Opinion
No. 559588
July 2, 2003
MEMORANDUM OF DECISION
By his amended petition and second amended petition, petitioner seeks a writ of habeas corpus. For reasons hereinafter stated, the petition is denied.
In the amended petition, count one, petitioner alleges a claim of ineffective assistance of counsel. Count two in the second amended petition sets forth what plaintiff claims are improper remarks made by the prosecutor at petitioner's trial. It is claimed that petitioner's attorney failed to object to these improper remarks and that the appellate court declined to review claims of prosecutorial misconduct because of the failure of counsel to object to the remarks. Count three of the second amended petition repeats the essential allegations of the second count and claims that petitioner's attorney failed to preserve the issues by requesting a curative instruction from the trial court. Count four alleges that petitioner's trial counsel failed to request that the jury be instructed that the information was not evidence. Count five also alleges that the trial counsel failed to request a curative instruction. The sixth count alleges a violation of plaintiff's right to due process under the state and federal constitutions.
By way of relief petitioner seeks to vacate the verdict of the trial court and restore the case to the docket for further proceedings as well as such other relief as law and justice may require.
Petitioner was the defendant in a criminal trial and the judicial district of New Haven, in which it was alleged that he committed the crimes of felony murder in violation of Connecticut General Statutes § 53a-54e and robbery in the first degree in violation of Connecticut General Statutes § 53a-134 (a) (2). Petitioner was convicted of both offenses on January 8, 1997. His conviction was affirmed on direct appeal. State v. Lacks, 54 Conn. App. 412, cert. den. 254 Conn. 919 (2000).
In upholding petitioner's conviction, the appellate court found that the trial jury could reasonably have found the following facts.
On the evening of October 24, 1994, Jose Marrero, Amy Cobain and Devon Mcfarlane went to Louis Hood's apartment on Frank Street in New Haven. The quartet then proceeded to a nearby convenience store on Arch Street, where Marrero sought to obtain change for a $100 bill. Three black males, who were later identified as the defendant, Eaker McClendon and Leotis Payne, followed, them.
McFarlane did not enter the store with the others. After Marrero obtained his change, the quartet started walking back to Hood's apartment. The defendant, McClendon and Payne were still following them. Suddenly, Payne approached Cobain, put a gun to her head and demanded money. The defendant and McClendon repeatedly urged Payne to "hurry up" and get the money. Hood pushed Cobain out of the way and urged her to run, which she did. Payne then put the gun to Marrero's head, went through his pockets and took his money. Then, as Payne began to pull the trigger of the gun, Hood pushed Marrero out of the way and Payne shot Hood in the chest. Thereafter, the defendant, McClendon and Payne fled.
Officer Ricardo Rodriguez of the New Haven police department arrived at the scene and observed Hood on the sidewalk, Hood was later pronounced dead from the bullet wound, from which a .25 caliber bullet was extracted. Later, Marrero identified the defendant, McClendon and Payne at the police station as the perpetrators of the crime, and Cobain and McFarlane indicated that Payne was the shooter.
On October 27, 1994, the police entered the apartment of the defendant's girlfriend by use of force, found the defendant and arrested him. McClendon had fled out the back window and subsequently was apprehended. At trial, the defendant testified that on the night of the shooting he was unarmed and unaware of Payne's intentions or that Payne possessed a gun. He testified further that he did not see Payne or any other individual rob anyone and ran because he was fearful of gang members.
State v. Lacks, supra, 58 Conn. App. 414-15.
As a result of his conviction, petitioner was committed to the custody of the Commissioner of Correction for a term of thirty-five years. He remains in the custody of respondent.
Petitioner was represented at trial by Attorney Timothy Aspinwall. On appeal, petitioner was represented by Attorney Suzanne Zitser. In this action, petitioner claims that Attorney Aspinwall was ineffective, as alleged, and that he was therefore denied effective assistance of counsel and due process in violation of his rights under the United States Constitution and the Constitution of the State of Connecticut.
As a defendant in a criminal proceeding, petitioner was "constitutionally entitled to adequate and effective assistance of counsel at all critical stages of the criminal proceeding. Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). This right arises under the Sixth and Fourteenth amendments to the United States Constitution and Article 1st, § 8 of the Connecticut Constitution." Copas v. Commissioner of Correction, 234 Conn. 139, 153 (1995).
The general standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, supra, 466 U.S. 668. "In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice . . . thus, he must establish not only that his counsel's performance was deficient, but as a result thereof, he suffered actual prejudice, namely, that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . In this context, a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome of the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome . . . Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 592 (1992)." Mercer v. Commissioner of Correction, 51 Conn. App. 638, 640-41 (1999).
"In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial." Id.
Only if the petitioner succeeds in this herculean task will he receive a new trial. Denby v. Commissioner of Correction, 66 Conn. App. 809, 812-13 (2001).
In his brief, petitioner has raised a number of issues. He claims that the disparate results in the appeal of his case and that of Leotis Payne constitutes a denial of due process. It is also claimed that petitioner suffered ineffective assistance of counsel at the trial stage. It is argued also that the ineffective performance of his attorney prejudiced his case on appeal and that the attorney was ineffective in his preparation for trial and in the advice given to petitioner.
The court is not bound to consider any claim not briefed. Shaw v. Planning Commission, 5 Conn. App. 520, 525 (1985); Moulton Brothers, Inc. v. Lemieux, 74 Conn. App. 357, 363 (2002).
I.
Citing California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), petitioner states that due process is tantamount to observing fundamental fairness in criminal prosecution. Petitioner claims that the disparate results in the appeals of Leotis Payne's case and his case constituted a denial of due process to him.
The due process claim is based upon certain procedural aspects of the case. Petitioner and his co-defendants Payne and McClendon were all convicted after separate trials. State v. Lacks, supra, 54 Conn. App. 412; State v. Payne, 63 Conn. App. 583 (2001); State v. McClendon, 56 Conn. App. 500 (2000).
The same attorney prosecuted both petitioner's case and Payne's case. Both trials were presided over by the same judge.
Payne's trial was completed before the start of evidence in petitioner's case. After conviction, both cases were appealed. Petitioner's appeal was considered by the Appellate Court. The decision released on June 27, 2000 upheld the conviction. Id. Certification to the Supreme Court was denied on October 2, 2000. State v. Lacks, 254 Conn. 919 (2000). The Appellate Court confirmed Payne's conviction by decision released May 29, 2000. Id. On July 5, 2001, the Supreme Court granted certification of Payne's appeal limited to the question: "In the exercise of our supervisory authority over the administration of justice, should the defendant be afforded a new trial due to pervasive prosecutorial misconduct during closing argument?" State v. Payne, 257 Conn. 904 (2001). By decision released June 11, 2002, the Supreme Court reversed Payne's conviction and remanded the case for a new trial. State v. Payne, 260 Conn. 446 (2002).
After the release of the Supreme Court decision granting Payne a new trial, petitioner's appellate counsel moved the Supreme Court to reconsider certification of his case. Permission to file was granted, but certification was denied. Petitioner has presented no specific Connecticut or federal legal authority for his claim that the granting of a new trial to Payne, who fired the fatal shot, while denying such relief to petitioner deprived petitioner of due process of law.
Petitioner has submitted cases decided by appellate courts in Florida. In one situation, Tapia and Cook were tried together and convicted of murder. Separate appeals were taken and Tapia's conviction was upheld. Tapia v. State, 566 So.2d 1293 (1990). In Cook's appeal, error was found in the conduct of the trial and a new trial was granted. Cook v. State, 595 So.2d 994 (1992). Tapia's subsequent petition for a new trial was treated as a habeas petition. The court found that trial errors affected both defendants and the inconsistent appellate decisions constituted a denial of due process and the conviction was set aside. Tapia v. State, 676 So.2d 1059 (1996).
In Raulerson v. State, 724 So.2d 641 (1999), another Florida case submitted by petitioner, habeas relief was granted where codefendants in a criminal case raised identical issues in separate appeals resulting in conflicting appellate results.
The Florida cases are factually different from the case at bar. Although there were similarities in their cases, petitioner and Payne had separate trials.
They were represented by different attorneys, the theory of defense was different and the improper remarks by the state's attorney was not the same.
Both convictions were upheld on appeal. Payne's conviction was reversed by the Supreme Court utilizing its supervisory authority. The Supreme Court declined to reconsider petitioner's case.
"The requirements for a successful due process claim are well established. The Fourteenth Amendment to the United States Constitution provides that the state (shall not) deprive any person of life, liberty, or property, without due process of law . . ." In order to prevail on his due process claim, the (petitioner) must prove that: (1) he has been deprived of a property [or in this case liberty] interest cognizable under the due process clause; and (2) the deprivation of the property (or liberty) interest has occurred without due process of law. In Re: Steven M., 68 Conn. App. 427, 432 (2002).
The Supreme Court, in considering the prosecutorial misconduct in Payne's case, determined that the prosecutor's conduct "does not necessarily require reversal as a due process violation." State v. Payne, supra, 260 Conn. 452. The court granted the new trial to Payne, not because of any due process violation, but in the exercise of the court's supervisory authority. "We exercise our supervisory authority in order to protect the rights of defendants and to maintain standards among prosecutors throughout the judicial system rather than to address the unfairness of a particular trial." Id.
"(T]he requirements of due process are met in the trial of a person accused of crime if he has been given the benefit of a fair and impartial trial in accordance with the settled course of judicial proceedings in this state." State v. McIver, 201 Conn. 559, 565 (1926). "Due process seeks to assure a defendant of a fair trial, not a perfect one." State v. Gonzalez, 197 Conn. 677, 681 (1985).
Petitioner appealed his conviction to the Appellate Court and was afforded the opportunity to seek Supreme Court review of the Appellate Court's decision twice. It cannot be found then that he has been deprived of his right to procedural due process. The Appellate Court specifically found that petitioner had not been denied his right to a fair trial. State v. Lacks, supra, 58 Conn. App. 424. It cannot then be found that he has been deprived of his right to substantial due process.
Petitioner's case has been handled with fundamental fairness. Mr. Payne has been fortunate in that the Supreme Court, in its discretion, granted him a new trial for the reason stated. The benefit conferred on Payne does not constitute a constitutional deprivation to petitioner.
II.
Count Two of the second amended petition raises the issue of constitutional inefficiency of counsel during petitioner's criminal trial. The claim arises out of the final argument of the prosecutor to the jury. In his petition, petitioner has set forth a number of specific instances where the state's attorney improperly vouched for the credibility of the state's witnesses, commented on the credibility of petitioner and expressed his opinion as to petitioner's guilt. It is also alleged that the prosecutor appealed to the emotions, passions and prejudices of the jury.
The Appellate Court, in its consideration of petitioner's appeal, found that: "The prosecutor, in his closing argument, commented on the motivation and credibility of the defendant and the defendant's witnesses, as opposed to the state's evidence, and urged the jury to refer to the information filed." State v. Lacks, supra, 58 Conn. App. 422. The Supreme Court, in State v. Payne, supra, 280 Connecticut 455, referred to the prosecutor's improper remarks to the jury at petitioner's trial in finding that the prosecutor "demonstrated a pattern of vouching for witnesses and lending his credibility as a prosecutor to the witnesses." In State v. Payne at 460-61, the court found that the prosecutor exceeded the proper grounds of argument in commenting on the credibility of petitioner.
It cannot be denied that in his final summation to the jury, the state's attorney exceeded the bounds of permissible argument and was guilty of prosecutorial misconduct. Petitioner's attorney did not object to any of the comments by the prosecutor and did not request a curative instruction. In his testimony at the habeas trial, Attorney Aspinwall admitted that he did not object and stated that he should have done so. Petitioner claims that the attorney's failure to object or request an appropriate instruction constituted inefficient assistance of counsel.
In his appeal before the Appellate Court, petitioner raised the issue of the improper remarks made by the prosecutor claiming that such remarks deprived him of his right to a fair trial. Although the court declined to directly review the claim because of counsel's failure to object, the court did consider the seriousness of the prosecutor's remarks and whether such remarks deprived petitioner of his due process right to a fair trial. In so doing, the court stated, "We have long held, moreover, that [ Golding] review of such a claim is unavailable where the claim to misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . because in such a case the claimed misconduct is insufficient to infect the fundamental fairness of the trial itself . . . Furthermore, in order to warrant review under the plain error doctrine, the allegedly improper conduct must so pervade the defendant's trial as to have impaired the effectiveness or integrity of the judicial process." Id., 422.
The court then went on to find that petitioner had failed to meet his burden of establishing that remarks of the prosecutor were so prejudicial that he was deprived of a fair trial and that the entire proceedings were tainted. In conclusion, the court stated, "On the basis of our review of the record, we fail to see how the prosecutor's remarks were so abusive or prejudicial as to deprive the defendant of a fair trial." Id., 424.
Under the facts of the case, it must then be determined whether in failing to object to the prosecutor's improper remarks to the jury, counsel's performance fell below the required standard of competence required by law. Mercer v. Commissioner of Correction, supra, 51 Conn. App. 641.
It has long been noted that, for tactical or other reasons, attorneys are reluctant to raise objections during final argument to the jury. Attorney Aspinwall did not object to the prosecutor's improper remarks in the case at bar. The attorney representing Payne objected to the prosecutor's unsubstantiated statement that his client had been involved in another robbery, but failed to object to other improper argument. State v. Payne, supra, 63 Conn. App. 589-94. There were other cases of prosecutorial misconduct in final argument in which no objection by defense counsel was taken. State v. Singh, 259 Conn. 693, 699 (2003); State v. Reynolds, 264 Conn. 1, 160 (2003); State v. Andrews, 248 Conn. 1, 19-20 (1999); State v. Robinson, 227 Conn. 711, 745-46 (1993); State v. Rogelstand, 73 Conn. App. 17, 26 (2002); State v. Brown, 71 Conn. App. 121, 125 (2002); State v. Alexander, 50 Conn. App. 242, 248 (1998).
No doubt there are many more cases in which counsel failed to object to improper argument by the state's attorney and that in some instances defense counsel made timely objections when faced with prosecutorial misconduct in final argument. It must be concluded, however, that in many instances attorneys representing defendants in serious criminal cases, for whatever reason, declined to object to such argument.
Attorney Aspinwall testified that he should have objected to the state's improper remarks at petitioner's trial. In this, he was correct, but in making the admission he had the advantage of hindsight. It is all so easy to conclude that a particular act or omission by an attorney at trial was unreasonable or ineffective. "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 evaluate the conduct from counsel's perspective at the time." Doehrer v. Commissioner of Corrections, 68 Conn. App. 774, 778 (2002).
After a review of the cases and the evidence in this case, it cannot be found that in failing to object to the improper argument of the prosecutor. Attorney Aspinwall's conduct fell below the standard required at the time.
III.
Petitioner alleges that the prosecutor in his final argument suggested to the jury that the information setting forth the charges could be considered an exhibit and that Attorney Aspinwall failed to object or take any action to correct the suggestion.
In his final argument, the prosecutor did mention the information and that the jury would have it with them during their deliberation so that they could look it over. The prosecutor's remarks at petitioner's trial differed substantially from his remarks at Payne's trial. At Payne's trial, the prosecutor vouched for the charges by saying, "My name is on the information. I brought the charges here." State v. Payne, supra, 260 Conn. 455. The prosecutor in petitioner's case in mentioning the information advised the jury to be guided by the court's instruction about the document. In his preliminary instructions to the jury panels, the judge read the information and instructed them that the information was not evidence.
It has not been proven that Attorney Aspinwall was remiss in failing to take any action concerning the prosecutor's remarks to the jury about the information.
IV.
Petitioner alleges that Attorney Aspinwall was remiss in not requesting that the judge give a curative instruction to correct the improper statements made by the prosecutor in final argument. Although the attorney raised the issue of the prosecutor's remarks before the trial judge by a motion for a new trial, he did not request a curative instruction. State v. Lacks, supra, 58 Conn. App. 420. It is noted, however, that in his preliminary instructions to the jury panels, the judge instructed the jurors that the statements and arguments of the attorney were not evidence. In his charge at the end of the trial, the judge instructed the jury that it was their duty to find the facts and that in so doing, they were not to go outside of the evidence introduced in court. The judge also covered how the jury should consider questions of credibility and how petitioner's testimony should be judged.
In petitioner's appeal to the Appellate Court, questions of the legal sufficiency of the court's instructions to the jury were raised. In reviewing these issues, the Appellate Court was required to look at the entire charge. In so doing, the Appellate Court reached the following conclusion. "We conclude that the instruction in the present case, when viewed in the context of the court's jury instructions in their entirety, did not clearly deprive the defendant of a fair trial." Id., 427.
It must be concluded then that petitioner suffered no actual prejudice as a result of the attorney's failure to request curative instructions.
V.
Attorney Suzanne Zitser represented petitioner in his appeal to the Appellate Court and his two efforts to obtain certification to the Supreme Court. Attorney Zitser testified that she was hampered in her appellate effort by Attorney Aspinwall's failure to preserve the prosecutorial misconduct claim at the trial level. It is alleged that this failure resulted in the claims of error being reviewed at a lesser standard. Under State v. Golding, 213 Conn. 233, 239-40 (1989).
State v. Golding held that "a defendant can prevail on a claim of constitutional not preserved at trial, only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendants of a fair trial; (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. Id.
In considering whether to grant Golding review of petitioner's claim of prosecutorial misconduct, the Appellate Court reviewed State v. Atkinson, 235 Conn. 748, 769 (1996). The court then went on to state, "It is well settled, however, that a defendant may not prevail under Golding or the plain error doctrine unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant's right to a fair trial, nor will we invoke the supervisory authority to reverse an otherwise lawful criminal conviction absent or showing that the conduct of the prosecutor was so offensive to the judicial process that a new trial is necessary to deter misconduct in the future." State v. Lacks, supra, 58 Conn. App. 422-23. The court then went on to review the conduct of the prosecutor and the statements made by him to the jury. After such review, the court then stated: "On the basis of our review of the record, we fail to see how the prosecutor's remarks were so abusive or prejudicial as to deprive the defendant of a fair trial." Id.
The Appellate Court declined to grant full review of petitioner's claim of prosecutorial misconduct during final argument because the third element of Golding had not been proven. It was determined that the comments of the prosecutor did not deprive petitioner of a fair trial. If the claim of prosecutorial misconduct had been preserved for full appellate review, there has been no showing of how petitioner's chances for a new trial would have been improved. In considering the issues presented, the Appellate Court determined that even with the improper argument by the state's attorney, petitioner was not deprived of a fair trial.
The claim that petitioner had been deprived of a fair trial was presented to the Supreme Court twice, once before and once after the Payne decision. It was rejected both times.
Also, the claim that petitioner's appellate rights suffered as a result of ineffective assistance of counsel more properly comes under the second prong of Strickland v. Washington, supra. Under Strickland petitioner must establish both (I) deficient performance and (2) actual prejudice. Mercer v. Commissioner of Correction, supra, 51 Conn. App. 640-41. Petitioner has failed to prove defective performance and it has not been established that he suffered actual prejudice by counsel's failure to preserve the claims of prosecutorial misconduct for appellate review.
In his petition, it is claimed that Attorney Aspinwall was deficient in that he did not adequately advise petitioner concerning his options of potential defenses, did not conduct sufficient investigation into available and potential witnesses, the elements of prosecutor's proof or potential defenses. It is claimed that these acts and omissions by the attorney fell below the standard of performance required by law and constituted ineffective assistance of counsel.
Petitioner's testimony was generally in support of these allegations. He stated that he provided information to his attorney concerning witnesses. He also testified that he did not have a full understanding of the charges against him.
At the time he represented petitioner, Attorney Aspinwall was a contract special defender with experience in handling criminal cases. The attorney testified that he explained the elements of the charges to petitioner, but that the concept of felony murder was difficult. He stated that he felt petitioner was competent and street smart, but he was not certain that petitioner fully grasped the concept of felony murder. The attorney also testified that he discussed potential defenses with petitioner. One such defense, which was used at trial, involved the claim that the shooting was spontaneous, petitioner had no knowledge that it was to occur and there was no robbery. If the jury believed petitioner, the charge of felony murder would have been rebutted.
Attorney Aspinwall testified that in preparation for trial, he used discovery to obtain the statements of the state's witnesses and the co-defendants. This information was discussed with petitioner. The attorney also felt certain that he obtained transcripts of the Payne trial since some of the witnesses would be called in petitioner's case.
The attorney discussed potential witnesses with petitioner. Some witnesses were called, but he was unable to locate other witnesses. The attorney testified that he made use of an investigator in preparing for trial.
Considering all of the evidence, it cannot be found that petitioner has proven the allegations of the first count of the amended petition.
Considering all of the evidence, it must be concluded that petitioner has failed to establish that Attorney Aspinwall's performance in representing him fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law and that petitioner was not deprived of a fair trial as a result of his representation by Attorney Aspinwall.
Accordingly, the petition is denied.
Joseph J. Purtill Judge Trial Referee