Opinion
No. TSR CV 08 4002747
September 13, 2011
MEMORANDUM OF DECISION
In 1977, our Supreme Court held that the crime of kidnapping first degree under General Statutes § 53a-92(a)(2) was committed even though the restraint employed was merely incidental or subsidiary to an underlying felony, such as robbery or sexual assault, State v. Chetcuti, 173 Conn. 165, 167-68 (1977). Thirty-one years later, the Supreme Court overruled the Chetcuti decision and accepted a variation of the merger doctrine regarding kidnappings, State v. Salamon, 287 Conn. 509, 513 (2008).
A question arose as to whether the new interpretation of § 53a-92(a)(2) applied retroactively to allow a habeas petitioner, convicted under the old construction of the statute, to challenge incarceration resulting from that kidnapping conviction. Recently, the Supreme Court sanctioned such habeas relief in Luurtsema v. Commissioner, 299 Conn. 740, 743 (2011), deciding that the Salamon reinterpretation was retroactive and could subject the conviction to collateral attack. Id.
The habeas corpus action before this court presents an issue absent, and therefore never discussed by the Supreme Court, in Luurtsema v. Commissioner, supra. The question is whether the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977), bars the petitioner, Lawrence R. Smith, from raising the impropriety of his 1989 kidnapping first degree conviction despite the retroactivity as explicated by Luurtsema v. Commissioner, supra.
The petitioner stands convicted, after a jury trial, of kidnapping first degree, robbery third degree, larceny second degree, and assault third degree for which crimes he received a total, effective sentence of thirty-five years imprisonment. His convictions were affirmed on direct appeal, 219 Conn. 160 (1991). The facts of the underlying criminal case are sufficiently stated in that decision and repetition of them is unnecessary in light of the respondent's concessions.
The respondent agrees that the jury at the petitioner's trial was instructed as to the statutory definition of kidnapping without the benefit of the new interpretation adopted by Salamon nineteen years later. The respondent also concurs that the sole issue before this court is whether the petitioner has met his burden of proving cause and prejudice to excuse his failure to raise that particular deficiency of the jury charge at his criminal trial and on direct appeal. The respondent alleged procedural default in this regard in its reply, and it is undisputed that petitioner's trial and appellate attorneys never raised the issue during the criminal proceedings. It is also uncontroverted that the evidence at the petitioner's criminal trial would have warranted the Salamon instruction.
The habeas petitioner in Luurtsema v. Commissioner, supra, had specifically, albeit unsuccessfully, invited the Supreme Court to depart from the Chetcuti holding and determine that an impairment of movement which was integral to the commission of some other felony did not constitute kidnapping under § 53a-92(a)(2), State v. Luurtsema, 262 Conn. 179, 202-03 (2002). Consequently, the Supreme Court never had occasion in Luurtsema v. Commissioner, supra, to consider the effect of procedural default with respect to the retroactive application of Salamon.
Under the cause and prejudice criteria of Wainwright, a habeas petitioner is prohibited from raising for the first time claims of legal defects which occurred at the criminal trial level, including constitutional deprivations, unless the habeas petitioner can demonstrate good cause for the default and actual prejudice sustained as a result. Johnson v. Commissioner, 218 Conn. 403, 417 (1991). These hurdles also apply equally to claims which could have been presented on direct appeal. Jackson v. Commissioner, 227 Conn. 124, 132 (1993).
While ignorance or incompetence of counsel may constitute ineffective assistance which may, and sometimes must, be raised in a habeas action, such ignorance or incompetence of counsel is not good cause under the Wainwright analysis, Johnson v. Commissioner, supra, 422. The existence of good cause for a procedural default either at trial or on appeal must derive from "some objective factor external to the defense [which] impeded [the petitioner's] efforts to comply with the state's procedural rule." Crawford v. Commissioner, 294 Conn. 165, 191 (2009).
Unlike the petitioner in Luurtsema v. Commissioner, supra, a review of the trial transcripts discloses that the petitioner in the present case never requested a jury instruction on kidnapping which conformed to that subsequently adopted by our Supreme Court in Salamon, nor did he object to the jury instructions which were given in his case. Also, the petitioner never raised this particular claim on appeal, see State v. Smith, supra, 161-62. The petitioner contends that he had good cause for failing to request that the merger doctrine be incorporated into Connecticut jurisprudence. That cause was the futility of raising such a claim at his criminal trial and on direct appeal based on the Supreme Court's consistent position refusing to recognize any such modification.
The respondent counters that the novelty of a claim is insufficient to excuse the failure to raise the issue under the cause and prejudice evaluation required under Wainwright. Indeed, in both Johnson v. Commissioner, supra and Jackson v. Commissioner, supra, which decisions adopted the Wainwright cause and prejudice standard as part of Connecticut habeas law, our Supreme Court rebuffed similar contentions by the habeas petitioners with respect to the constitutionality of General Statutes § 51-220. Section 51-220 purportedly imposed a discriminatory "quota" system on the process for summoning individuals for jury duty.
A comparison of the circumstances surrounding the belated claims made in the Johnson and Jackson cases with those attendant to the petitioner's case is warranted. In Johnson and Jackson, the petitioners wished to invalidate their convictions by proving that the jury pool mechanism under § 51-220 mandated quotas for venire persons from each town within the New Haven judicial district which skewed the demographic make-up of the pool to minimize minority participation as jurors to a disproportionate degree.
This claim had been asserted and rejected by our Supreme Court in State v. Haskins, 188 Conn. 432 (1982), cert. denied, 479 U.S. 1084 (1982). The defendants in Haskins then sought federal habeas review. The United States District Court agreed with their arguments that the selection procedure under § 51-220 denied the petitioners equal protection under the Fourteenth Amendment to the U.S. constitution, and the Second Circuit affirmed that result. Alston v. Manson, 791 F.2d 255 (2d Cir. 1986).
Critical to the Second Circuit decision was that the state court ruling has erroneously applied Sixth Amendment, fair cross-section of the community analysis instead of evaluating the claims more appropriately under the equal protection clause. Id., 258-59. Our Supreme Court had earlier reached a similarly, erroneous conclusion in State v. Townsend, 167 Conn. 539, 548-50 (1975), cert. denied, 423 U.S. 846 (1975).
The petitioners in Johnson and Jackson argued that the new, Second Circuit decision, holding § 51-220 to be impermissibly discriminatory, should justify overturning their convictions through habeas corpus despite the fact that they had never made the equal protection argument at their criminal trial, in the Johnson case, and on direct appeal, in the Jackson case. In Johnson v. Commissioner, supra, our Supreme Court expressly adopted the cause and prejudice criteria of Wainwright regarding collateral attacks on convictions based on claims that were never presented at the criminal trial. Id., 417.
Those petitioners argued that the state Supreme Court decisions in State v. Townsend, supra, and State v. Haskins, supra, made a similar claim in their cases futile and constituted good cause for eschewing such claims in their criminal proceedings. The Supreme Court disagreed that its previous adverse decisions established good cause under Wainwright.
The Supreme Court observed that the underrepresentation claim was insufficiently novel to excuse the failure to assert it at the criminal trial, Johnson v. Commissioner, supra, 421. The Supreme Court in the earlier, unfavorable decisions of that Court regarding the constitutionality of § 51-220 were based more on a lack of evidentiary support rather than as a matter of law alone. Id. The Court denied that its decisions in Townsend and Haskins created "settled law in Connecticut," which rendered future attack on the validity of § 51-220 futile. Id.
But our Supreme Court went further and stated, "even if the [habeas] court's assumptions were correct concerning the inevitable outcome of motions to challenge the array in this state at the time the petitioners were tried, the futility of presenting such a challenge in a state court is not a sufficient excuse for failure to do so at trial." Id., 421-22. A habeas petitioner "may not bypass the state courts simply because he thinks they will be unsympathetic to the claim," Id. "Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid." Id., 422.
At first blush, these comments in Johnson may appear dispositive, but they must be tempered by other observations regarding the futility argument made by the Supreme Court earlier and later in Johnson. Quoting Reed v. Ross, 468 U.S. 1, 14 (1984), the Johnson decision remarked, "failure to raise a claim for which there was no reasonable basis in existing law does not seriously implicate any of the concerns that might otherwise require deference to a state's procedural bar." Johnson v. Commissioner, supra, 420 (emphasis added). Later in that opinion, the Supreme Court noted that "it can hardly be contended that there was no reasonable basis for challenging a jury array upon the ground that a statute, such as 51-220, might have a disproportionate impact on the availability of minority jurors." Id., 422 (emphasis added).
The Supreme Court emphasized that the Townsend decision did not "categorically" reject such a challenge. Id. Furthermore, the Court held that the Second Circuit in Alston v. Manson, supra, "did not purport to expound any new constitutional principles but merely upheld the findings of the federal district court . . ." Id., 423. "The only novelty in the Alston decision was the success of the defendants in persuading the federal [courts] to conclude that a presumption of intentional discrimination . . . was warranted because of the disparate impact of 51-220 . . ." Id.
Finally, the Supreme Court concluded "that the habeas court was incorrect in finding that there was no reasonable basis for raising a challenge to the array grounded upon 51-220 at the time of the petitioner's trials . . ." Id. 423. "Accordingly, the petitioners have failed to demonstrate that there was a good cause for their failure to challenge the jury arrays before trial," Id.
As these quotes from Johnson reveal, the Supreme Court used the phrase "no reasonable basis" at least three times with respect to futility as good cause under Wainwright. In other words, adverse prior case law may or may not create futility adequate to establish good cause to excuse procedural default. The key is whether the defense in the criminal proceeding had or lacked a reasonable basis for raising the putative claim, and previous case law is only part of the equation that determines the absence of a reasonable basis for raising that particular claim. No black or white rule obtains as to futility. Every modification of existing case law will have its unique history, and each petitioner his or her unique place in that particular judicial evolution.
In assessing futility as good cause, the court should consider, in determining the absence of a reasonable basis for asserting a challenge, such factors as whether the change in the law was truly novel; whether case law "categorically" rejected previous challenges or was premised on an inadequate record or factual underpinnings; whether previous decisions were regarded as "settled law" or were in a state of flux; and whether the change affected substantive law rather than criminal procedure. These factors, among others, may overlap and will depend on how long a precedent has existed, how frequently or infrequently that precedent has been challenged in this state or other jurisdictions, and with what results.
Applying this scrutiny to the circumstances of the petitioner's case, the court determines that he has met his burden of proving, by a preponderance of the evidence, that good cause existed for the failure of his defense to assail the previously adjudicated interpretation of § CT Page 19800 53a-92(a)(2) as expounded by our Supreme Court in Chetcuti. The court also finds that the petitioner sustained actual prejudice by virtue of having his criminal case decided under the later-abrogated interpretation of kidnapping.
First, the Salamon decision altered substantive criminal law by determining that conduct previously regarded as the crime of kidnapping under § 53a-92(a)(2) was no violation of the kidnapping statute at all. In contrast, the jury array cases questioned the procedure by which prospective jurors were summoned. "Salamon made a substantive determination when it defined the elements of kidnapping under § 53a-92(a)(2)(A)," Luurtsema v. Commissioner, supra, 753.
As a rationale cited by the Supreme Court in conferring retroactivity to the Salamon reinterpretation of § 53a-92(a)(2) in Luurtsema v. Commissioner, supra, that Court posited that "considerations of finality simply cannot justify the continued incarceration of someone, who did not commit the crime of which he stands convicted," Id., 759. This pronouncement weighs heavily in favor of the habeas petitioner both as to the existence of good cause and the prejudicial impact of the absence of the correct jury instruction regarding the crime of kidnapping. This passage strongly suggests that no one should endure further imprisonment after the activity for which the person was convicted is declared noncriminal. Consequently, this decision need comment no further on the issue of actual prejudice.
To request a substantive shift in the criminal law, the task before the petitioner at his criminal trial and direct appeal would have been, in 1989, a daunting one. While considerations of procedural fairness often evolve over time through judicial decision-making, changes as to the definition of criminal conduct usually are the product of the legislative prerogative.
Second, the reach of § 53a-92(a)(2) under Chetcuti in 1977 was a categorical rejection of the proposition that kidnapping merged into the underlying crime when the restriction on movement was essentially part of underlying offense. In Chetcuti, the Supreme Court declared "(t)he language of the statutes is clear and does not lend itself to any equivocal interpretation. It sufficiently warns the ordinary person in clear and concise terms of the prohibited conduct intended. There is no merit to this claim [of merger]," Id., 168 (emphasis added). The holding in Chetcuti was strictly grounded on the text of the statute and was not dependent on linguistic ambiguity, factual deficiency, or legislative history.
By comparison, the basis for the refusal to find good cause in Johnson and Jackson hinged, in part, on the relative weakness of the statistical evidence in the prior state court decisions and the failure to scrutinize that evidence under the correct constitutional provision. As noted above, the Johnson decision remarked that the Townsend and Haskins decisions did not categorically spurn the denial of equal protection claims.
Third, the kidnapping cases after Chetcuti gave little indication that that ruling was suspect. As the dissent commented in State v. Salamon, supra, the prior interpretation "has been consistently affirmed by this court and nearly always by a unanimous decision," Id., 596. Justice Zarella also observed in his dissent that "the legislature has remained silent throughout this time despite several opportunities to alter this court's construction of the statutory scheme," Id., 597; and that the length of time that the Chetcuti holding resisted change was "significant." Id. 595. The Salamon decision was a dramatic change in the well settled law of Connecticut. See State v. Vass, 191 Conn. 604, 616 (1983), which characterized the Chetcuti holding as a "settled rule"; and State v. Luurtsema, supra, 204-05, in which Justice Borden in his concurrence stated that the Chetcuti decision was "well-established."
It should be noted that when the petitioner was tried in 1989, Chetcuti had been the prevailing law on this issue for twelve years. That interpretation of § 53a-92(a)(2) remained in force for thirty-one years. The overruling of Chetcuti by Salamon occurred nineteen years after the petitioner was convicted under the former interpretation of § 53a-92(a)(2).
It is true that the merger doctrine was in the air before and around the time of the petitioner's criminal proceedings. The court's research discloses at least seven appellate cases which preceded the petitioner's criminal trial and in which the appellant argued that the Chetcuti ruling ought to be discarded and replaced by the more "modern" view of kidnapping, State v. Lee, 179 Conn. 328, 344 (1979); State v. Briggs, 179 Conn. 328, 338 (1979); State v. Johnson, 185 Conn. 163, 177-78 (1981); State v. Bell, 188 Conn. 406, 417 (1982); State v. Vass, 191 Conn. 604, 615 (1983); State v. Amarillo, 198 Conn. 285, 304-05 (1986); and State v. Burak, 12 Conn.App. 613, 615 (1987). While this series of cases shows that the merger doctrine was known to the defense bar in Connecticut well before 1989, it also demonstrates that our Supreme Court was steadfast in its adherence to the Chetcuti decision. In the legal climate prevailing in Connecticut in 1989, asking the Supreme Court to abandon Chetcuti must have appeared futile.
Also, in the appellate courts following the petitioner's 1989 conviction for kidnapping first degree, five decisions were rendered which refused to adopt the merger doctrine, State v. Smart, 37 Conn.App. 360, 371 (1995); State v. Green, 55 Conn.App. 706, 715-16 (1999); State v. Wilcox, 254 Conn. 441, 464-65 (2000); State v. Luurtsema, supra, 200-01 (2002); and State v. Dejesus, 91 Conn.App. 47, 87-88 (2005). There was no dissent on this issue until State v. Luurtsema, supra, in 2002.
The cases just cited show that it was procedurally possible for the petitioner to have raised the merger claim in 1989, but that success was highly improbable. The Supreme Court declined the invitation to revisit Chetcuti repeatedly and emphatically when the petitioner's criminal trial took place. Our Supreme Court has occasionally criticized appellate advocacy that employs "a shotgun approach [which] does a disservice both to this court and to the party on whose behalf it is presented." Kilduff v. Adams, Inc., 219 Conn. 314, 319 fn 5 (1991). The Appellate Court has admonished counsel to avoid swamping strong claims by joining them with weak ones. Watson v. Commissioner, 111 Conn.App. 160, 168 (2008). It is hard to fault petitioner's criminal defense counsel for winnowing out what must have seemed at the time to be a lost cause, and one which lacked a reasonable basis in light of the plethora of contrary precedent. This court concludes that, by virtue of the futility recounted above, the petitioner has met, by a preponderance of the evidence, the good cause component of Wainwright. Consequently, the failure to raise the issue during his criminal trial and appeal is no bar to habeas corpus relief based on Luurtsema v. Commissioner, supra.
The court grants the petition to the extent that the petitioner's 1989 conviction and sentence for kidnapping first degree in violation of § 53a-92(a)(2)(A) are vacated, and his case is remanded to the criminal division of the Hartford judicial district for retrial on that charge and the establishing of bond conditions under appropriate law and procedure.