48 Conn. App. 122 | Conn. App. Ct. | 1998
Opinion
The petitioner appeals from the trial court’s denial of her petition for a writ of habeas corpus. She claims that the trial court abused its discretion in denying certification to appeal on three of the four issues raised in her petition and improperly denied her ineffective assistance of counsel and equal protection claims. We conclude that the dispositive issue is whether the trial court improperly rejected the petitioner’s claim of ineffective assistance of trial counsel.
The following facts relevant to this appeal are recited in our Supreme Court’s decision in State v. Foreshaw, 214 Conn. 540, 572 A.2d 1006 (1990). “On the evening of March 26, 1986, Joyce Amos attended a dance at the Jamaican Progressive League, a club located on Albany Avenue in Hartford. At approximately midnight, Amos arranged to get a ride home from an acquaintance, Hector Freeman, and Freeman’s friend, Elmer Pickett. As they left the club, Freeman, who needed some cigarettes, asked Pickett to meet him across the street at a twenty-four hour gas station and convenience store.
“Freeman then walked toward the store and encountered the [petitioner] as he was crossing the street. When Freeman greeted her with the words ‘Hello, Dred,’*
“Upon walking out of the store, Amos approached the [petitioner] and began talking to her. Freeman soon joined Amos and listened as Amos admonished the [petitioner] for using such vile language. Undaunted, the [petitioner] continued her tirade and eventually disappeared behind a nearby building. She emerged again
“The [petitioner] fled from the scene in her automobile, but was arrested within a short time after the shooting. . . .
“At trial, the [petitioner] took the witness stand in her defense and gave testimony concerning the events that had transpired before, during and after the shooting incident. She explained that on the night of March 26, 1986, she had stopped at the Jamaican Progressive League for a drink. While she was at the club, she had been insulted and embarrassed by Freeman after he unsuccessfully had offered to buy her a drink. She immediately decided to leave the club, but was followed to her car by Freeman and Amos. The [petitioner] testified that, although Freeman did not block her from getting into her car, his presence had threatened her. The [petitioner] claimed further that she had grabbed her gun and deliberately pulled its trigger in response to Freeman’s movements toward her. Upon seeing Amos fall, the [petitioner] immediately drove away and discarded the gun en route so that she would not be caught with it.
“Although the [petitioner] admitted at trial that she had fired the fatal shot, she claimed that she had done so while under the influence of extreme emotional disturbance. In support of this affirmative defense, the [petitioner] presented expert testimony from Anne E. Price, a psychiatrist. Price testified that the [petitioner] had experienced an abusive childhood and had endured two abusive marriages. Price explained that these experiences had affected the [petitioner’s] state of mind at the time of the shooting. She further explained that the
The following additional facts relevant to the ineffective assistance of counsel claim were found by the habeas court. The petitioner was represented at trial by attorney Dennis O’Toole from the office of the public defender. O’Toole graduated from law school in 1983 and was admitted to practice law in Connecticut that year. He joined the public defender’s office in 1985. Prior to trial, O’Toole met with the petitioner on several occasions, reviewed all available police reports concerning this incident and filed numerous pretrial motions concerning the admissibility of certain evidence and the establishment of fair procedures for the conduct of the trial. In addition, O’Toole interviewed several witnesses, reviewed witnesses’ voluntary statements, studied the report and evaluation of the petitioner performed by Donald R. Grayson, a psychiatrist, and met with Grayson to discuss the report and the specifics of the petitioner’s mental condition.
O’Toole also sought a second psychiatric opinion regarding the petitioner’s mental state from Price. Price concluded that the petitioner’s conduct was influenced by posttraumatic stress disorder. O’Toole acquainted
After a jury trial, the petitioner was found guilty of the crimes of murder, carrying a pistol without a permit and tampering with evidence. The trial court sentenced her to a total effective sentence of forty-five years imprisonment. On direct appeal, our Supreme Court affirmed the conviction. Id., 540.
The petitioner filed a petition for a writ of habeas corpus in April, 1994. After a trial to the habeas court in April, 1996, the petition was denied. Following the decision by the habeas court, the petitioner filed a petition for certification to appeal that raised four issues: (1) whether her trial counsel failed to meet the “recognized standard of competency” in his performance in violation of the sixth and fourteenth amendments to the United States constitution; (2) whether trial counsel improperly failed to present a defense of self-defense; (3) whetiher such defense probably would have been successful; and (4) whether the habeas court applied an “incorrect standard” in assessing her sixth amendment claims.
Pursuant to General Statutes § 52-470 (b),
The dispositive issue in this appeal is whether the petitioner was denied the effective assistance of trial counsel because her attorney failed to present the defense of self-defense at trial. The petitioner argues that her attorney failed to view the events that transpired on the night in question from her perspective. She claims specifically that because she suffered from battered woman’s syndrome, her belief that she was facing imminent danger from Freeman was reasonable and would support a self-defense argument. We are not persuaded.
To review properly an ineffective assistance of counsel claim, we must apply the two part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on this claim, the petitioner must demonstrate both (1) deficient performance by her attorney and (2) actual prejudice. Id. Applying this test to the facts of this case, we conclude that the petitioner has failed to prove deficient performance by her trial attorney. As a result, we need not consider the prejudice prong.
While it may be true that the petitioner believed that she was in imminent danger from Freeman,, she had a duty to retreat pursuant to General Statutes § 53a-19 (b)* **
While the petitioner correctly asserts that the proper test to determine the reasonableness of a defendant’s belief in the necessity of using deadly physical force is an objective-subjective test; see State v. Carter, 232 Conn. 537, 546, 656 A.2d 657 (1995); she fails to recognize the importance of the duty to retreat requirement. Even assuming, arguendo, that the petitioner’s belief that Freeman was about to threaten her with the use of deadly force was reasonable given her mental state as a battered woman suffering from posttraumatic stress disorder, she had a duty to retreat from the conflict to avoid the use of deadly physical force. In this case, she had the opportunity to retreat but after retreating briefly, she obtained her gun and returned to the scene of the conflict to fire the fatal shot. In so doing, she failed to satisfy the duty to retreat requirement. Her trial counsel correctly determined that the facts did not support this defense and correctly decided not to pursue this strategy at trial.
The petitioner points to several psychiatric and legal experts who testified at the habeas hearing, and could have testified at her trial regarding the reasonableness of the petitioner’s belief under the circumstances, given her posttraumatic stress disorder condition. According
We conclude that the habeas court’s determination that the petitioner failed to prove that her counsel’s performance was deficient in this case for failure to present the defense of self-defense was warranted.
The judgment is affirmed.
In this opinion the other judges concurred.
As to the claim of improper denial of certification, we note that the trial court did not specifically deny any of the petitioner’s claims, but merely focused on the fourth issue as one that met the statutory criteria for certification. While the trial court need not have distinguished the issues as being questions of fact or questions of law, the trial court carried out its statutory duties in determining whether an issue constituted a “question . . . which ought to be reviewed by the court having jurisdiction . . . .” General Statutes § 52-470 (b).
Although the petitioner claims that the trial court applied an “incorrect standard” in ascertaining whether trial counsel was ineffective, the petitioner’s argument does not contain any claim that incorrect law was applied. Rather, her argument relates to the dispositive issue that the trial court incorrectly analyzed the ineffective assistance of counsel claim in terms of fact and law. We therefore address those claims in the course of discussing the dispositive issue.
“Testimony indicated that the defendant was a Rastafarian and wore her hair in long [dreadlocks].” State v. Foreshaw, supra, 214 Conn. 542 n.4.
General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions
General Statutes § 53a-19 (b) provides in relevant part that “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