recklessly' . . . when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . ." General Statutes § 53a-3(13). The petitioner contends that admitting to intentionally firing his gun at the victim and claiming self-defense precludes a finding that he acted recklessly. Several witnesses testified that immediately prior to the physical fight between the petitioner and the victim in the bar area they saw the petitioner put a gun to the victim's neck or head. Once the fight broke up, the petitioner went into the kitchen. As the victim entered the kitchen and moved toward the petitioner, the petitioner fired five more or less successive bullets at the victim. Three of the four bullets that struck the victim entered through his back. This conduct can constitute recklessness, as it demonstrates that the petitioner had the general intent to engage in conduct, i.e. putting a gun to the victim's neck or head in the bar area and then firing his gun directly at the victim five times as he came toward him in the kitchen, that created a grave risk of death to another person.
Petitioner's Exh. 10, February 28, 2001 Transcript, pp. 19-27, 80, 103-04.
As noted by the Supreme Court: "The testimony varied as to the exact sequence of the shots. Three witnesses testified that they heard a single shot followed by a short pause and then several shots in succession. Two other witnesses testified, however, that the shots were fired in succession." State v. Saunders, supra, 267 Conn. 367 n. 5.
Petitioner's Exh. 12, March 8, 2001 Transcript, pp. 93-105.
Moreover, the fact that the petitioner believed that he had to use such deadly force against the victim, who was unarmed and with whom he was not at a physical disadvantage, to protect himself also supports a finding that he acted recklessly. See, e.g., State v. Knighton, 7 Conn.App. 223, 237, 508 A.2d 772 (1986) ("the jury could have concluded that while the defendant did not intend to kill [the victim], his belief that he could protect himself only by firing four shots at [the victim] was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness"); see also State v. Maselli, 182 Conn. 66, 73, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981) ("[t]he jury might well have concluded that for the defendant to have believed under the circumstances revealed by the evidence that the victim was about to use deadly force upon him so that it was necessary to fire eight shots at point blank range was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness"). Accordingly, the trial court properly submitted the reckless manslaughter charge to the jury, and trial counsel had no reason to object.
Next, the petitioner claims that the trial court improperly instructed the jury to "decide one of them [intentional or reckless manslaughter in the first degree]" and that it essentially instructed the jury to deliberate until it found him guilty. "[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury . . . In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury." (Internal quotation marks omitted.) State v. Guzman, 125 Conn.App. 307, 314-15, 7 A.3d 435 (2010). "It is . . . the duty of the court to structure the jurors' deliberations in a manner that permits them to perform in an orderly fashion their fact finding function." (Internal quotation marks omitted.) State v. Owens, 100 Conn.App. 619, 633, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668 (2007).
The trial court instructed the jury that the petitioner was charged in one count with committing manslaughter in the first degree with a firearm in alternative ways. It stressed: "It's one count, alternative methods of committing the one crime." The court then instructed the jury on the elements of intentional manslaughter and reckless manslaughter in the first degree: the alternative ways in which the petitioner was charged with committing manslaughter in the first degree with a firearm. After the state expressed concern that the trial court did not adequately instruct the jury that it had to be unanimous on count one, the trial court reinstructed the jury as follows: "Your verdict on either alternative must be unanimous. If you decide on the intent, it must unanimous. Or if you decide on the reckless portion, it must be unanimous. All your verdicts must be unanimous. You do not need to decide clearly both of them, just decide one. Either intent based upon your view of the evidence and the law or the reckless based upon your view of the evidence and the law. Decide one of them."
Petitioner's Exh. 14, March 16, 2001 (B) Transcript, p. 113.
Petitioner's Exh. 14, March 16, 2001 (B) Transcript, pp. 154-55.
Contrary to the petitioner's contention, it was not improper for the trial court to instruct the jury to decide on only one of the ways in which the petitioner committed manslaughter in the first degree with a firearm. Where the state charges in the conjunctive that a defendant has committed a crime in more than one way the trial court must instruct the jury "that the state need only prove one of its allegations, and not all . . ." (Internal quotation marks omitted.) State v. Wohler, CT Page 5682 supra, 231 Conn. 415. That is, it is not necessary for the jury to determine whether the state proved both of its allegations.
In the petitioner's case, the jury could have and did find the defendant guilty of manslaughter in the first degree with a firearm based solely on its determination that the petitioner had committed reckless manslaughter. The jury's last note to the court read: "Judge Holden, with respect to the charge of manslaughter in the first degree with a firearm intentional conduct, we find the defendant not guilty. With respect to the charge of reckless indifference manslaughter first degree, we find the defendant guilty." Although, it was not necessary for the jury to decide both of the allegations, the jury's last note to the court reveals that it in fact did so in the petitioner's case. Accordingly, even if the court's instruction was improper, the petitioner suffered no prejudice.
Petitioner's Exh. 14, March 21, 2001 Transcript, p. 22.
The petitioner additionally argues that by finding him not guilty of intentional manslaughter in the first degree, the jury found that the state had failed to disprove his defense of self-defense. Consequently, he contends, citing to the acquittal first doctrine, that the jury should not have gone on to consider the reckless manslaughter charge. The petitioner is misguided in his arguments. First, the fact that the jury found him not guilty of committing manslaughter in the first degree with a firearm by committing intentional manslaughter in the first degree does not necessarily mean that the jury found that the state had failed to disprove his defense of self-defense. "Under a theory of self-defense, a criminal defendant basically admits engaging in the conduct at issue, but claims that that conduct was legally justified." State v. Collins, 100 Conn.App. 833, 849, 919 A.2d 1087, cert. denied, 284 Conn. 916, 931 A.2d 937 (2007). Admitting to engaging in the conduct at issue is not the same as admitting to having a specific intent. Intentional manslaughter in the first degree requires the specific intent to "cause serious physical injury to another person." General Statutes § 53a-55(a)(1). In instructing the jury on the elements of intentional manslaughter in the first degree, the trial court stated on numerous occasions that the state had to prove that the petitioner intended to cause serious physical injury to the victim. Notably, the petitioner never admitted in his statement to the police or otherwise that he intended to cause serious physical injury to the victim or to kill him. In fact, at the habeas trial, he testified that he did not intend to kill the victim but that he only intended to stop the victim from harming him. Irrespective of the petitioner's defense of self-defense, the jury could have found that the petitioner did not have the requisite intent to commit intentional manslaughter in the first degree and thus, was not guilty of such.
See Petitioner's Exh. 14, March 16, 2001 (B) Transcript, pp. 114-15. Despite this, the trial court did instruct the jury on general intent, referring to the intent to "engage in conduct." See Petitioner's Exh. 14, March 16, 2001 (B) Transcript, p. 116. The petitioner does not challenge this particular instruction. In any event, given the fact that the trial court properly instructed the jury on intent numerous times, it is not likely that the improper instruction (the "engage in conduct" language) misled the jury. See, e.g., State v. Aviles, 107 Conn.App. 209, 231, 944 A.2d 994, cert. denied, 287 Conn. 922, 951 A.2d 570 (2008).
Second, as articulated by the Supreme Court, there was sufficient evidence disproving the petitioner's claim of self-defense. See State v. Saunders, supra, 267 Conn. 368-78. Third, if the jury had in fact found that the petitioner was justified in his use of deadly physical force, it would have returned a not guilty verdict on all the charges. The trial court specifically instructed the jury that the defense of self-defense applied to all the charges. "The defense of self-defense is applicable to the . . . offenses of manslaughter in the first degree, General Statutes § 53a-55(a)(1) and (3) . . ." (Emphasis added.) State v. Harrison, 32 Conn.App. 687, 695, 631 A.2d 324, cert. denied, 227 Conn. 932, 632 A.2d 708 (1993). Fourth, since the state charged the petitioner in the conjunctive with committing manslaughter in the first degree with a firearm by committing intentional and reckless manslaughter in the first degree, it was not necessary for the jury to consider the alternative ways of committing the crime in any particular order. Reckless manslaughter in the first degree is not a lesser included offense of intentional manslaughter in the first degree in this context. Accordingly, the acquittal first rule does not apply. The acquittal first rule holds that "[o]nly after it has confronted and unanimously completed the difficult task of deciding the guilt or innocence of the accused as to the charged offense should the [fact finder] consider lesser included offenses." (Emphasis added; internal quotation marks omitted.) State v. Chimenti, 115 Conn.App. 207, 228, 972 A.2d 293, cert. denied, 293 Conn. 909, 978 A.2d 1111 (2009). Consequently, the jury could have considered the charges of intentional and reckless manslaughter in any order and was not precluded from considering the charge of reckless manslaughter upon finding the petitioner not guilty of intentional manslaughter.
Petitioner's Exh. 14, March 16, 2001 (B) Transcript, pp. 133-34, 155.
The petitioner's last claim with respect to the trial court's jury instructions is that the trial court essentially instructed the jury to deliberate until it found the petitioner guilty. There is no evidence of this. The trial court properly instructed the jury that it could not consider the lesser included offenses, manslaughter in the second degree and criminally negligent homicide, unless and until it found the petitioner not guilty on the first count. It further instructed the jury regarding the lesser included offenses as follows: "If you are unanimous in the not guilty on the manslaughter in the [second] degree then you would consider the criminally negligent homicide. If you're unanimous in that, of course, that ends your deliberation. And any guilty verdict ends your deliberations immediately." As noted supra, the acquittal first doctrine requires that the fact finder, in this case, the jury, consider the greater offense before the lesser included offense. Accordingly, the jury had a hierarchy to follow in its deliberations. The trial court properly instructed the jury that any guilty verdict ends its deliberations. That is, if the jury found the petitioner guilty of count one it was precluded from considering the lesser included offenses. To have rendered a not guilty verdict in the petitioner's case, the jury would have had to have considered and found the petitioner not guilty of manslaughter in the first degree with a firearm, manslaughter in the second degree and criminally negligent homicide, in that order. It strains reason to believe that the jury could have heard the trial court's instruction as requiring that it deliberate until it found the petitioner guilty. The court clearly instructed the jury that "[the presumption of innocence] continues with [the petitioner] throughout this trial unless and until such time as all the evidence . . . considered in the light of these instructions of law and deliberated upon by you in the jury room satisfies you beyond a reasonable doubt that he is guilty."
Petitioner's Exh. 14, March 16, 2001 (B) Transcript, p. 138.
Petitioner's Exh. 14, March 16, 2001 (B) Transcript, p. 101.
In light of the above, this Court finds that the petitioner has not met his burden in proving either deficient performance on the part of his trial attorney for failing to object to the trial court's jury instructions or prejudice resulting therefrom. This claim fails.
The petitioner next claims that Attorney Field should have objected to the admission of the 911 tapes at the criminal trial and that he should have objected to the subpoena issued to the petitioner's power of attorney during the first criminal trial. The petitioner contends that someone tampered with the 911 tapes admitted into evidence at his second criminal trial. There is no credible evidence before this Court that someone tampered with the 911 tapes. Accordingly, this claim lacks merit.
Similarly, the claim regarding the issuance of the subpoena to the petitioner's power of attorney lacks merit. At the habeas trial, the petitioner testified that Attorney Field did object to the subpoena. From the record, it appears that during the petitioner's first criminal trial Attorney Murray subpoenaed documents from Patricia Joy. She produced those documents. Attorney Field attempted to challenge the subpoena as overly broad but since he did not represent Joy he had no standing to challenge the subpoena. Attorney Murray testified at the habeas trial that he subpoenaed records from Joy, who was not a part of the petitioner's legal team nor an expert hired by the petitioner's attorney. He believed that she might possess evidence such as inculpatory letters written to her by the petitioner. Attorney Murray reviewed the documents obtained from her but did not find any letters or any other useful evidence. The record indicates that he returned the documents to Joy the day after receiving them and that he represented to the court that he had no intention of using any of them. There is no credible evidence before this Court that he did use any of the documents. Consequently, even if Attorney Field could have done more to object to the subpoena, the petitioner's case did not suffer any prejudice from his failure to do so.
Petitioner's Exh. 5, February 3, 2000 (B) Transcript, pp. 2-11.
As noted supra, the petitioner cites many other ways in which Attorney Field rendered ineffective assistance; however, since the petitioner has presented little to no evidence on these other claims and has not adequately briefed them, the Court declines to address them. See Raynor v. Commissioner of Correction, 177 Conn.App. 788, 796-97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) ("[r]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly").
Ineffective Assistance of Appellate Counsel
In addition to claiming that his trial counsel rendered ineffective assistance, the petitioner claims that his appellate counsel rendered ineffective assistance. "[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal." (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).
The petitioner specifically claims that his appellate counsel, Attorney Steele, rendered ineffective assistance by: (1) failing to challenge the substitute information; (2) failing to challenge the trial court's jury instructions; (3) failing to raise the issue of prosecutorial impropriety on direct appeal and (4) failing to raise a claim about information that the state presented at sentencing. In addition to these claims, the petitioner makes some other claims; however, since the petitioner presented little to no evidence on them and did not brief them, the Court declines to address them.
The petitioner also claims that Attorney Steele should have raised a claim regarding the trial court's failure to suppress his custodial statement and that the cumulative effect of her "errors" deprived him of a fair appeal.
The petitioner's first two claims more or less mirror those claims brought against trial counsel regarding the substitute information and the trial court's jury instructions. As discussed supra, these claims lack merit. It thereby follows that even if Attorney Steele raised this issues on direct appeal, there is no reasonable probability that the petitioner would have prevailed in his direct appeal. Accordingly, these claims fail.
Similarly, the petitioner's claim regarding the issue of prosecutorial impropriety fails. The petitioner alleges that appellate counsel should have raised on direct appeal the repeated acts of prosecutorial impropriety that occurred during his second trial. He alleges numerous acts of prosecutorial impropriety, including but not limited to, the fabrication of evidence, the destruction of evidence, the display of unsworn testimony to the jury and the misrepresentation of evidence and other improper arguments made during closing arguments. The petitioner has not presented credible evidence of most of these alleged acts of prosecutorial impropriety.
For example, the record reveals that Attorney Murray used some type of visual aid during his closing argument. During closing argument, he commented as follows: "This is a very complicated area of the law, self-defense; you will see that. And I've written down some of my thoughts so that you can see them as I speak them just to help you. Some of these thoughts that I have are propositions of law, and there's about ten of them, about ten or twelve sentences which are propositions of law, and I just want to get them out of the way early so you can get them in your mind; you can think about them later. The judge is going to talk to you . . . upon what the law is in this case . . . Let's start with it." At the habeas trial, Attorney Murray testified that he had no specific recollection of displaying his written thoughts to the jury but that he has used visual aids in the past in his closing arguments. Aside from the above, there is no evidence before this Court regarding the visual aid used by Attorney Murray in the petitioner's case. This Court cannot speculate as to the content or the affect, if any, that the aid had on the jury.
Petitioner's Exh. 14, March 16, 2001 (A) Transcript, p. 4.
Notably, there is no per se bar against the use of visual aids in closing arguments. See, e.g., State v. Camacho, 282 Conn. 328, 378, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S.Ct. 388, 169 L.Ed.2d 273 (2007) ("no court has erected a per se bar to the use of visual aids by counsel during closing arguments. On the contrary, the use of such aids is a matter entrusted to the sound discretion of the trial court" [internal quotation marks omitted]). The petitioner acknowledges this but argues that such aids cannot be used to display propositions of law which he claims amount to unsworn testimony. While it appears that Attorney Murray may have displayed his "propositions of law" to the jury, there is no evidence before this Court that they were misstatements of the law. Moreover, during his closing argument and again during its instructions to the jury, the court instructed the jury that the law comes solely from the court and that the jury is bound by the court's legal instructions. "[A]bsent clear evidence to the contrary, we presume that the jury followed the court's instructions." State v. Nance, 119 Conn.App. 392, 405, 987 A.2d 376, cert. denied, 295 Conn. 924, 991 A.2d 569 (2010). Accordingly, even if Attorney Murray improperly displayed propositions of law to the jury, no prejudice resulted therefrom. It thereby follows that Attorney Steele did not render ineffective assistance by failing to raise this claim on appeal.
Petitioner's Exh. 14, March 16, 2001 (A), p. 30 ("[l]adies and gentlemen, you will be advised that the law again comes from the Court and you are bound by the Court's legal instructions"); Petitioner's Exh. 14, March 16, 2001 (B), p. 98 ("[i]t is exclusively the function of this Court to state the rules of law that govern the case with instructions as to how you are to apply them. It is your obligation to accept the law as I state it").
Similarly, Attorney Steele did not render ineffective assistance by failing to raise the petitioner's other claims of prosecutorial impropriety on direct appeal. At the habeas trial, Attorney Steele testified that she practices almost exclusively in the field of appellate criminal defense. She stated that after thoroughly reviewing the record in the petitioner's case, she identified four issues to raise on appeal: (1) the sufficiency of the evidence disproving the petitioner's claim of self-defense, (2) the exclusion of expert testimony by the trial court, (3) a claim of double jeopardy and (4) prosecutorial misconduct during closing arguments. Ultimately, Attorney Steele only raised the first three issues on direct appeal. She explained that she did not raise the issue of prosecutorial impropriety on appeal because she could only raise so many issues on direct appeal, and she believed the other issues were stronger. She specifically stated that she believed the petitioner had a strong self-defense case and that by raising a sufficiency of the evidence claim as opposed to a prosecutorial impropriety claim, she could get defense groups to write amicus curiae briefs supporting the petitioner's claim of self-defense, and if successful the sufficiency claim would result in the petitioner's release whereas a successful prosecutorial impropriety claim would merely result in a new trial. She also stated she had doubts whether the prosecutorial impropriety claim would be successful. In short, Attorney Steele made a tactical decision not to raise the issue on direct appeal.
See footnote 3.
"The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client . . . By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client's appeal." (Citation omitted.) Valeriano v. Bronson, 12 Conn.App. 385, 390, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988). "[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel. Legal contentions, like the currency, depreciate through over-issue . . . [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one . . . The effect of adding weak arguments will be to dilute the force of the stronger ones." (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010). The petitioner has failed to meet his burden in proving deficient performance and prejudice resulting therefrom by Attorney Steele's failure to raise the issue of prosecutorial impropriety on direct appeal. There is no evidence before this Court demonstrating that Attorney Steele's tactical decision was unreasonable or that there is a reasonable probability that had she raised this issue, the petitioner would have prevailed on appeal.
Lastly, the petitioner claims that Attorney Steele should have raised a claim that the trial court denied him his right to confront his accusers by considering allegedly false statements made by Brad and Karen Bauer at his sentencing. This claim likewise fails.
"Generally, due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial . . . Moreover, both the United States Supreme Court and our Supreme Court have recognized that a defendant is not entitled, under the due process clause, to cross-examine witnesses in a sentencing hearing.
"In sentencing an individual who has been convicted of a crime, judges may consider a wide variety of information . . . Consistent with due process the trial court may consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the convicted person's life and circumstance . . . It is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come . . .
"The trial court, however, does not have unfettered discretion. As a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability." (Citations omitted; internal quotation marks omitted.) State v. Carter, 48 Conn.App. 492, 496-97, 710 A.2d 1371 (1998). "Indeed, our rules of practice are intended to ensure that a defendant receives process that he is due during sentencing. See Practice Book § 43-10(1); see also Practice Book § 43-16 (providing for submission of supplemental documents by defense counsel)." State v. Arthur H., 288 Conn. 582, 606-07, 953 A.2d 630 (2008).
The record reveals that on the day of sentencing the state provided a statement made by Brad Bauer and his spouse to the trial court for its consideration. The statement apparently alleged that the petitioner brandished a gun at their residence in the 1980s. Attorney Field filed a motion, requesting that the trial court not consider the statement and for a continuance in order to arrange for a witness who could rebut the allegations in the statement to speak during the petitioner's sentencing hearing. Brad Bauer was present at the petitioner's sentencing hearing and apparently willing to speak about the contents of his statement. The trial court denied Attorney Field's motion. Both Attorney Murray and Attorney Field did not discuss the contents of the statement during their remarks to the trial court. Nor did Brad Bauer address the court. In sentencing the petitioner, other than indicating that it reviewed all the documents submitted by the parties, the trial court did not mention the statement. Based upon the above, this Court finds that the trial court did not directly rely, if it relied at all, on the statement made by the Bauers in sentencing the petitioner and that the petitioner was afforded due process, as Attorney Field had an opportunity to and did attempt to controvert the statement made by the Bauers.
Petitioner's Exh. 15, May 30, 2001 (A), pp. 4-9.
Petitioner's Exh. 15, May 30, 2001 (A), pp. 27-66.
Petitioner's Exh. 15, May 30, 2001 (A), pp. 73-82.
CT Page 5690
CONCLUSION
Based on the foregoing, the petition for a writ of habeas corpus is denied.Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.