47 Conn. App. 253 | Conn. App. Ct. | 1997
Opinion
This is an appeal from the dismissal of an application for a writ of habeas corpus filed by the petitioner, Marvin Beasley. The petitioner was convicted of reckless manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3),
On appeal, the petitioner claims that he was denied effective assistance of counsel when his trial attorney failed to request lesser included offense instructions on second degree manslaughter and criminally negligent homicide. We affirm the judgment of the habeas court.
The habeas court determined that evidence presented at the trial showed
The petitioner fired seven rounds, five of which struck the victim. The victim was struck once in the back, twice in the buttocks, once in the back of his left upper leg and once through his left hand. In his taped statement, in response to a police officer’s question concerning what the victim did once the petitioner
At the trial, the petitioner’s version of the events was somewhat different. He testified that when he saw the victim get off his bike and walk toward him, knowing that the victim’s friends were in the area, in order not to be trapped, he walked around so that no one would be behind him. He further testified that as the victim approached him, he asked the victim why, when the victim was by himself, he “never said nothing, but when his friends were around he would harass me?” He told the victim, “Just end it, you know, let it go.” He testified that the victim said, “My friends aren’t around now” and took off his coat and started walking toward the petitioner. The petitioner stated, “That’s when I knew it wasn’t going to end peacefully. So I had the gun and I fired twice down toward the ground.” At that point, the petitioner indicated, the victim was standing approximately eight feet from him.
Thomas testified at trial that while the petitioner and the victim were talking, they were “about five feet away.” Thomas also testified that there were other people in the area. He stated that “[t]here was like, you know, fifty, twenty-five people out there.” Thomas stated that, as the victim started walking toward the
In essence, the petitioner claimed at trial that he never intended to hit the victim, that he was simply trying to scare him and that the victim was struck accidentally. He claimed that he was unfamiliar with this particular weapon and that he never had fired a pistol before. The petitioner also testified at trial that he fired the shots into the ground “[b]ecause I didn’t want to shoot him or shoot anybody in the area. That’s why I fired down toward the ground and not over here or over there. Because there were people all around.” The petitioner testified that the victim “ran into a dark area.” That the area of the shooting was dark was corroborated by police testimony.
At trial, the petitioner testified that he called the police to turn himself in because he thought that the police could help him prove that he did not actually mean to shoot the victim. Once the police had the petitioner in custody, he led them to the location where he had left the pistol. The pistol was found with a clip in it loaded with six bullets, in addition to one bullet in the firing chamber. At the criminal trial, Officer Kenneth
The petitioner’s trial counsel, Richard Perry, testified at the habeas hearing. Perry, who at the time of the hearing had been an attorney for approximately fourteen years, was employed in the public defender’s office in New London. At the time of his representation of the petitioner, he served the court periodically as a special public defender. Perry stated that he did not file a request to charge on the lesser included offenses of manslaughter in the second degree or criminally negligent homicide because he did not feel that the evidence supported either charge. He based that determination on his own familiarity with weapons as a former police officer and on the facts that the petitioner was not familiar with weapons, that he utilized a .45 caliber semiautomatic pistol and that the pattern of bullet holes found in the victim demonstrated that there were five wounds, all within an area of approximately two feet. He testified to his belief that the petitioner’s version of the accident was not substantiated by the evidence before the jury. He believed that there was no evidence to support the claim of accident apart from the petitioner’s own testimony. Perry testified that, at the time of trial, he believed that his own credibility during argument would be significant for the jury, and he did not feel that he could credibly argue either criminally negligent homicide or manslaughter in the second degree. He also stated that he perceived a detriment to his client if he risked his credibility by arguing lesser included offenses that he thought were not supported by the evidence. He expressed a concern that if he argued too many lesser included offenses, he would risk losing the jury’s favorable consideration of the one lesser included offense, manslaughter in the first degree, on which he believed he could credibly present
At the habeas hearing, attorney Jon Schoenhom testified as an expert in criminal law in support of the petition. Schoenhom, whom the court found to be an experienced criminal defense attorney, knowledgeable in Connecticut criminal law and procedure, offered his opinion that the petitioner was indeed entitled to have the jury charged on the lesser included offenses of manslaughter in the second degree and criminally negligent homicide. Schoenhom further testified that no reasonable attorney would have failed to ask the court to charge the jury on these lesser included offenses. He noted that, as a norm, a reasonably pmdent defense attorney would decline to request a charge on lesser included offenses only in a case in which the defendant claims noninvolvement and where the availability of lesser included offenses might lead to a compromise verdict, thus decreasing the potential for an outright acquittal. It was Schoenhorn’s view that the facts of the allegations against the petitioner and his admitted involvement as the shooter did not present such a situation. Finally, Schoenhom disagreed with Perry concerning the issue of credibility during argument. Schoenhom testified that counsel is not required to articulate an argument for each offense on which the jury has been charged. It was Schoenhom’s view that the mere availability of a lesser included offense before a juiy could
In dismissing the petition, the habeas court found that it was reasonable for trial counsel not to have requested additional lesser included charges on manslaughter in the second degree and negligent homicide.
The petitioner claims that he was denied his constitutional right to effective assistance of counsel guaran
“In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal. 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. Valeriano v. Bronson, 209 Conn. 75, 85-86, 546 A.2d
We cannot, in a habeas corpus appeal, disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993). The habeas court judge, as trier of the facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. Copas v. Warden, 30 Conn. App. 677, 682, 621 A.2d 1378 (1993), on appeal after remand, 234 Conn. 139, 662 A.2d 718 (1995).
The habeas court concluded that the petitioner was not deprived of effective assistance of counsel because his trial counsel’s decision not to request the instructions as to the additional lesser included offenses was reasonable. We agree.
While the petitioner may have been entitled to those two lesser included offense instructions, his counsel’s failure to request them does not, under the circumstances present, necessarily deprive him, as a defendant in a criminal matter, of effective assistance of counsel. See Fair v. Warden, 211 Conn. 398, 404, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989).
The habeas court found trial counsel's testimony credible as to his reason for not requesting the lesser included offense instructions; specifically, to argue the applicability of those lesser offenses would have jeopardized his argument that the petitioner was not guilty of murder. We agree, as the habeas court concluded,
In reviewing a claim of ineffective assistance of trial counsel, we indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; it is the petitioner’s burden to overcome the presumption that his attorney’s actions or inactions were not, in fact, sound trial strategy. See Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985); Larkin v. Commissioner of Correction, 45 Conn. App. 809, 818, 699 A.2d 207 (1997). We also must make every effort to evaluate the challenged conduct from the counsel’s perspective at the time. Magnotti v. Meachum, supra, 22 Conn. App. 674-75.
Guilt or innocence was not the issue at the petitioner’s trial. There was no question that the petitioner caused the death of the victim by shooting him. The sole issue was whether the petitioner’s actions, in firing seven shots in a crowded area and hitting the victim five times, constituted murder or whether the petitioner’s reckless actions under circumstances evincing an extreme indifference to human life made him guilty of manslaughter in the first degree.
After a careful review of the record and transcripts, we agree with the habeas court that the performance of the petitioner’s trial counsel, in not requesting instructions on the lesser included offenses of manslaughter in the second degree or negligent homicide, did not fall below the standard of reasonable competence. Having so concluded, we find it unnecessary to determine whether the habeas court properly dismissed the petitioner’s writ on the basis of the petitioner’s failure to establish prejudice.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”
On direct appeal to this court, the petitioner’s sole claim involved an abuse of discretion in his sentencing.
Because our opinion on the direct appeal, State v. Beasley, supra, 29 Conn. App. 452, does not set forth the facts that the jury reasonably could have found, we use the habeas court’s determinations, as set forth in its memorandum of decision, for that purpose.
The parties stipulated, and the habeas court found, that the petitioner would have been entitled to a jury charge on manslaughter in the second degree, General Statutes § 53a-56, had a proper request been made to the trial court. While not persuaded that the petitioner would have been entitled, as a matter of law, to a jury instruction on criminally negligent homicide, the habeas court assumed, arguendo, that one would have been given if requested.
“[T]o show prejudice, the petitioner must establish that there exists a reasonable probability that the result of the trial would have been different but for counsel’s ineffective assistance. Levine v. Manson, [supra, 195 Conn. 640]. A reasonable probability is a probability sufficient to undermine confidence in the verdict. Bunkley v. Commissioner of Correction, [supra, 222 Conn. 454].” Dontigney v. Commissioner of Correction, 42 Conn. App. 304, 305, 679 A.2d 55, cert. denied, 239 Conn. 918, 682 A.2d 999 (1996).