Opinion
No. CV 05 4000457
May 15, 2008
Memorandum of Decision
The petitioner was tried and convicted of first degree robbery, second degree larceny, and first degree kidnapping. The court, Thompson, J., imposed a net effective sentence of seventeen years in prison followed by eight years of special parole. The Appellate Court affirmed. State v. Young, 76 Conn.App. 392, 819 A.2d 884, cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003). The petitioner then filed this habeas corpus petition alleging ineffective assistance of his trial counsel, attorney Beth A. Merkin, and appellate counsel, attorney Mary Ann Royle. The court denies the relief sought in the petition.
I
The Appellate Court determined that the jury could reasonably have found the following facts. "At approximately 5:20p.m. on December 12, 1999, two employees at the Family Dollar store in Hamden, Laura Chesmar and George Cole, were approached by the defendant as they were counting cash at the registers. The defendant ordered Chesmar and Cole to sit on the floor while he took cash from the registers. He then ordered them to accompany him to the back of the store, where he forced Cole at gunpoint to unlock the door to the store's back office. Once inside the office, the defendant forced Cole to retrieve approximately $8,000 from a money box kept in a filing cabinet. He then bound Chesmar and Cole using electrical cords. They subsequently freed themselves and escaped to a nearby restaurant, where they telephoned the police." Id., 394-95.
II
At the criminal trial, Merkin raised a claim under Batson v. Kentucky, 476 U.S. 79 (1986), when the state exercised a peremptory challenge to L.F., a black venireperson. The trial court denied the challenge, stating that "on this record, I'm not prepared to make a finding that the reasons given are [pretextual]." (Exhibit (Ex.) O, p. 80.) The petitioner claims that Merkin was ineffective for failing to renew the CT Page 8213 Batson claim when the state subsequently declined to use a peremptory challenge against E.H., a white venireperson, whom the petitioner now claims was similarly situated.
The court uses the initials of the venirepersons in question to protect their privacy.
Royle raised this issue on appeal, but the Appellate Court declined to review it under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The Appellate Court stated that "[i]t would be unfair and unreasonable to require the trial court to conduct a comparative evaluation of the backgrounds of venirepersons who have not been identified by the defendant in support of his Batson claim." (Internal quotation marks omitted.) State v. Young, supra, 76 Conn.App. 399.
A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).
In this case, Merkin acted reasonably in not renewing the Batson challenge because a comparison of the voir dire responses of the two venirepersons in question does not raise an inference of discrimination. L.F. had told the prosecutor that he had a good friend who was incarcerated for murder and that he was hoping to renew contact with him. L.F. had also volunteered statements at least five times, some of which were apparently prepared remarks, to the effect that "God is the final judge," or "Christ is the word," and was wearing a shirt containing written Bible scriptures. The prosecutor also noted that L.F. had hesitated before responding to questions regarding his willingness to accept instructions from the judge. (Ex. O, pp. 60-62, 69-70, 74-75, 79-80.)
In contrast, juror E.H. presented none of these concerns. The only similarity was that E.H. had several friends and possibly some relatives who had been arrested. (Ex. O, p. 152.) None of the friends had been arrested on serious charges, however, and there was nothing comparable to having a friend in prison for murder whom he sought to visit. There was also no evidence that E.H. had religious views that might interfere with his willingness to follow the law.
Thus, there was no basis to infer that the prosecutor's decision to accept E.H. was a product of bias in favor of white jurors or discrimination against African-American jurors. The petitioner therefore has not overcome the presumption that trial counsel "made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, supra, 89 Conn.App. 376. Nor has the petitioner shown any prejudice from the seating of juror E.H. See Goeders v. Hundley, CT Page 8214 59 F.3d 73, 75 (8th Cir. 1995) (habeas petitioner challenging failure to strike juror must show that "juror was actually biased against him"). Accordingly, the petitioner has not proven ineffective assistance of trial counsel.
In that regard, the following exchange occurred during voir dire of E.H.
Merkin: My client is African-American. I'm wondering whether you had any negative feelings about African-American people which would enter into this courtroom at all?
E.H: No, not at all.
(Ex. O, p. 154.)
The petition also alleges that Merkin was ineffective in failing to raise a "dual motivation" claim with regard to the prosecutor's use of a peremptory against L.F. Such a claim may arise when a prosecutor relies on both impermissible, discriminatory reasons and valid, nondiscriminatory reasons to excuse a juror. See State v. Hinton, 248 Conn. 207, 226, 726 A.2d 531, cert. denied, 528 U.S. 969 (1999). Here, however, the petitioner can point to no impermissible reasons advanced by the prosecutor in excusing L.F. Accordingly, the dual motivation claim lacks a factual foundation.
III A
On appeal, the Appellate Court reviewed and rejected the petitioner's claim that the trial court failed to apply the appropriate three-step test to evaluate a Batson claim. State v. Young, supra, 76 Conn.App. 396-98. The Court noted that the petitioner did not challenge whether the trial court "properly concluded that the state's proffered reasons for exercising the peremptory challenge were not pretextual." Id., 398 n. 2. The petitioner's initial claim of ineffective assistance of appellate counsel, as alleged in the amended petition, is that Royle failed to raise this issue.
It is not immediately clear how the issue raised differs from the issue not raised. The Appellate Court quoted the following three-step Batson test: "First, the defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race . . . In the second step, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question . . . The third step requires the defendant to show that the articulated reasons of the state are insufficient or merely pretextual." (Citations omitted; internal quotation marks omitted.) Id., 397. It is hard to see how, if the trial court correctly applied this test, as the Court held, it would not have "properly concluded that the state's proffered reasons for exercising the peremptory challenge were not pretextual." Id., 398 n. 2. Nonetheless, the court will attempt to examine the claim as alleged in the petition and identified by the Appellate Court.
Review of the record and the applicable authorities reveals no merit whatsoever to an appellate claim that the trial court erred in finding that the prosecutor's reasons for excusing L.F. were not pretextual. Our courts have "identified several specific factors that may indicate that [a party's removal] of a venireperson through a peremptory challenge was . . . motivated [by race or gender]. These include, but are not limited to: (1) [t]he reasons given for the challenge were not related to the trial of the case . . . (2) the [party exercising the peremptory strike] failed to question the challenged juror or only questioned him or her in a perfunctory manner . . . (3) prospective jurors of one race [or gender] were asked a question to elicit a particular response that was not asked of the other jurors . . . (4) persons with the same or similar characteristics but not the same race [or gender] as the challenged juror were not struck . . . (5) the [party exercising the peremptory strike] advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically . . . and (6) the [party exercising the peremptory strike] used a disproportionate number of peremptory challenges to exclude members of one race [or gender] . . ." (Citations omitted; internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 284-85, 750 A.2d 1059 (2000). The petitioner has not alleged, briefed, proven, or otherwise established the existence of any of these factors in this case.
After overseeing voir dire of the juror and hearing arguments by both sides, the trial court, as mentioned, made a specific finding that the reasons given by the state for challenging L.F. were not pretextual. (Ex. O, pp. 74-80.) "[T]he trial court's decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court's evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge . . . Accordingly, a trial court's determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) Id., 285-86. Given this deferential standard of review, it would have been especially difficult for Royle to prevail on appeal in challenging the trial court's finding of no pretext.
Accordingly, there was no deficient performance in failing to raise this issue. Further, there was no prejudice, which is proof of "a reasonable probability that, but for his counsel's [error], he would have prevailed on his appeal." Small v. Commissioner of Correction, 286 Conn. 707, 720 (2008) (quoting Smith v. Robbins, 528 U.S. 259, 285 (2000)). The petitioner has not shown how raising this issue on appeal would, with reasonable probability, have led to a showing of harmful error and a reversal of the conviction. Accordingly, the petitioner has failed to prove ineffective assistance of counsel in this regard.
B 1
The remaining claims of ineffective assistance of appellate counsel focus on review of the trial court's ruling on a motion to suppress filed by Merkin. The Appellate Court made the following findings.
Prior to trial, the defendant filed a motion to suppress Cole's in-court identification of the defendant. At the suppression hearing, Cole testified to the following facts. At some time subsequent to the defendant's arrest, the office of the victim advocate informed Cole that the defendant was scheduled for arraignment at the courthouse in Meriden. Cole stated that he decided to attend the arraignment because he "just wanted to see what was . . . going on with the case." When the prosecutor asked Cole whether his intention in attending the arraignment was "to identify anybody," Cole answered in the negative. The defendant's name was announced as he was brought into the courtroom for arraignment. Cole was able to view the back of the defendant's head and "kind of a profile of his face." On the basis of his view of the defendant at the arraignment, Cole concluded that the defendant could have been the man who committed the robbery on December 12, 1999.
In ruling on the motion to suppress, the court found that Cole's ability to identify the defendant at trial would be based on his recollection of the robbery, rather than anything he might have seen at the defendant's arraignment. The court also concluded that the action of the office of the victim advocate, in informing Cole of the defendant's arraignment, did not constitute state action implicating the defendant's right to due process. Accordingly, the court denied the defendant's motion to suppress Cole's in-court identification.
The defendant argues that the court improperly denied his motion to suppress because Cole's viewing of the defendant at the arraignment was arranged by state action. Specifically, the defendant argues that because the office of the victim advocate, a state agency, informed Cole of the arraignment, his subsequent attendance at that proceeding was an identification compelled by state action. The defendant further argues that the court should have concluded that Cole's viewing of the defendant at the arraignment was an unnecessarily suggestive identification procedure.
. . .
The transcript in the present case does not contain a sufficiently detailed statement of the court's findings. Specifically, the court did not make any findings whatsoever regarding the suggestiveness of the arraignment proceedings. Furthermore, with regard to the reliability of the in-court identification, the court's only express finding was that the identification was based on Cole's observations on the day of the robbery, rather than anything that took place at the arraignment. The court did not indicate what factors it weighed in making the reliability determination. The defendant did not request an articulation of the court's findings or reasoning on those issues . . . Consequently, even if we were to agree with the defendant's argument that the action of the office of the victim advocate in notifying a crime victim of a defendant's arraignment constitutes the type of state action necessary for a successful challenge to the reliability of an in-court identification, the record would be inadequate to review the court's determination regarding the suggestiveness of the arraignment proceedings and the reliability of the in-court identification. We therefore decline to review the defendant's claim.
(Citation omitted.) State v. Young, supra, 76 Conn.App. 406-10.
The petitioner initially alleges that Royle rendered ineffective assistance of appellate counsel by failing to file a motion for articulation of the trial court's reasoning in denying the motion to suppress. The court rejects this claim because appellate counsel could not reasonably have anticipated that the Appellate Court would require articulation in this situation.
The petitioner also alleges that Royle was ineffective in failing to obtain a signed transcript of the trial court's oral decision as required by Practice Book § 64-1(a). The Appellate Court noted this omission, but added: "[Nevertheless, we] have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court's findings." (Internal quotation marks omitted.) Id., 409. Based on the tenor of this statement, and the fact that the Appellate Court went on to address the other difficulties in reviewing the issue, as quoted above, it is apparent that the Court's decision not to review the issue did not hinge on the purely technical point that the trial court had not signed the transcript. Thus, the petitioner was not prejudiced solely by any failure of counsel to obtain a signature on the transcript.
This case is not one in which the trial court did not decide the issue raised on appeal. On the contrary, as acknowledged by the Appellate Court, the trial court did decide the issue of whether the identification of the petitioner at the arraignment played any improper role in the subsequent in-court identification of the petitioner by Cole. The trial court ruled as follows: "I do not find that based upon the testimony that I heard that Mr. Cole would not be able to identify Mr. Young prior to that court appearance in Meriden and thereafter now is able to identify him. He clearly testified that his ability to identify Mr. Young would be based upon what he saw on the day of the robbery and nothing that took place at the Meriden courthouse. That's my recollection of his testimony. And I think he was quite adamant as to that. But even that doesn't solve the problem that this is something that he did on his own, and I really can't accept the argument that being advised by a victim's advocate as to what your rights are as a victim translates into a state action. I just can't accept the argument." (Ex. R, p. 18.) Although the court did not explicitly decide the suggestiveness of the Meriden courthouse identification, which was part of the claim on appeal, it found that there was no need to do so because Cole could make an in-court identification independently of the Meriden encounter.
Royle included the complete ruling of the trial court, which went on to address other contentions such as the identification by Chesmar, in the appendix to her appellate brief. (Ex. D, pp. 115-18.) The trial court also discussed the issue in similar terms prior to making this ruling. (Ex. R, pp. 16-17.) Part of that discussion is missing from the appendix submitted by the parties as an exhibit in this trial. (Ex. D, pp. 112, 114.)
It is not clear what the Appellate Court meant by stating that "[t]he court did not indicate what factors it weighed in making the reliability determination." State v. Young, supra, 76 Conn.App. 410. The only reliability claim raised on appeal concerned the independence of an in-court identification from the Meriden courthouse identification. (Ex. C, pp. 32-34.) The trial court fully addressed that issue. The petitioner did not argue that the other factors affecting reliability of an out-of-court identification — such as degree of attention, accuracy of prior description, and amount of time between the crime and the identification; see State v. Ledbetter, 275 Conn. 534, 553, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082 (2006) — somehow rendered an in-court identification inadmissible. There was therefore no need for the trial court to address that issue.
The trial court's ruling thus appears to have addressed the necessary issues, and to have done so with reasonable clarity. Nonetheless, had the state argued in its appellate brief that the trial court's ruling was not sufficiently clear, or that it did not address a critical issue, such an argument might have alerted Royle to the need for a motion for articulation. In this case, however, the state's appellate brief made no argument that the record was not adequate for review. (Ex. E, pp. 30-35.)
Further, in reasonably contemporaneous decisions, the Appellate Court did not find it necessary to have detailed findings by the trial court in order to review denials of motions to suppress identification evidence. For example, in State v. Colon, 70 Conn.App. 707, 799 A.2d 317, cert. denied, 261 Conn. 933, 806 A.2d 1067 (2002), the Appellate Court reviewed a suppression motion denial without any reference to the content of the trial court's decision. The Court observed that "[W]e examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact finding of the trial court . . ." (Internal quotation marks omitted.) Id., 722. The Court appeared to make its own findings. And in State v. Sanchez, 69 Conn.App. 576, 579-83, 795 A.2d 597 (2002), the Appellate Court reviewed what was essentially a summary denial of a suppression motion. The Court determined on its own what facts the trial court "reasonably could have found . . . during the hearing on the motion to suppress." Id., 579. See also State v. Harris, 85 Conn.App. 637, 651, 858 A.2d 284, cert. denied, 272 Conn. 901, 863 A.2d 695 (2004) ("The fact that the trial court did not, sua sponte, articulate its reasons for denying the defendant's motion to suppress does not warrant the conclusion that the court did not make a proper determination as to the suggestibility of the arrays").
The Court stated: "Taking all of the circumstances into consideration, we conclude that the identification was reliable. The witnesses testified that Tirado's apartment was well lit and they had a clear view of the incident. In addition, all of the witnesses knew the defendant prior to the incident and gave detailed descriptions of him and his vehicle to the police. Furthermore, one of the witnesses knew exactly where the defendant lived. The identification also occurred only hours after the shooting while the events were still fresh in the minds of the witnesses. Given the totality of the circumstances, irreparable misidentification was not likely." Id., 723.
The trial court ruled: "Contrary to [what has] been suggested, I find that there's absolutely no undue suggestiveness. When I was first given this photo array, I had to look at [the defendant] on a number of occasions and then look back, actually, to find [the defendant]. You know, I have never seen this before. I find — denied. I'm not going to go into it any further. Let's move forward." (Internal quotation marks omitted.) Id., 580 n. 1.
Thus, there was no deficiency in Royle's failure to anticipate the need for a motion for articulation. The trial court's decision addressed the issues raised with reasonable clarity and detail. The state did not argue that the record was inadequate for review. And the Appellate Court has not necessarily required anything more than a summary denial from the trial court. Accordingly, Royle's performance was not ineffective on this issue.
Moreover, the petitioner cannot demonstrate that there was "a reasonable probability that, but for his counsel's [error], he would have prevailed on his appeal." (Internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 720 (2008). To begin with, it would be pure speculation to conclude that Judge Thompson would say anything in an articulation that would undermine his findings that Cole's in-court identification was independent of the Meriden arraignment viewing or that the actions of the office of the victim advocate constituted state action. Indeed, the factual finding that Cole's identification was independent of the arraignment encounter is well-supported. The testimony at the habeas trial did not provide any other reason why the petitioner would have prevailed on this issue on appeal. Accordingly, the petitioner cannot prove prejudice.
During the hearing on the suppression motion, the following exchange took place.
Merkin: Might that viewing of Mr. Young on that day affect anything now if in fact you were asked to identify him?
Cole: No. Because, you know, the picture I have of him in my mind is when he popped up with a gun at the time. That's the picture I have in my mind.
(Ex. Q. p. 103.)
The petitioner alleges additionally that Royle was ineffective based on the Appellate Court's finding that she had failed to brief adequately the contention that the actions of the office of the victim advocate constituted state action. (Amended petition, count two, paragraph 6.b.) The Court, however, made no such finding. Royle in fact devoted four pages of her reply brief to this argument. (Ex. G, pp. 4-8). There is therefore no merit to this allegation.
2
The Appellate Court noted that the petitioner had failed adequately to brief the claim that Chesmar's in-court identification was tainted by earlier out-of-court identification procedures that were unnecessarily suggestive. State v. Young, supra, 76 Conn.App. 406 n. 5. The petitioner also alleges that Royle was ineffective in this regard.
The court agrees, as noted by the Appellate Court, that Royle "merely [stated] the facts and procedural background underlying the issue, but [failed] to provide any legal analysis." Id., (Ex. C, pp. 34-35.) But the petitioner cannot prove "a reasonable probability that, but for his counsel's [error], he would have prevailed on his appeal." (Internal quotation marks omitted.) Small v. Commissioner of Correction, supra, 286 Conn. 720. The petitioner's claim of suggestiveness was that, after Chesmar selected the defendant's photograph from an array presented to her by the police, she asked whether she had picked the person who was a former employee of the Family Dollar store, and the police answered in the affirmative. See State v. Young, supra, 76 Conn.App. 406 n. 5. Because the officer made the remark after the identification, however, it could not have influenced her initial selection of the petitioner. See State v. Smith, 107 Conn.App. 666, 675-76 (2008). Further, as our Supreme Court has recognized, "[w]hen presented with a photographic array by the police, crime victims reasonably can surmise that the police may consider one of the persons in the array to be a suspect in the case." State v. Reid, 254 Conn. 540, 557, 757 A.2d 482 (2000). Thus, there is no likelihood that the petitioner would have prevailed in establishing any improper suggestiveness in the earlier identification by Chesmar. The petitioner, therefore, has failed to prove prejudice.
For that reason, there is no occasion to consider whether, even if the petitioner had succeeded in establishing on appeal that Chesmar's identification was inadmissible, the petitioner would have established harmful error and prevailed on appeal in obtaining a new trial. It is true that the law in Connecticut is still that the erroneous admission of identification evidence can never be harmless. See State v. Gordon, 185 Conn. 402, 419-20, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989 (1982). However, that ruling might give way in a case, such as this one, in which the identification in question is not the sole evidence of identity. See State v. Monteeth, 208 Conn. 202, 217, 544 A.2d 1199 (1988) (Healy, J., dissenting). See also State v. Young, supra, 76 Conn.App. 405 (describing the state's case against the petitioner as strong, and resting on multiple identifications). Indeed, erroneously admitted identification evidence is more akin to an erroneously admitted confession, which is subject to harmless error analysis; see State v. Hafford, 252 Conn. 274, 297, 746 A.2d 150, cert. denied, 531 U.S. 855 (2000); than a structural error affecting the entire conduct of the trial, which is not. See State v. Jenkins, 271 Conn. 165, 187, 856 A.2d 383 (2004). Thus, there is at least a colorable argument that the state could have made that any error in admitting the Chesmar identification was harmless beyond a reasonable doubt.
IV
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.