Opinion
CV144005876S
10-11-2016
Frantz Cator v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Frantz Cator, seeks habeas corpus relief from a total, effective sentence of fifty years imprisonment, imposed after a jury trial, for the crimes of murder, felony murder, conspiracy to commit murder, kidnapping second degree, conspiracy to kidnap second degree, and a violation of G.S. § 53-202k. Our Supreme Court affirmed the judgment of convictions on direct appeal, except for the violation of § 53-202k, State v. Cator, 256 Conn. 785, 781 A.2d 285 (2001).
The petitioner has also brought previous habeas corpus cases attacking his confinement, which cases denied the relief requested. Two of such petitions were Cator v. Warden, Superior Court, Tolland Judicial District d.n. CV 01-810396, (February 25, 2004), Fuger, J.; affirmed, Cator v. Commissioner, 92 Conn.App. 241, 884 A.2d 447 (2005); cert. denied, 276 Conn. 936, 891 A.2d 1 (2006); and Cator v. Warden, Superior Court, Tolland Judicial District d.n. CV 06-4001410S, (February 19, 2009), Nazzaro, J.
The present habeas action asserts claims of ineffective assistance of trial counsel; ineffective assistance of appellate counsel; and a violation of due process. This court dismissed the count regarding ineffective assistance of trial counsel, under Practice Book § 23-29, as a successive petition, see McClendon v. Commissioner, 93 Conn.App. 228, 231, 888 A.2d 183 (2006), cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).
Freestanding Due Process Claim
In the third count of the amended petition, the petitioner alleges that the trial judge in his criminal case denied him a fair trial by improperly instructing the jury as to specific intent and by submitting the murder, felony murder, conspiracy to commit murder and, the conspiracy to commit kidnapping second degree charges to the jury for its decision. All of these purported errors occurred on the record and could have been raised on direct appeal but were not. The respondent has asserted that this claim is barred by procedural default.
In Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993). The burden of proving good cause and prejudice for procedural defaults rests with the habeas petitioner. Johnson v. Commissioner, supra, 409.
In this case, the petitioner submitted no evidence of any good cause justifying his failure to assert this previously omitted claim at trial or on appeal. Good cause must be external to the defense and be some factor besides attorney error. Jackson v. Commissioner, supra, 137. The mere failure of counsel to recognize the factual or legal ground does not constitute good cause to excuse default. Parker v. Commissioner of Correction, 27 Conn.App. 675, 682, 610 A.2d 1305 (1992), cert. denied, 223 Conn. 909, 612 A.2d 57 (1992).
Therefore, the petitioner has failed to prove good cause and prejudice for this claim of trial level error, and the third count provides no basis for habeas relief.
Ineffective Assistance of Appellate Counsel
Former Assistant Public Defender Suzanne Zitser represented the petitioner in his direct appeal. In that effort, Attorney Zitser briefed and argued seven grounds of putative error, viz. a conflict of interest by the petitioner's original trial counsel at the probable cause hearing; the admission of uncharged misconduct evidence; the inadequacy of the trial court's jury instructions as to uncharged misconduct; the impropriety of modifying the petitioner's sentence; the treatment of a violation of § 53-202k as a separate offense; imposition of separate sentences for two conspiracies; and insufficiency of a notice of a violation of probation allegation. Her arguments prevailed on the § 53-202k and double jeopardy grounds, but the other issues were rejected by the Supreme Court, State v. Cator, supra .
The petitioner now submits that Attorney Zitser provided ineffective appellate representation for failing to raise claims surrounding the submission of the murder, felony murder, and conspiracy counts to the jury; and that the trial court erroneously instructed the jury on specific intent by including language and a statutory definition that applied only to general intent crimes.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra . This standard of reasonableness is measured by prevailing, appellate practice. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
The measure of professional performance of appellate counsel is the same as for trial counsel when evaluating ineffective assistance claims as to the first prong of the Strickland test, Couture v. Comm'r of Corr., 160 Conn.App. 757, 765, 126 A.3d 585 (2015), cert. denied, 320 Conn. 911, 128 A.3d 954 (2015). However, the prejudice prong of that test focuses on the outcome of the appeal rather than the underlying criminal case, Small v. Commissioner, 286 Conn. 707, 720-21, 946 A.2d 1203 (2008). Thus, the petitioner's burden as to prejudice is to establish, by a preponderance of the evidence, that there exists " a reasonable probability that, but for his counsel's error, he would have prevailed on his appeal, " Id.
Jury Instruction on Intent
General Statutes § 53a-3(11) states: " A person acts 'intentionally' with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct."
Perhaps elevating brevity over clarity, this definition conjoins two, disjunctive usages of the word " intentionally" in one sentence. If the commission of a crime demands specific intent, then that portion of the definition referring to a " result" applies. However, if a crime can be committed with only a general intent, then the phrases using " conduct" pertain. That is, specific intent looks behind the motive for conduct, while general intent is only concerned with the purposeful performance of an act, whatever the motivation.
It is improper to instruct a jury by reciting the entire definition set forth in § 53a-3(11) when explaining specific intent because the jury's task is restricted to determining whether the " conscious objective . . . to cause such result" has been proven by the prosecution beyond a reasonable doubt, and the jury's verdict to convict cannot be based simply because an act was performed without proof of the requisite motivation, Moody v. Commissioner, 127 Conn.App. 293, 305, 14 A.3d 408 (2011). However, the first case in Connecticut that identified this impropriety was decided years after the petitioner's criminal trial in 1997, State v. DeBarros, 58 Conn.App. 673, 683, 755 A.2d 303 (2000).
Attorney Zitser had considered and declined to press this issue in the petitioner's appeal. She recognized that the trial judge lacked the benefit of the Appellate Court's wisdom because State v. DeBarros, supra, arose three years post-trial. She was also aware that our appellate tribunals have seldom reversed convictions based on this particular error since that case was decided. " [T]he conviction of the crime requiring specific intent almost always has been upheld because a proper intent instruction was also given, " Moody v. Commissioner, supra .
In the petitioner's case, the trial judge correctly informed the jurors of the specific intents that the prosecution need to prove, beyond a reasonable doubt, when he instructed on each crime individually. Attorney Zitser reasonably opined that this claim was unlikely to succeed, and she devoted her limited brief pages and argument to more meritorious issues. The court finds that this professional decision came within the wide boundaries of acceptable legal representation. Therefore, the petitioner has failed to satisfy his burden of proving, by a preponderance of the evidence, that his appellate lawyer rendered ineffective assistance as to this specification of deficient performance.
Insufficiency of Evidence Issue
This specification of ineffectiveness centers on whether the trial judge ought to have granted a motion for judgment of acquittal and refused to allow the jury to decide the petitioner's guilt on the charges of murder, felony murder, and the conspiracy counts.
Our Supreme Court summarized the evidence that supported the jury's verdict.
" Desmond Hamilton, the defendant and the victim, Nathaniel Morris, all knew each other and had participated in the sale of drugs together. On May 10, 1996, on Laurel Court, a dead-end street in Bridgeport, the defendant and Hamilton had a discussion concerning both money that Hamilton owed the defendant and a gun of the defendant's that he had given to Hamilton approximately two weeks earlier. Also present during the conversation were the victim, and McWarren St. Julien. The defendant also questioned the victim about the whereabouts of the gun. During the conversation, the defendant became upset, began yelling and pulled out a Glock .40 handgun. Police officers subsequently came to the location of the conversation, but when they arrived the defendant was no longer there. Later that night, Hamilton called the defendant to attempt to explain that he did not know where the gun was located, and that he would never steal from the defendant. The defendant told Hamilton that he wanted him " to get everything straight."
On the following day, May 11, 1996, Hamilton again called the defendant, who told Hamilton that he was going to meet Hamilton at Hamilton's mother's house, and that the two men would go together to find the victim to learn what had happened to the gun. Later that evening, the defendant picked up Hamilton and they proceeded to 244 Olive Street in Bridgeport, where Hamilton, the victim, Tamara Addison and Terrance Addison lived. At 244 Olive Street, the defendant, the victim, St. Julien, Hamilton, Hamilton's mother, Tamara Addison and Terrance Addison were on the front porch of the house. There the defendant asked the victim about the whereabouts of his gun that had been the topic of the May 10 discussion. At or about the same time, Rodolphe St. Victor arrived at the house. The defendant and St. Julien then left the porch as St. Victor forcibly pulled the victim off the porch. As the defendant and St. Julien proceeded to enter a blue Oldsmobile parked in the driveway of the house, St. Victor grabbed the victim by the sleeve and said " Come on. [The defendant] wants to talk to you." St. Victor then forced the victim into the Oldsmobile, which the defendant then drove away. People at the house contacted the Bridgeport police out of concern for the victim's safety. The police came to the house and, after speaking with the people there, left in search of the blue Oldsmobile.
Later that evening, the defendant, St. Julien and St. Victor returned to 244 Olive Street in the blue Oldsmobile. The police arrived shortly thereafter and arrested the three occupants of the vehicle and recovered a gun from it. The defendant, St. Julien and St. Victor then were taken to the Bridgeport police station. Thereafter, St. Victor and three Bridgeport police detectives left the Bridgeport police station and St. Victor directed the police to Suggetts Lane, Bridgeport, where the victim was found, conscious but unable to speak, with a gunshot wound to the back of his neck. The police summoned medical personnel, who took the victim to Bridgeport Hospital, where he died. Tests conducted on the gun recovered from the car revealed that the bullet that killed the victim had been fired from it. The murder weapon was a MAC-10 automatic pistol modified with a shell catcher to retain spent bullet casings and a handle to prevent shaking when the gun was fired rapidly. This weapon belonged to the defendant, and he often carried it with him." State v. Cator, supra, 789-91.
The following additional facts are pertinent to this allegation. After the state rested at the criminal trial, the petitioner's trial counsel moved for a judgment of acquittal based on insufficiency of the evidence adduced regarding the charges of capital felony murder, murder, felony murder, and conspiracy to commit murder. Judge Ford granted the motion with respect to the capital felony murder count but denied it as to the remainder.
In so ruling, the trial court remarked:
I know that the allegation is an intentional murder here, but the problem is I didn't have any evidence on the part of the accused to support that allegation. I find much evidence in support of accessorial liability and, in particular reference to the principal offenses, and for the felony murder, but as far as the capital murder, . . . I just don't find any evidence that this gentleman has been proven to have intentionally participated in the killing of Nathaniel Morris.
The state responded by pointing to the evidence that the victim's shooter, Peter Johnson, used the petitioner's firearm, which gun the petitioner always carried with him. Judge Ford acknowledged the existence of that evidence, but still felt that evidence was lacking that the petitioner participated in the actual shooting, despite not being the triggerman. Judge Ford tried to describe the type of evidence he felt was missing as to the capital felony murder allegation:
[If] someone . . . said that this fellow, Cator, was the principal in this little group of narcotics dealers and that he was the one fully armed and . . . he told people what to do and when to do it and how to do it, and [the petitioner] told me to go drag him off the porch and what then and put him in the car, and we went and got Johnson and [the petitioner] said " Go in and get Johnson." And when Johnson got in the car, " You take care of this and you hold him" and Johnson started whacking him around and pulled up to Suggetts Lane and [the petitioner] said, " You guys go and do him in." And they do--if you got that kind of evidence, I don't quarrel that is a capital felony, but we didn't have it here.
The petitioner interprets Judge Ford's comments to mean that he found no probative evidence to support the petitioner's guilt for committing murder, felony murder, or conspiracy. Attorney Zitser testified at this habeas trial that she never raised this insufficient evidence claim, based on the trial judge's remarks in deciding the motion for judgment of acquittal, because there was ample evidence to support the petitioner's convictions for these charges. Attorney Zitser concluded that the petitioner now reads too much into Judge Ford's explanation for his ruling on the capital felony count. One of the petitioner's own expert witnesses, Attorney Norm Pattis, agreed with Attorney Zitser's conclusion, and this court concurs.
The petitioner ignores the trial judge's preface that, " I find much evidence in support of accessorial liability and, in particular reference, to the principal offenses and for the felony murder . . ." The petitioner cannot contend that Judge Ford misunderstood the difference between accessorial culpability for murder and conspiracy and capital felony murder because the judge's jury instructions belie such misunderstanding.
It must be kept in mind that the critical issue was not whether Judge Ford's denial of the motion as to most counts was inconsistent with his granting of the motion as to capital felony murder, but rather whether Judge Ford correctly determined that there existed sufficient evidence to support the other charges, despite the fact that the petitioner was not the shooter himself.
Attorney Zitser recounted at the habeas trial that she declined to assert the sufficiency claim on appeal because there was no insufficiency of evidence to support the guilty verdicts. Again, Attorney Pattis, one of the petitioner's experts, never opined that Attorney Zitser acted incompetently as to this decision. This court agrees.
The jury was entitled to find that the petitioner believed that the victim disposed of the petitioner's MAC-11 firearm without the petitioner's knowledge or permission; that this transgression so angered the petitioner that he ordered his cohorts to force the victim physically into the petitioner's car; and that the petitioner intentionally drove away with the victim restrained against his will in his car by force and threats of force and took the victim to his place of execution where the victim was shot and killed by means of the petitioner's weapon, a MAC-10. The petitioner returned as a passenger in his vehicle a few hours after the homicide with the murder weapon in his car and with the shooter, Johnson.
The jury could logically and reasonably infer that, during the victim's abduction by the petitioner, the petitioner picked up the triggerman and supplied him with the firearm used to kill the victim. The police seized the murder weapon from the petitioner's car shortly after the murder and while the petitioner still occupied it. Clearly, this evidence, viewed most favorably toward sustaining the jury's verdict, sufficed to prove the petitioner guilty, beyond a reasonable doubt, of the crimes for which he was convicted.
For these reasons, the amended petition for habeas corpus relief is denied.