Opinion
No. CV 02 0469954 S
June 22, 2005
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
In this habeas corpus petition the petitioner alleges ineffective assistance of both trial counsel and appellate counsel.
The claims result from his convictions in the Bridgeport Superior Court after a jury trial of the charges of Burglary in the First Degree, Risk of Injury (2 counts) and Criminal Mischief in the First Degree. On the burglary count, he was sentenced to serve 15 years, with execution suspended after the service of 7 years. He received two sentences of 7 years each on the two risk of injury counts and a sentence of 5 years on the criminal mischief count, these latter 3 counts to run concurrently with the burglary count and with each other for a total effective sentence of 15 years, suspended after 7.
After trial, the petitioner was appointed appellate counsel. The latter opted to file an Anders brief and was permitted to withdraw his appearance by the court. The petitioner proceeded pro se and the convictions were affirmed.
The petitioner was arrested on July 1, 2000 in Monroe and was tried and convicted in the Superior Court in Bridgeport. Sentencing occurred on September 21, 2001.
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. 143, 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.
DISCUSSION I As to the Alleged Ineffective Assistance of Trial Counsel
To properly evaluate counsel's performance, it is necessary to assess the state's case in chief. In the process, one realizes that the petitioner does not yet feel he has done anything wrong and is not at all responsible for his actions. This conclusion is compelled by his criminal trial testimony, his habeas trial testimony, his pro se pleadings, and his remarks to the criminal trial judge.
The petitioner was apprehended by police officers as he left the residence of his employers. He had virtually destroyed three levels of the house, breaking every window, attacking fixtures and appliances, and damaging plumbing in the course of a rampage, heard by the two children of the owner who sought refuge behind a basement partition. Damage was stated at one point to be in the area of $50,000.
Testifying in support of his petition, the petitioner described a defense lawyer who had virtually no discussions with him, did nothing in his behalf, ignored his requests to speak to witnesses and told him he would be serving time.
This last point is past contradiction as the evidence against the petitioner was overwhelming and one cannot imagine his being released on bond or receiving a suspended sentence.
His credibility was virtually destroyed by his trial counsel's testimony in the habeas trial. Counsel appeared with a rather hefty file (especially for an open and shut case) and proceeded to rebut the petitioner's allegations, either by items in his file or by reference to notes.
The petitioner's insistence that counsel call his father as a witness is typical of his view of the case. The father was not present to witness the episode the petitioner felt was significant. The petitioner's defense could be characterized as "he (the employer) had it coming to him," but the most that can be said of his fanciful explanations for his actions is that they constituted mitigating circumstances, but were hardly exculpatory. Counsel's attempts to obtain cooperation from the petitioner's family were unavailing.
Basically, the petitioner never denied committing the offenses but relied on his drug and alcohol abuse and the provocation of the employer.
Trial counsel addressed the petitioner's mental condition via the court clinic route and had an evaluation from the Department of Mental Health. It was clear that the petitioner did not have any prospect for a diversion program or other alternatives to incarceration.
The court finds nothing to suggest that there was merit to the petition insofar as counsel's pre-trial efforts are concerned.
A reading of the trial transcript reveals no instances of ineffective assistance of counsel in the course of this trial. In fact, trial counsel, confronted with an impossible chore, appears to have made every attempt to soften the image of the petitioner. Unfortunately, his efforts could only address possible mitigating factors. There was a total absence of exculpatory factors in this case.
The petitioner argued that trial counsel's motion to dismiss the risk of injury counts was not aggressively or thoroughly presented. Actually, this is ironic, since the argument made by trial counsel is a restatement of the theory concerning § 53-21 the petitioner urges this court to adopt. The motion was denied through no fault of counsel, as will be discussed in assessing the claims against appellate counsel. Similarly, counsel's failure to except to the charge treating with § 53-21 will be addressed below.
Finally, it must be noted that a criminal law expert, Attorney Thomas Farver, presented by the petitioner, repeated no instance of ineffective assistance of trial counsel.
II As to the Alleged Ineffective Assistance of Appellate Counsel
The petitioner alleges that he was provided with ineffective assistance of counsel because his appellate attorney filed an Anders brief which resulted in his being permitted to withdraw. The petitioner proceeded on his appeal pro se which was denied. The petitioner claims that the appellate counsel erred in failing to pursue an actionable appeal.
Appellate counsel is alleged to have refused to press on appeal that the petitioner was convicted under the wrong provision of the statute. The petitioner argues that he should not have been convicted under the "second prong" provision of risk of injury under General Statutes § 53-21(1) because it requires some amount of contact or touching by the perpetrator.
Section 53-21 provides in pertinent part; "a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, or (3) permanently transfers the legal or physical custody of a child under the age of sixteen years to another person for money or other valuable consideration or acquires or receives the legal or physical custody of a child under the age of sixteen years from another person upon payment of money or other valuable consideration to such other person or a third person, except in connection with an adoption proceeding that complies with the provisions of chapter 803, shall be guilty of a class C felony for a violation of subdivision (1) or (3) of this subsection and a class B felony for a violation of subdivision (2) of this subsection."
The petitioner was charged and tried under an information accusing him of violating the statute by committing "any act likely to impair the health or morals . . ." of the two children. The court's charge dealt with the particular language and in toto represented a fair and accurate statement of the law. It did include language to the effect that physical contact was not required to constitute a violation of this nature.
"Our Supreme Court has adopted that two-part analysis in reviewing claims of ineffective assistance of appellate counsel . . . The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [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 . . . The right to counsel is not the right to perfect representation . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . . Most cases present only one, two, or three significant questions . . . The effect of adding weak arguments will be to dilute the force of the stronger ones . . . Our Supreme Court has stated that [i]t is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Citations omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 87 Conn.App. 560, 562-64, 867 A.2d 51, cert. denied, 273 Conn. 934 (2005).
"Even if a petitioner shows that counsel's performance was deficient, the second prong, or prejudice prong, requires that the petitioner show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . Therefore, [a] habeas court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance; if the claim may be disposed of on the ground of an insufficient showing of prejudice." (Internal quotation marks omitted.) Lemoine v. Commissioner of Correction, 73 Conn.App. 669, 675, 808 A.2d 1194 (2002), cert. denied, 262 Conn. 932, 815 A.2d 133 (2003). "To satisfy the prejudice prong, a petitioner must, thus, establish that, as a result of appellate counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, he must establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt. In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel's deficient performance, but also that there is a reasonable probability that the trial verdict would have been different." (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, supra, 87 Conn.App. 564.
The petitioner argued during his habeas trial that since physical contact with the children is required under the statute, appellate counsel was ineffective in not appealing the conviction on that theory. The petitioner has to provide a reasonable possibility that if the appeal had been pursued on those grounds the Appellate Court would have overturned the conviction.
The petitioner relies on a recent Supreme Court decision to support his argument that the act prong of the statute requires physical contact with the victim. In State v. Robert H., 273 Conn. 56, 866 A.2d 255 (2005), the defendant's conviction under the act prong of the statute was overturned because the defendant did not touch any part of the victim in a sexual or indecent manner. Our Supreme Court limited its holding to those risk of injury cases involving sexual misconduct. "[W]e conclude that, in cases concerning alleged sexual misconduct, an `act likely to impair the . . . morals of . . . [a] child'; General Statutes (Rev. to 1997) § 53-21(1); must involve a physical touching of the victim's person in a sexual and indecent manner. Likewise, we conclude that an `act likely to impair the health . . . of . . . [a] child'; General Statutes (Rev. to 1997) § 53-21(1); when committed in a sexual context, includes only those acts that involve a direct touching of the victim's person and are or are likely to be injurious to the victim's physical health." State v. Robert H., supra, 273 Conn. 77. The petitioner's reliance on Robert H. is misplaced because the Supreme Court limited its holding to risk of injury cases involving sexual misconduct as the underlying act. For example, the court distinguished State v. March, 39 Conn.App. 267, 664 A.2d 1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995), on the grounds that "because the specific conduct at issue on appeal in that case did not involve a sexual act. Rather, the issue that the Appellate Court addressed in March was whether the giving of alcohol to a child could constitute a violation under the act prong of General Statutes (Rev. to 1991) § 53-21(1)." (Internal quotation marks omitted.) State v. Robert H., supra, 273 Conn. 75.
In State v. Davila, 75 Conn.App. 432, 816 A.2d 673, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003), the defendant fired at least two shots into a building, striking no one, but five children were present in the targeted apartment. In affirming the risk of injury convictions the court said, "The relevant inquiry is whether the defendant committed any act that was likely to endanger the life or limb, or impair the health, of the children, not whether the children actually were injured. Lack of actual injury to either the physical health or morals of the victim is irrelevant . . . actual injury is not an element of the offense." (Internal quotation marks omitted.) State v. Davila, supra, 75 Conn.App. 437. The Davila court did not specify under which part of the statute the information was written, however it did hold that, "[t]he creation of a prohibited situation is sufficient." (Internal quotation marks omitted.) Id.
See State v. Peters, 40 Conn.App. 805, 828-29, 673 A.2d 1158, cert. denied, 237 Conn. 925, 677 A.2d 949 (1996).
In State v. Carter, 84 Conn.App. 263, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), the defendant's risk of injury conviction was affirmed under the act prong of the statute because a stray bullet from his gun struck a seven-year-old girl. The defendant challenged the conviction on the grounds that his action of firing a weapon was not willful and deliberate as to the minor victim. The Appellate Court held that "[t]he defendant misperceive[d] the nature of the intent required to convict him of doing an act likely to impair the health of a child, the provision of § 53-21 under which he was found guilty. All that is necessary is the general intent to perform the act that resulted in the injury." State v. Carter, supra, 84 Conn.App. 275. In this case the jury found that the petitioner had the intent to destroy the interior of the home. As in Carter, it was not necessary that the court instruct the jury that there must be evidence that the petitioner intended to harm the children or knew that they would be in the area to be emotionally injured by his actions. Id.
The petitioner has failed to demonstrate that if the appellate counsel had pursued an appeal based upon the act prong of the risk of injury statute that the outcome of the trial would have changed. The law is clear that physical contact with the victim is required under the act prong in sexual misconduct cases. Appellate court precedent does not seem to require physical contact for situations as charged in this case.
CONCLUSION
The petitioner has not demonstrated either counsel's performance was ineffective.
Turning to the second Strickland requirement, there has been no showing that but for the alleged acts or omissions of counsel, trial or appellate results would have been different.
The trial was a "can't lose" for the state. The faulty legal premise suggested to impugn appellate counsel's efforts would not have resulted in a new trial or reversal.
The petition is denied.
Anthony V. DeMayo, J.T.R.