Opinion
No. CV 00-0439115 S
October 10, 2003
MEMORANDUM OF DECISION
The petitioner Hollis Wilson filed an Amended Petition for a Writ of Habeas Corpus. The petition alleges the following four counts: (1) prosecutorial misconduct; (2) ineffective assistance of trial counsel; (3) ineffective assistance of appellate counsel; (4) ineffective assistance of habeas counsel.
On October 28, 1992, the petitioner was arrested and charged with the offense of sexual assault and burglary. The criminal charges were tried to a jury, and the defendant was convicted of sexual assault in the first degree, and burglary in the second degree. Judge McKeever sentenced the petitioner to twenty years for the sexual assault, and five years for the burglary with the sentences to be served consecutively. The total effective sentence was twenty-five years. Attorney Miles Gerety was the trial attorney for the petitioner, and his appellate attorney after the conviction was Donald Dakers.
At the habeas hearing the petitioner introduced as exhibits the transcript of the trial, and the opinion of the Appellate Court. The petitioner contended the prosecution at the trial was flagrantly egregious when on cross-examination he asked the petitioner "how many children do you have?" Attorney Gerety objected to the question because it was outside the scope of the direct and irrelevant. The trial judge overruled the objection, and the petitioner testified he had nine children. When the prosecutor then asked if he supported them, and Attorney Gerety's objection was sustained, a response of "Yes" remained on the record. The questions and responses appear on pages 195-96 of Petitioner's Exhibit 1. Counsel for the petitioner contends Attorney Gerety was ineffective in failing to request a mistrial or to ask for a curative instruction from the trial judge.
The trial brief of the petitioner refers to the following claims:
1. Was the prosecutorial misconduct egregious? CT Page 11453
2. Was trial counsel ineffective?
3. Was appellant counsel ineffective on the issue of prosecutorial misconduct?
The petitioner contends trial counsel was ineffective in failing to request a mistrial or to ask for a curative instruction for his failure to address what he contends was a "flagrant breach of prosecutorial conduct." To support this claim petitioner presented the opinion of his expert on criminal trial practice. On cross-examination this expert conceded that trial tactics of the defense counsel had to consider the reaction of the jury, as well as avoiding an adverse reaction by the trial judge. The testimony of trial counsel for the petitioner, who was an experienced public defender, who felt the defense of consensual sex was the proper trial strategy. He testified the question and its response was favorable to the petitioner by establishing his support of nine children. He also testified the questions and responses after his objection was overruled related to the cultural conditions, and it established the defendant had a likeable personality which established he had no need to commit a sexual assault. Attorney Gerety testified that although the questions were irrelevant it still was not inflammatory and did not constitute prosecutorial misconduct, or egregious conduct.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.
Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims:
The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (1989). He must also show "that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial." Herbert v. Manson, 199 Conn. 43, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). Williams v. Bronson, 21 Conn. App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge. ( Strickland, supra). The petitioner's claims must be evaluated in light of these standards.
The petitioner also contends that appellate counsel Donald Dakers was ineffective in not adequately addressing the issue of prosecutorial misconduct. In the decision on the appeal reported in State v. Wilson, 38 Conn. App. 231, 235-36, it was stated as follows:
Defense counsel informed the Appellate Court that, although it was briefed, he would not argue the prosecutorial misconduct claim. Our examination of the record discloses that the claim does not constitute a pattern of repeated, strident and serious misconduct. An isolated brief episode does not warrant reversal. State v. Smith, 209 Conn. 423, 428, 551 A.2d 742 (1988). The claim has no merit.
Attached to the trial brief of the petitioner is a portion of the appellant's brief referring to the questions which were claimed to be prosecutorial misconduct. The brief argues the defendant's character was discredited, and his credibility was reflected in the series of questions posed by the prosecutor. Appellant counsel contended the course of conduct of the prosecutor was egregious and it denied the defendant's right to a fair trial.
The petitioner now argues the appellate counsel never adequately briefed the issue of prosecutorial misconduct. Petitioner refers to State v. Ferrone, 96 Conn. 16d (1921); State v. Ubadi, 190 Conn. 559, 561, State v. Binet, 192 Conn. 618 (1984), and Whalley v. State of Connecticut, 414 F. Sup. 1115 (1976), as supporting the contention that the misconduct did not have to be pervasive, and that one instance of such misconduct is sufficient if egregious.
The Appellate Court in addressing Attorney Daker's argument regarding the claimed egregious misconduct of the prosecutor cited State v. Smith, 209 Conn. 423, 428. That legal opinion clearly indicated that the record must disclose a pattern of repeated, strident and serious misconduct by the prosecutor. That court found that such a pattern of conduct did not exist in this case and the claim of the petitioner related to an isolated brief episode. The appellate court did not conclude the questions asked constituted egregious misconduct.
The conclusions of the appellate court based upon the record and brief filed by the appellate counsel has been reaffirmed in the case of State v. Wicker, 72 Conn. App. 380, 401. In that case it was stated that in the absence of showing a pattern of misconduct, or such egregious conduct to substantially prejudice the defendant's right to a fair trial the isolated brief line of questions does not constitute a denial of petitioner's right to a fair trial. The questions addressed to the petitioner only related to a critical issue of credibility and as stated in the appellate brief his credibility had been tarnished at the trial by evidence of his four prior felony convictions.
Attorney Dakers, an experienced appellate attorney, had handled many appellate briefs and had worked on about 20 to 30 habeas appeals. Based upon his experience he concluded prosecutorial misconduct occurred in the series of questions asked of the defendant in cross-examination, and he made that argument to the Appellate Court.
The standard governing ineffective assistance of appellate counsel requires the petitioner to establish (1) that his appellate counsel's performance fell below the required standard or reasonable competence or competency displayed by lawyers with ordinary training and skill in the criminal law, and (2) that this lack of competency contributed so significantly to the affirmance of his conviction as to have deprived him of a fair appeal, thus causing an unreliable conviction to stand. Valeriano v. Bronson, 209 Conn. 75, 84-86; Strickland v. Washington, 466 U.S. 668, 687. "While an appellate advocate must provide effective assistance, he is not under an obligation to raise very conceivable issue." Fellman v. Commissioner of Corrections, 54 Conn. App. 749, 757. "A reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Cosby v. Commissioner of Correction, 57 Conn. App. 258, 261. 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." Johnson v. Commissioner of Correction, 222 Conn. 87, 92.
The evidence presented by the petitioner does not establish ineffective assistance of trial counsel or appellant counsel. It also fails to prove that either attorneys lack of competency contributed significantly to deprive the petitioner of the right to a fair trial. The petitioner has failed to sustain his burden of proving counsel's representations fell below the standard of reasonableness or that there was a reasonable probability that but for the performance of either attorney the result would have been different.
For the foregoing reasons the relief sought by the petitioner is denied, and the petition is dismissed.
Howard F. Zoarski Judge Trial Referee