Opinion
No. CV 07 4001763
January 24, 2011
MEMORANDUM OF DECISION
The petitioner, Anthony Velez, alleges in his petition for a writ of habeas corpus, filed on June 5, 2007 and amended on February 17, 2010, that his conviction and incarceration are illegal because they rest upon the deprivation of his constitutional right to the effective assistance of trial counsel under the sixth and fourteenth amendments to the United States Constitution. Consequently he asserts that he is entitled to have his conviction set aside and the matter restored to the docket of the Superior Court for further proceedings. For reasons set forth more fully below, the petition is denied.
This matter came to trial before this court on August 10, 2010. Attorney Claude Chong, the petitioner's trial counsel, and Attorney Michael Blanchard, who qualified as an expert in criminal law, testified at trial. The court also received numerous pieces of documentary material into evidence, including the transcript of the petitioner's criminal trial and the appellate briefs filed in the petitioner's direct appeal of his conviction. The petitioner and the respondent filed post-trial briefs on October 28, 2010 and November 2, 2010 respectively. Additionally, Attorney Lisa Steele, an expert in criminal appellate law, through habeas counsel, filed a supplemental brief on the petitioner's behalf on November 26, 2010.
Findings of Fact
Having reviewed all of the testimony and documentary evidence, the Court makes the following findings of fact:
1. The petitioner was the defendant in a criminal case in the Judicial District of New Britain, under Docket No. CR04-0217924, in which he was charged with murder in violation of General Statutes § 53a-54a, kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) and (C), burglary in the first degree in violation of General Statutes § 53a-101(a)(2) and criminal mischief in the first degree in violation of General Statutes § 53a-115(a)(1).
2. The petitioner pleaded not guilty and exercised his right to a jury trial.
3. As regards the charged crimes, the jury reasonably could have found the following facts. "The [petitioner] and the victim had a sexual relationship. Prior to moving to the first floor apartment at 144 Dwight Street in New Britain, the two men had lived together. The lease for the 144 Dwight Street apartment was in the victim's name. The [petitioner] had a key to the apartment door but not the main entrance to the building, a three-story dwelling. He also received his mail at 144 Dwight Street . . .
4. "The [petitioner] has suffered from psychiatric problems since he was seven years old. Approximately one week before the incident, the [petitioner] had been hospitalized following a suicide attempt. Various medications were prescribed for him, but he took them sporadically. At the time of the incident, the [petitioner] claimed not to have taken his medicine for a number of days because he was trying to wean himself from them. The victim was skeptical of psychiatric medications and did not like the fact that the [petitioner] took so many of them.
5. "On the evening of September 18, 2004, the [petitioner] and victim attended a wedding reception in New Britain and were seated at a table with the victim's cousin, Gwendolyn Robinson, who later recalled that the [petitioner] had been drinking heavily. During the reception, the [petitioner] danced with a woman, an act that caused the victim to become jealous and angry. After the victim threatened him, the [petitioner] went outside, and the victim followed him. Robinson, who had gone outside for a cigarette, saw the victim kick the [petitioner] and heard them arguing about a woman. Later, Robinson drove the victim home.
6. "Although the victim told the [petitioner] not to come home, the [petitioner] walked to 144 Dwight Street. When he arrived, the front door of the building was locked. The [petitioner] went to the bedroom window and asked the victim to unlock the door, but the victim would not let the [petitioner] inside. For more than one hour, the two carried on an angry conversation from either side of the window. The [petitioner] eventually broke the window with a rock. While the [petitioner] was climbing through the window, the victim punched him in the head. The victim got a knife from the kitchen, but the [petitioner] punched the victim, causing him to drop the knife. The victim then ran up the stairs. The [petitioner] grabbed two kitchen knives and followed him. The victim stood outside the empty second floor apartment calling for help. The [petitioner] stabbed him quickly and dropped the knives. The victim ran down the stairs and outside. [footnote 1: The [petitioner] had stabbed the victim once in the right flank and arm and three times in the center of the back, puncturing the right and left chest cavities and the left lung. The injuries compromised the victim's ability to breathe and caused internal bleeding, which led to his death at a hospital.] The [petitioner] returned to the first floor apartment.
7. "According to the [petitioner], he did not know what had come over him, as he had no control of himself. He claimed that he was intoxicated, scared and going crazy He broke things throughout the apartment. The [petitioner] described himself as having had a psychotic episode during which he could not stop himself from doing things that he knew were wrong." State v. Velez, 113 Conn.App. 347, 349-51, 966 A.2d 743, cert. denied, 291 Conn. 917, 970 A.2d 729 (2009).
8. The petitioner was represented at trial by Attorney Claude Chong.
9. The petitioner presented two defenses at trial: intoxication and extreme emotional disturbance.
10. On July 24, 2006, the jury found the petitioner guilty of murder, burglary in the first degree and criminal mischief in the first degree.
After the prosecution rested, the trial court granted the petitioner's judgment of acquittal on the kidnapping counts. Petitioner's Exhibit [Exh.] 3, pp. 391-93.
11. Thereafter, on September 15, 2006, the trial court (D'Addabbo, J.), sentenced the petitioner to a total effective sentence of sixty years of incarceration.
The trial court sentenced the petitioner to sixty years on the murder charge, twenty years on the burglary charge and five years on the criminal mischief charge, all to be served concurrently. Petitioner's Exh. 5, pp. 22-23.
12. The petitioner timely appealed his conviction. On appeal, he claimed, inter alia, that the trial court "deprived him of his constitutional right to due process and a fair trial by failing to answer adequately a question from the jury or to correct the jury's misunderstanding regarding the element of intent." State v. Velez, supra, 111 Conn.App. 353.
13. The Appellate Court declined to review the petitioner's claim under both State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989) and the plain error doctrine on the ground that trial counsel had waived the petitioner's constitutional rights regarding a proper jury instruction by expressing satisfaction with the trial court's supplemental jury instruction. Id., 353-61.
14. The Supreme Court denied certiorari. State v. Velez, 291 Conn. 917, 970 A.2d 729 (2009).
15. Additional facts will be discussed as necessary.
Discussion of Law
In his amended petition, the petitioner claims that his conviction is illegal because his trial counsel rendered ineffective assistance. Specifically, he alleges that Attorney Chong rendered ineffective assistance by failing to object to the trial court's response to a note sent out by the jury regarding the element of intent required for a murder conviction and thereby, by failing to preserve the issue for appeal.
"To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The following additional facts are relevant to the petitioner's claim. On the first day of deliberations, as the jury was about to take a recess, it sent the court two notes. One note, the note at issue in the present case, asked: "Is intent established if a reasonable person should have known that his actions could result in death/killing the victim?" "The court stated on the record that it had discussed the note and its proposed answer with both counsel. The court then asked both counsel if either one of them had an objection to the court's responding to the jury's question in the manner discussed. Defense counsel stated, `no, your Honor.'
Petitioner's Exh. 4, p. 664.
"When the jury returned, the court instructed: `Ladies and gentlemen, I have received both of your notes . . . and I have discussed them with the attorneys . . . As it relates to the first note . . .'Is intent established if a reasonable person should have known that his actions could result in death/killing the victim?' I cannot give you a yes or no answer. Your decision must come from the facts that you find credible and the law instructed. Whether or not intent is established is a question of fact for you, the jury, to decide. Now, I had instructed on the definition of intent and instructed you on the things that you . . . may consider in determining intent. And if you wish me to read those to you, I will be happy to do that. Send me a note to that effect, otherwise I'm going to refer you, because you have with you in your deliberations, the court's instruction, and it is on page forty-one through forty-five of the instructions.' After the jury was excused, the court again asked both counsel if there were exceptions to the court's response. Defense counsel again stated, `no, your Honor.'" State v. Velez, supra, 113 Conn.App. 355-56. The jury did not send out any subsequent notes regarding the element of intent.
At the habeas trial, Attorney Chong testified that he thought about how to respond to the jury's note and that he believed the court's response was the best way to avoid any confusion. Accordingly, although he could have objected to the court's response, he did not. "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. Because of the difficulties inherent in making the evaluation, 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." (Internal quotation marks omitted.) Strickland v. Washington, CT Page 3105 supra, 466 U.S. 689. Attorney Chong exercised his professional judgment in deciding not to object to the trial court's response to the jury note. His conduct falls within "the wide range of reasonable professional assistance." Id. The petitioner has not demonstrated otherwise. Accordingly, his claim fails.
Even if Attorney Chong's performance was inadequate and, therefore deficient, the petitioner's claim stills fails for lack of a showing of prejudice. As noted supra, to prove prejudice, the petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). "A reasonable probability is one which is sufficient to undermine confidence in the result." (Internal quotation marks omitted.) Vasquez v. Commissioner of Correction, 111 Conn.App. 282, 286, 959 A.2d 10, cert. denied, 289 Conn. 958, 961 A.2d 424 (2008). This court cannot speculate as to what the trial court may have done had Attorney Chong objected to its proposed response to the jury note in question. See Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009) ("[m]ere conjecture and speculation are not enough to support a showing of prejudice" [internal quotation marks omitted]). In any event, the trial court's response to the jury note does not undermine this court's confidence in the result of the petitioner's criminal trial.
Moreover, given the additional claim that Attorney Chong's failure to object prevented appellate review of the issue, to determine whether the petitioner was prejudiced thereby it is necessary to assess whether the petitioner has demonstrated that there is a reasonable probability that he would have prevailed on appeal had the Appellate Court reached the merits of his claim that the trial court improperly responded to the jury note. As discussed below, the petitioner has not met this burden.
"The function of the jury is to determine the guilt or innocence of a defendant. That determination is dependent upon proper instructions from the trial court . . . Indeed, it is the judge's special business to guide the jury by appropriate legal criteria through the maze of facts before it . . . The defendant is entitled to a jury which is correctly and adequately instructed . . . In this state, the duty of the judge to instruct the jury on the law is embodied both in the Practice Book and in the statutes. General Statutes § 54-89; Practice Book § 864 [now § 42-27]." (Citations omitted; internal quotation marks omitted.) State v. Fletcher, 10 Conn.App. 697, 701, 525 A.2d 535 (1987), aff'd., 207 Conn. 191, 540 A.2d 370 (1988). "Clarification of the instructions when the jury or one of its members manifests confusion about the law is mandatory." Id., 705. Practice Book § 42-27, "which protects the fundamental rights of the defendant to be fairly tried by a properly instructed jury, is mandatory and not directory." Id., 702. It provides: "If the jury, after retiring for deliberations, requests additional instructions, the judicial authority, after providing notice to the parties and an opportunity for suggestions by counsel, shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the request or to direct the jury's attention to a portion of the original instructions." Practice Book § 42-27.
"[T]he trial court is best suited to determine, on a case-by-case basis, the proper means for reorienting the jury to the proper legal standard." State v. Clark, 264 Conn. 723, 737, 826 A.2d 128 (2003). "In evaluating the propriety of a supplemental charge, we must examine both the main and supplemental charge as a whole." State v. Hopkins, 25 Conn.App. 565, 571, 595 A.2d 911, cert. denied, 220 Conn. 921, 597 A.2d 342 (1991). "[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury . . . In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury." (Internal quotation marks omitted.) State v. Guzman, 125 Conn.App. 307, 314-15, 7 A.3d 435 (2010).
This court recognizes that whether the petitioner had the requisite intent to commit murder was the sole issue disputed at trial and that the jury's note may be indicative of some confusion on the element of intent necessary for a murder conviction. However, in reviewing the jury instructions, including the court's response to the jury note, as a whole, it is not reasonably possible that the court's instruction, when read in their entirety, misled the jury. During its original instructions, the trial court instructed the jury approximately eleven times that murder requires the specific intent to cause the death of another person. For example, the trial court instructed as follows: "As to the first element [of the crime of murder], the state must prove beyond a reasonable doubt that the defendant had the specific intent to cause the death of Willie Vines. The state must prove beyond a reasonable doubt that the defendant in causing the death of another person . . . did so with the specific intent to cause the death of another person. In other words, that the defendant's conscious objective was to cause the death of Willie Vines." The trial court's response to the jury's note regarding the element of intent correctly redirected the jury to these original proper instructions. This response was sufficient to "provide guidance to the jury in applying the law to the facts it [found] established." State v. Fletcher, supra, 10 Conn.App. 704. Notably, Practice Book § 42-27 authorizes a court to respond to a jury's request for additional instruction by directing it to a portion of the original instruction. Based upon the above, it is not likely that the jury was misled by the court's response to its note and thus, there is not a reasonable probability that the petitioner would have prevailed on appeal had this issue been addressed by the Appellate Court.
Petitioner's Exh. 4, pp. 608-25.
Petitioner's Exh. 4, pp. 608-09.
Additionally, although it appears that at least one judge on the Appellate Court may have been inclined to find this issue in the petitioner's favor had the issue been reviewed on the merits, for the petitioner to have prevailed on appeal a majority of the jurists hearing the case would have had to have agreed. See State v. Velez, 113 Conn.App. 347, 966 A.2d 743 (Flynn, J., concurring). Accordingly, one judge's opinion, even when considered in a light most favorable to the petitioner, does not support a finding that there is a reasonable probability that the petitioner would have prevailed on appeal. Reasonable jurists can and do disagree.
See the Concurring Opinion of then Chief Judge Flynn, State v. Velez, infra, at 376-77, in which he expresses some frustration at having to undergo a Golding review of the issue only to deny relief because the trial defense counsel did not object to the instruction. His concurrence does not necessarily indicate that he agreed with the petitioner's argument in this habeas case that the petitioner would have been successful on appeal. Chief Judge Flynn was clearly expressing some displeasure and disagreement with the Supreme Court's holding in State v. Fabricatore, 281 Conn. 469, 481-82 (2007), at the same time he recognized and fulfilled his obligation to follow the mandate of the Supreme Court. It is arguable, but by no means clearly established, that his concurrence was a signal he would have reversed the conviction of the petitioner had the Appellate Court been allowed to consider the issue. A court adjudicating a habeas corpus petition cannot use this concurrence as a basis to conclude that there is a reasonable probability that had Attorney Chong objected to the trial court's actions that Mr. Velez would have been successful in his appeal.
CONCLUSION
Having concluded that the petitioner has failed to meet his burden in proving his claim of ineffective assistance of trial counsel, the petition for a writ of habeas corpus is, thus, denied. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.