57 Conn. App. 651 | Conn. App. Ct. | 2000
Opinion
The petitioner, Ronald Lee Daniel, has taken this appeal from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus in which he made four claims challenging the legality of his confinement. On appeal, the petitioner claims that the habeas court acted improperly (1) in finding that the record established that his plea of guilty was knowing, intelligent and voluntary,
The petitioner was arrested in March, 1988, and charged under General Statutes § 53a-54a with the March 19, 1988 murder of Marcel Malcolm. Attorney Michael A. Peck was retained on March 20, 1988, to represent him. On May 27, 1988, the petitioner was scheduled for a probable cause hearing on the murder charge. On that date, Peck informed the court that the probable cause hearing was being waived and requested the court to make a finding of probable cause preliminary to the petitioner’s entering a plea to the murder charge. After the court, Kline, J., inquired of the petitioner concerning Peck’s statement, the court made a finding that probable cause existed to prosecute the petitioner for murder under § 53a-54a. On May 27,1988, the petitioner entered a plea of not guilty to the charge of murder and elected a jury trial. On July 14, 1989, however, the petitioner entered a plea of guilty, and, following a plea canvass, the trial court, Norko, J., accepted his guilty plea and made a finding of guilty. The petitioner’s guilty plea was entered pursuant to an agreement that assistant state’s attorney Warren Maxwell would recommend a sentence of forty years. At
I
We first take up the claim that the habeas court acted improperly in finding that the petitioner’s plea canvass was adequate to demonstrate a knowing, intelligent and voluntary guilty plea.
“A guilty plea . . . that is not both voluntary and knowing is in violation of due process and thus void. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Lopez, 197 Conn. 337, 341, 497 A.2d 390 (1985). For a guilty plea to be truly voluntary, the defendant must understand the law in relation to the facts. McCarthy v. United States, supra, 466. Moreover, since a defendant waives several constitutional rights when he elects to plead guilty to a criminal offense, the choice of a guilty plea is of profound significance. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Childree, 189 Conn. 114, 120, 454 A.2d 1274 (1983). In pleading guilty, a defendant waives his privilege against compulsory self-incrimination, his right to trial by jury and his right to confront his accusers. Boykin v. Alabama, supra [243]; State v. Lopez, supra [341]; State v. Childree, supra [120]; see Practice Book § 711 (5) [now § 39-19 (5)]. A guilty plea, therefore, is constitutionally valid only if the record affirmatively discloses that the plea was entered voluntarily and intelligently. Boykin v. Alabama, supra, 242; State v. Lopez, supra [342]; State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108 (1977).” Oppel v. Lopes, 200 Conn. 553, 556, 512 A.2d 888 (1986). A guilty plea may satisfy constitutional requirements even in the absence of literal compliance with the prophylactic safeguards of Practice Book §§ 31-19 and 31-20, respectively. State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940,
A
We do not agree that at the time of taking
Upon inquiry by the trial court, the prosecutor also informed the court that the $400 debt referred to arose out of an ongoing arrangement whereby the petitioner would sell drugs for the victim, and the petitioner failed to remit $400 to the victim. At that time, the prosecutor
At that point, the trial court made the following inquiries of the defendant and received the following responses:
“The Court: Thank you, Mr. Maxwell. Mr. Daniel, the facts indicated by the state on the record—you’ve [pleaded] guilty to murder before this court, based upon the recitation of Mr. Maxwell of the facts, do you dispute any of the facts as indicated by the state on the record?
“The [Petitioner]: What I just heard?
“The Court: Yes.
“The [Petitioner]: Yes, I do.
“The Court: Which facts do you dispute, sir?
“The [Petitioner]: That’s not what happened.
“The Court: Now, you’re being charged with murder, you’ve just [pleaded] guilty to murder. And the gravamen obviously is the moment when, according to the state, you shot the victim here on three—three different occasions. Are those facts accurate?
“The [Petitioner]: Yes.
“The Court: So you did have the shotgun in your hand, the facts as far as the state has alleged on the record of shooting the victim here, [racking] the gun
“The [Petitioner]: Yes.
“The Court: All right. Now, as far as the factual basis which you dispute, tell me about that.
“The [Petitioner]: As far as what happened between me and [Osborne], and [Gordon], the witness who was in the white [Nissan], that’s not trae.
“The Court: Explain further, what do you mean it’s not true? Why isn’t it true?
“The [Petitioner]: As far as—I mean, what happened, or is it just—
“The Court: Tell me. Sure.
“The [Petitioner]: The call that Robert Gordon got, he didn’t get a call from me telling him to meet me on Lyme Street. As far as Mark Osborne telling me about the gun and I’m inviting him along, I didn’t invite [Osborne] anywhere.
“The Court: He just came along?
“The [Petitioner]: Just came.
“The Court: Is there anything else you dispute about the facts?
“The [Petitioner]: No.”
The petitioner argues that the trial court “dismisses” his objections to the recited facts as “insignificant in the face of the later reading of the murder [statute], including the element of intent to kill.” He maintains that the trial court’s response to his dispute with the factual basis “was to inform him that the only thing that mattered, the ‘gravamen’ of the offense was the pulling of the trigger” and that he was not informed that the court intended to draw an inference to cause
In context, it is not quite correct for the petitioner to argue that the court dismissed his objection as insignificant in the face of its later reading of the murder statute. In making this argument, the petitioner does not analyze the quality of his objections in the first instance with reference to the matter at hand, i.e., his plea to murder. The state’s proffer said that the petitioner invited Osborne to join him. The petitioner denied this, saying that he “didn’t invite [Osborne] anywhere.” That is a wholly peripheral matter; it is not material to the validity of the canvass. The state’s second proffer that the petitioner disputes is of the same quality, i.e., that Gordon got a call from the petitioner to meet him on Lyme Street. Parenthetically, the prosecutor, at the time of the plea, informed the trial court that Gordon, who observed “this whole thing,” was not even arrested and was prepared to testify for the state in this case. Moreover, after the court listened to the petitioner on his “dispute” as to the facts, the court then asked him, “Is there anything else you dispute about the facts?” and the answer was, “No.” Even if we assume that the petitioner was correct in the two instances of “dispute” to which he refers, the recitation of the facts by the prosecutor still provided a valid factual basis for the plea of guilty.
B
The petitioner’s allusion to the trial court’s use of the term “gravamen” as somehow misleading him lacks merit. Again, when this “gravamen” language is read in context, coming as it does after the prosecutor’s long recitation of the proffered factual basis of the charge of murder, it is clear that the court is directing the
C
In addition, the petitioner claims that the “defect” in his plea was not “overcome” by the trial court’s reading the murder statute. It is not required, however, that the trial court read the charging statute to the petitioner if there are other reasons to believe that the petitioner understands that statute. State v. Wideman, 38 Conn. App. 581, 586, 663 A.2d 409, cert. denied, 235 Conn. 907, 665 A.2d 906 (1995). Moreover, the court did read the murder statute, which included the element of intent.
In canvassing the matter with the petitioner, the trial court must make sure that he had a full understanding of what the plea connotes and of its consequence. Boykin v. Alabama, supra, 395 U.S. 244. We are aware that although a guilty plea is an admission of all the elements of a formal criminal charge, it still is not truly voluntary unless the defendant can be said to possess an understanding of the law in relation to the facts. McCarthy v. United States, supra, 394 U.S. 466.
The record here justifies the conclusion that the petitioner’s plea was knowing, intelligent and voluntary. On the guilty plea, the court had the authority to draw the inference of intent; it properly did so here. Our Supreme Court has stated that “[o]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill. . . . State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977). . . . State v. Stanley, 223 Conn. 674, 680, 613 A.2d 788 (1992).” (Internal quotation marks omitted.) State v. Mejia, 233 Conn. 215, 225, 658 A.2d 571 (1995). This is one such instance, given, inter alia, the shooting of
II
We now take up the petitioner’s claim that the habeas court acted improperly in rejecting his claim that he was denied the effective assistance of counsel in the underlying criminal proceeding. Included in this claim are the petitioner’s arguments that the habeas court acted improperly in that it used a subjective standard to decide whether he had proven actual prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and that the habeas court should have concluded that he had proven actual prejudice in that it was reasonably likely that there would have been a different outcome absent the ineffective assistance of counsel. He claims specifically that he proved actual prejudice from his counsel’s failure to investigate the facts and to understand the law not only prior to entry of his guilty plea but also at the time of entry of his guilty plea. We disagree.
“Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Quintana v. Commissioner of Correction, 55 Conn. App. 426, 435-36, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999).
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. Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991). Thus, he must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, supra, 466 U.S. 694. In this context, a “reasonable probability that, 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 in the case.” Id., 693. “Rather, it merely requires the petitioner to establish ‘a probability sufficient to undermine confidence in the outcome.’ Id., 694.”
“In Hill v. Lockhart, [474 U.S. 52, 57-58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], the court determined that
The petitioner, while agreeing that the habeas court quoted correctly in its decision “the objective standard [for prejudice] set out in Strickland, Hill and Copas,” argues that when the court ruled on prejudice, it did so solely by reference to its own confidence in the outcome, refusing to predict by reference to a jury. He claims that by allegedly doing so, the habeas court was substituting its own reaction to the evidence for that of the hypothetical jury, “thus erroneously applying a subjective measure of the evidence on the question of prejudice.” We do not agree.
“We . . . examine the trial court’s memorandum of decision to understand better the basis of its decision and to determine the reasoning used by it in reaching its conclusion.” Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 404, 480 A.2d 552 (1984). The petitioner states that the habeas court acted improperly when it stated, “[i]t is not the court’s function to speculate whether the proffer, at trial, of the evidence adduced at the habeas trial might have affected the factual decision makers, but rather, whether there is a sufficient probability of a different outcome so as to undermine the court’s confidence in the judgment of guilt.” Any fair discussion of this contention must be put in context by considering the sentence that precedes the challenged sentence as well as the sentences that follow it. The preceding sentence states: “While habeas counsel has diligently presented evidence to suggest areas of reasonable doubt, including forensic evidence concerning the victim’s gunshot wounds, opinion evidence regarding the trajectory and distance from which the mortal shots were fired, inconsistent statements from
The sentences following the challenged sentence state: “Given the operative physical facts of this shooting, combined with the availability of witness testimony consistent with the state’s theory of the case, the court is unpersuaded that there is a reasonable probability that a trial would have resulted in a more beneficial outcome to the petitioner. Counsel’s failures do not undermine the court’s confidence in the court’s judgment of guilt.” It is apparent from a reading of the challenged sentence in context that the habeas court, having earlier laid out the controlling law, did not apply a subjective standard as claimed, but rather applied the operable legal standard. Even in the challenge, the court correctly speaks of the requirement of the existence of a probability of a different outcome so as to undermine the court’s confidence in the judgment of guilt. That, the habeas court stated, is its function. The preceding sentence states that the court is “unpersuaded” of a “reasonable likelihood” of a “different verdict” had the petitioner chosen to go to trial, again invoking applicable legal principles. The sentence following the challenged sentence states again that it is “unpersuaded” that there is “a reasonable probability that a trial would have resulted in a more beneficial outcome to the petitioner,” again applying correctly the relevant law. Finally, the next sentence concludes that the failures of counsel at the entering of the guilty plea “do not undermine the court’s confidence in the court’s judgment of guilt.”
The petitioner, in his “subjective standard” claim, suggests that the habeas court ran afoul of the Hill and Strickland courts that the “predictions” on the
B
Next, the petitioner claims that the habeas court improperly found that he had not proven actual prejudice after it found that counsel’s representation was inadequate. To obtain relief under the Strickland test on a constitutional claim of ineffective assistance of counsel, the petitioner must meet both “deficient performance” and “actual prejudice.” Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 393, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999); see Bunkley v. Commissioner of Correction, supra, 222 Conn. 445. Here, the habeas court
The matter, however, does not end there because, according to the aforementioned Strickland test, the petitioner now must prove actual prejudice. To this end, the petitioner argues that counsel failed to investigate the facts adequately and to advance valid defenses. We will examine these claims in turn.
1
An examination of the transcript of the proceedings in the habeas court discloses that petitioner’s counsel,
Reference to proceedings in the habeas court and evidence presented there is helpful on this branch of the case. The statements of Osborne and Gordon, consistent with the state’s case, disclose the following.
Gordon knew that the petitioner used and sold cocaine supplied by the victim. Earlier on the night of
Immediately after the shooting, the Mazda, operated by Grant, reappeared at the scene. The petitioner got in the passenger side of the Mazda, having thrown the gun into the car. Grant told the petitioner to check the victim’s body for drugs and cash. After the petitioner did this, Grant drove the petitioner and Osborne away from the scene and dropped them off separately a few blocks from the scene. Later, the petitioner called Osborne and told him to wipe the fingerprints off the shotgun, which he did.
The petitioner argues that this version of the shooting offered by statements of Osborne and Gordon is not reliable. Moreover, he appeal’s to claim that the following statements by Cornell Wright
Wright, who resided in the Lyme Street neighborhood, said that he was looking out his living room window before the shooting when he saw a white Nissan occupied by two males pull up and park. He then saw a light blue hatchback arrive and the driver and a passenger get out. They approached the Nissan and “appeared to argue with the driver.” In the meantime, the passenger in the white car had gotten out and had gone to the comer of Harold and Lyme Streets, which was nearby. Then Wright said that he looked away from the scene to look at his television. The next thing he heard was the male on the corner yell, “No,” and Wright looked out and saw one of the males by the Nissan reach inside his jacket and pull out something. Wright then heard one shot and the male on the comer yelled, “No, no.” Two more shots followed. The two males in the street jumped into the blue car, as did the male on the comer, and the blue car fled the scene. These three men were all black males and all wearing stonewashed jackets, jeans and sneakers. A second incident report compiled by Detective Nicholas Russo indicates that Wright said that he could not see which of the males was the shooter
Edward McDonough, the deputy chief medical examiner, performed the autopsy on the victim. He testified that the victim was shot three times—in the face, neck and left shoulder. It was his opinion that the shots were fired from about three to four feet from the victim.
2
We turn now to the petitioner’s claim that a different and better outcome would have come about if Ms counsel had investigated and advanced the defense of justification (self-defense), wMch was a valid defense. TMs different outcome, he suggests, could be an acquittal by a jury, a conviction on a lesser included offense, a less severe sentence or an agreement by the prosecutor to reduce the nature of the crime charged down from murder.
“To evaluate such a claim properly, it is customary for the reviewing court to decide whether the affirmative defense at issue would have succeeded at trial. Hill v. Lockhart, supra, 474 U.S. 59; Copas v. Commissioner of Correction, [supra, 234 Conn. 162-63]. If it is likely that the affirmative [defense] of self-defense . . . would have succeeded at trial, then the petitioner has demonstrated the required prejudice to prevail on his ineffective assistance of counsel claim.
“When reviewing this claim, we 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 these circumstances, the challenged action might be considered sound trial strategy. . . . Levine v. Man
It is our law that under General Statutes § 53a-19 (a)
a
Here, the accounts of the shooting given to the police by Osborne and Gordon show that the petitioner was
Neither Osborne nor Gordon indicated that the victim said or did anything of an aggressive nature, although the victim did demand that the petitioner pay him the debt he was owed. The petitioner displayed the shotgun, issued his grim “five seconds” statement and shot the victim three times, having to rack the shotgun three times to do so.
The petitioner’s evidence does not really address the initial aggressor issue. It endeavors to denigrate the statements of Osborne and Gordon, suggesting that their own circumstances, including their immunity status, contribute to compromising their credibility.
Wright was in his living room at his home at about 7:30 p.m. on March 18, 1988, watching his television.
Likewise, Hampton’s statement does not avail the petitioner. When Hampton came to visit his friends on Lyme Street, he saw three males leaning against the driver’s side of a “small white vehicle” parked on Lyme Street. He said that “they did not appear to be arguing” and that they all seemed to know each other and “were just talking like old friends.” He left Lyme Street before any shooting started, and, when he returned to his friends’ house there, the police had already marked off the area as a crime scene. It seems clear that Wright’s statement would be of dubious value and that of Hampton of marginal utility, if any, in supporting the petitioner’s claim that both would have supported his claim that he was not the shooter, but rather that both Wright’s and Hampton’s statements are consistent with Osborne, Grant and Gordon participating.”
This theory is also questionable, even when one considers the petitioner’s claim that the victim had a propensity for violence. The victim’s girlfriend, Sabrina Reynolds, did tell a detective that the victim “used to carry a gun often or have it in the trunk of his vehicle.”
b
The petitioner’s self-defense claim would also fail because the facts clearly demonstrated that he had used excessive force. His evidence on this issue is seriously wanting. He argues that “the physical evidence was inconsistent with the claim that the shotgun had been
We conclude, on the basis of the foregoing, that a reasonable investigation by the petitioner’s counsel would have disclosed that on the evidence, the state reasonably could have defeated a claim of self-defense by demonstrating that the degree of force used by the
3
Next, the petitioner claims that he has proven that, but for his counsel’s ineffectiveness, there was a reasonable probability of a better outcome based on the theory that he acted without the intent to kill. We do not agree. In making this claim, he refers to the influence upon him of drugs, his fear of the victim, his interest at most to injure, rather than kill the victim, all of which point to a lesser included offense of murder, an acquittal or a more favorable recommendation by the prosecutor.
As to his mental state, the petitioner claims that “investigation of school records or even family history would have disclosed a substance abuse history.” There was expert testimony that he was drug and alcohol dependent at the time of the shooting. There is, however, no evidence
It is not all clear what a reasonable investigation would have unearthed to contribute to a reasonable probability on his intent claim given the petitioner’s declared animosity toward the victim, his borrowing of the shotgun, his loading of that shotgun and the other aspects of his planning on the evening of the shooting. The evidence on intent that a reasonable investigation should have uncovered could have included the petitioner’s checking the victim’s body at the scene for money or drugs, his fleeing the scene, his instructing Osborne to wipe the fingerprints off the shotgun and his telling Gordon that the other three would be against whoever reported the homicide. Such conduct mitigates strongly against the reasonable probability of a better outcome.
“In a criminal trial, it is relevant to show the conduct of an accused, as well as any statement made by him subsequent to the alleged criminal act, which may fairly be inferred to have been influenced by the criminal act. State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984).” (Internal quotation marks omitted.) State v. Joly, 219 Conn. 234, 250, 593 A.2d 96 (1991). In Joly, our Supreme Court, quoting Wigmore, stated: “No one doubts that the state of mind which we call guilty consciousness is perhaps the strongest evidence . . . that the person is indeed the guilty doer . . . .” (Internal quotation marks omitted.) Id., 250-51, quoting 3A J. Wigmore,
4
The petitioner claims also that the doctrine of “imperfect self-defense” raises a reasonable probability that, but for the ineffectiveness of his counsel, he would have achieved a better outcome. We do not agree. Contrary to his claim in this court, that doctrine is not a viable defense in this jurisdiction. In State v. Abdalaziz, 248 Conn. 430, 434, 729 A.2d 725 (1999), our Supreme Court stated: “We conclude that the doctrine of imperfect self-defense is not recognized in Connecticut, and, therefore, was not available to the defendant.” It goes without saying, therefore, that doctrine was not a defense that the petitioner could properly advance at the relevant times in this case.
5
The petitioner also argues that he has demonstrated that there was a reasonable probability that he would have achieved a better outcome based on the theory of third party culpability. In making this claim, the petitioner maintains that the essentials of the state’s claim, except the identity of the shooter, was answered by the physical evidence
Because of the nature of his briefing of this claim, we assume that the “two bystander witnesses” were Wright and Hampton, both of whose statements we have discussed earlier. That discussion need not be repeated, although we incorporate it here. We also note, however, certain aspects. Hampton, of course, never actually witnessed the shooting, nor did he even know who the males were that he observed leaning against the white car. Wright testified inconsistently at the probable cause hearing on material matters, whereas Osborne and Gordon, who also testified at that hearing, did so substantially in accord with their police statements, which in turn were consistent with each other on material matters. Wright’s statement to the police itself was inconsistent as to the identity of the shooter. This “bystander” evidence was at best, of minimal quality, even in combination with the “physical evidence.” The evidence of alleged third party culpability was not such as to raise a reasonable probability of a better outcome as the petitioner claims.
We now turn to the petitioner’s claim that he did prove that, but for his counsel’s ineffectiveness, he demonstrated a reasonable probability that he would have pleaded not guilty and gone to trial and achieved a better outcome. We do not agree that he would have gone to trial had he had the benefit of the credible evidence adduced in the habeas court. The habeas court found specifically that “the petitioner adduced no credible evidence [in the habeas court] that he would have elected to go to trial, even if fully informed, and risk incarceration for sixty years.” (Emphasis added.) We have been given no real reason to set aside this finding. We concur with the habeas court’s citation to Copas, a murder case, where the court, in accepting that petitioner’s guilty plea, “gave the petitioner no assurance or indication of what it would do at sentencing.” Copas v. Commissioner of Correction, supra, 234 Conn. 144.
Ill
Finally, the petitioner claims that the habeas court acted improperly and denied him his due process rights
Initially, we note that in the fourth count, paragraph eighteen alleges that “[t]he trial court did not inform the petitioner of his right to appeal the judgment in [the underlying criminal case],” and that paragraph nineteen of that count alleges that “[t]he court clerk did not inform the petitioner of his right to appeal the judgment in [the underlying criminal case].” The respondent filed identical responses to these two paragraphs of the petition, which were, “respondent denies the allegations in paragraph 18 [and paragraph 19] and also denies that there is any such right to appeal on the facts of this case.” (Emphasis added.) “In recent years the application [for a writ of habeas corpus] has come to be regarded as a pleading in the nature of a complaint . . . and the return in the nature of an answer. The pleadings in this case are so framed. Once the issues have been joined the evidence proffered must be relevant to these issues.” (Citation omitted.) Arey v. Warden, 187 Conn. 324, 332, 445 A.2d 916 (1982); Evans v. Santoro, 6 Conn. App. 707, 710 n.2, 507 A.2d 1007 (1986).
Neither State v. Madera, 198 Conn. 92, 97-97, 503 A.2d 136 (1985), nor State v. Kelley, 206 Conn. 323, 327, 537 A.2d 483 (1988), to which the habeas court referred involves the scenario of a guilty plea before trial where the trial court had found the guilty plea to be knowing and voluntary. Both Madera and Kelley, however, remain viable law in this jurisdiction. It is apparent that the habeas court, having concluded that the petitioner’s guilty plea was knowing and voluntary, recognized that
The judgment is affirmed.
In this opinion the other judges concurred.
The respondent, the commissioner of correction, claims that the petitioner’s objection to the plea canvass was clearly defaulted because he did not move to withdraw his guilty plea in the trial court and did not challenge the adequacy on appeal. The petitioner disagrees, arguing that such a claim of default was never made by the respondent in the habeas court. The respondent does not claim that it was raised in the habeas court. Further, in deciding whether the respondent did actually raise such a claim in the habeas court we are also disadvantaged by the fact that the respondent did not file a posttrial brief with that court. Under these circumstances, we cannot say that the respondent has shown that there is a procedural defect affecting our review of the trial court’s canvass of the petitioner’s guilty plea, and we will review that canvass.
In the habeas court, the petitioner claimed that he was denied a fair trial by the late disclosure of exculpatory evidence. That court rejected that, claim, stating that “the petitioner failed to establish his burden of proof that his decision to plead guilty resulted from the state’s failure to provide timely disclosure of exculpatory information.” The petitioner does not press this claim on appeal.
We note that the second count of the amended petition goes to the petitioner’s claim that the habeas court acted improperly in holding that the record established a knowing, intelligent and voluntary guilty plea. The respondent filed a return to all counts of the petition.
“Habeas corpus is a civil proceeding.” Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970). It is a legal and not an equitable remedy. Epps v. Slavin, 9 Conn. Sup. 460, 468 (1941); 39 C.J.S. 461, Habeas Corpus § 3 (1976). The application for a writ of habeas corpus is regarded as a pleading in the nature of a complaint; Arey v. Warden, 187 Conn. 324, 332, 445 A.2d 916 (1982); Evans v. Santoro, 6 Conn. App. 707, 710 n.2, 507 A.2d 1007 (1986); and the return in the nature of an answer. Evans v. Santoro, supra, 710 n.10. The pleadings in this case are so framed and when issue is joined the evidence must be relevant to those issues. Arey v. Warden, supra, 332. When our rules speak of the “legal grounds” upon which the petition is based, “ground must mean a sufficient legal basis for granting the relief sought.” (Internal quotation marks omitted.) Negron v. Warden, 180 Conn. 153, 158, 429 A.2d 841 (1980).
In examining the twenty-seven allegations of the second count, we note that that count is not grounded on the effective assistance of counsel but rather on the improper action of the trial court in its canvass of the petitioner at the time of his guilty plea. That is the manner in which the habeas court construed the second count in deciding the ground of an improper canvass. The respondent is correct when he states that the petitioner has neither alleged nor briefed this claim “under the rubric of ineffectiveness of counsel.” The allegations set the parameters for the evidence that may be adduced to obtain the relief justified thereunder.
The fact that one paragraph of the second count alleges that “defense counsel did not inform the petitioner of his right to appeal the validity of his guilty plea” does not change our view. This paragraph is incorporated, word for word, from the first count, which alleges in fifty-two paragraphs the ineffectiveness of counsel. Fairness, in reviewing the habeas court’s action on the second count, leads us to treat it for what it is: a challenge to the trial court’s canvass.
The taking of the defendant’s guilty plea by the trial court covers sixteen pages of transcript.
Grant was found guilty after a jury trial of the crime of accessory to murder in violation of General Statutes §§ 53a-54a and 53a-8 and was sentenced to twenty-five years in prison. On appeal, our Supreme Court affirmed the judgment of conviction. State v. Grant, 219 Conn. 596, 594 A.2d 459 (1991).
The petitioner cites no authority for the proposition.
Webster's defines the noun “gravamen" to mean “the material part or basis of (as of a grievance or charge).” Webster’s Third New International Dictionary.
In addition, at the time the petitioner pleaded guilty on July 14, 1989, he was nineteen years old, having been born on September 7, 1969. He had already graduated from high school. See Marshall v. Lonberger, 459 U.S. 422, 428-29, 437, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983). Shortly before his guilty plea on July 14, 1989, the petitioner had pleaded guilty to a larceny charge.
The respondent has not challenged the habeas court’s finding that “counsel’s representation was inadequate.” Therefore, only the second prong of the Hill-Strickland standard regarding the prejudicial assistance of counsel is at issue here. See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
An examination of that portion of Strickland concerning the “idiosyncracies” allusion by the Supreme Court in Hill gives some indication of how the court used that term. The StHckland court stated: ‘ ‘In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is
The habeas court did find that petitioner’s counsel interviewed the petitioner and the petitioner’s mother. Although the habeas court’s decision referred to what the petitioner’s counsel did and did not do, such discussion did not cover all the allegations of ineffectiveness. We note that the habeas court made no finding whether counsel explained the element of intent. In that regard, the transcript discloses that the petitioner’s counsel, at the entering of his guilty plea, testified in the habeas court that he “would have” gone over the elements of murder with the petitioner and that he did explain to the petitioner what the state would have to prove at a trial.
No one who allegedly was a witness to the shooting and from whom statements had been taken by police actually testified, although statements of some persons who actually witnessed the shooting were in evidence as exhibits.
The petitioner himself did not testify. He did, however, introduce as exhibits two documents. One was contained in the “officer’s version” portion of the presentence investigation, which was prepared after the acceptance of the petitioner’s guilty plea. There he claimed that Osborne owed him money which he, in turn, was going to use to pay his debt to the victim. The petitioner mentioned that Osborne had offered him his shotgun in payment of his debt to the petitioner. He maintained that at the prearranged meeting with the victim, the victim told him to get into his car and he then thought that the victim was going to kill him. Contending that he was “frightened, intoxicated on cocaine and under pressure,” the petitioner shot the victim.
The second document was an affidavit prepared by the petitioner after the initiation of his habeas corpus proceeding. In this document, the petitioner contended that he was a “middleman” between Osborne and the victim, that he told the victim that he had “five seconds to leave,” that the victim laughed and reached for the glove compartment, and, that after the first shot, the victim continued reaching and retrieved a gun and faced the petitioner at which time the petitioner shot the victim in the face.
According to the medical examiner who performed the autopsy, all three shots fired by the petitioner entered the victim. In addition, there was no gun found by the police in the victim’s car.
Among other things, the state's file was introduced into evidence. It contained documents prepared during the police investigation of the homicide, the prosecution of the petitioner’s case, the trial of Grant and various posttrial proceedings pertaining to Grant. Specifically, it also included the statements by Osborne, Gordon, Cornell Wright and Bernard Hampton, character evidence of the victim, transcripts of Grant’s probable cause hearing and trial, and certain physical evidence.
The information attributed to Wright came from two incident‘reports, one compiled by Officer Stephen O’Donnell and the other prepared by Detective Nicholas Russo, both of the Hartford police department. Wright, O’Donnell and Russo did not testify at the habeas court proceeding.
At the probable cause hearing in State v. Grant, 219 Conn. 596, 600, 594 A.2d 459 (1991), Wright testified that the driver of the Mazda had shot the victim. This was contrary to his earlier statement that he could not see which of the three men had fired a gun. Moreover, Wright admitted on cross-examination that it was dark at the time and that he had made his observations from a distance of 100 to 200 yards.
On the date of the victim’s murder, Bolden was a Hartford police detective. At the time of the habeas proceeding on this case he had retired from
Officer Regina Shephard of the Hartford police department was the one who first found the victim in the driver’s seat of the white car. She reported that she found the window on the driver’s side rolled almost all the way down.
General Statutes § 53a-19 provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
“(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
“(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”
It has been said that “[t]he ‘initial aggressor’ is the person who first acts in such a manner that creates a reasonable belief in another person’s mind that physical force is about to be used upon that other person. The first person to use physical force is not necessarily the initial aggressor.” R. Leuba & R. Fracasse, Connecticut Selected Jury Instructions Manual (1998) § 2.40 (a), p. 106.
While certainly not crucial here, we note that both Osborne and Gordon testified at trial substantially in accord with their statements to the police "about the events that occurred immediately prior and subsequent to the shooting.” State v. Grant, 219 Conn. 596, 597, 594 A.2d 459 (1991).
As noted previously, the detective who interviewed Wright on the night of the shooting noted that Wright had been drinking, but was not intoxicated.
Grant’s conviction as an accessory to murder hardly avails the petitioner. If anything, it eliminates Grant as the actual shooter. Moreover, on the evidence adduced in the habeas court, it is sheer speculation for the petitioner to suggest, without appropriate evidentiary basis, that either Osborne or Gordon was the actual shooter.
Reynolds also told the detective that one or two weeks earlier the victim had discharged a gun at a funeral in accordance with a Jamaican tradition. The victim was Jamaican.
The petitioner’s presentence investigation report did make a statement suggesting an impairment at the time of the shooting; however, this self-serving statement was uncorroborated.
In making this claim, the petitioner does not explain what evidence in Gordon’s statement was “corroborated” in this regard.
We have already considered the matter of the physical evidence claim earlier and will not discuss it again. In any event, in advancing that argument, the petitioner’s briefing does not refer to what physical evidence he means here.
In speaking of “uninvolved ■witnesses” here, the petitioner does not identify these “uninvolved witnesses.” This constitutes inadequate briefing. We will, however, assume that he means to refer to Wright and Hampton as we have earlier.
In Copas, the petitioner pleaded guilty, although the state had said that it intended to recommend the maximum sentence even if the petitioner were to plead guilty. State v. Copas, supra, 234 Conn. 166.
We note that the petitioner incorporates by reference into the fourth count, which concerns the right to appeal, seventeen paragraphs from the first count (alleging ineffectiveness) one of which alleges that “[d]efense counsel did not inform the petitioner of his right to appeal the validity of his guilty plea.” The habeas court made no specific finding on this allegation. In any event, there is neither evidence to the effect that the petitioner became dissatisfied with the conviction on his guilty plea within the time limited for taking an appeal, which was communicated to his counsel, nor is there any evidence of his attorney speaking to him, after his guilty plea, within the time period limited for taking an appeal.
There is no evidence as to whether he was “aware” of the time limitation within which to take an appeal as he alleges because he did not testify in the habeas court.
At this point, the habeas court’s decision noted: “It is well established that, an unconditional plea of guilty or nolo contendere, intelligently and voluntarily made, operates as a waiver of all nonjurisdietional defects and bars the later assertion of constitutional challenges to pretrial proceedings. . . . Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable. . . . State v. Madera, 198 Conn. 92, 97-98, 503 A.2d 136 (1985). State v. Kelley, 206 Conn. 323, 537 A.2d 483 (1988).” (Internal quotation marks omitted.)
We find it somewhat disingenuous for the petitioner to say as he does in his reply brief that “[he] has never claimed that the trial court or clerk is obliged to advise a [petitioner] of the right to appeal from a guilty plea.”