34 Conn. App. 153 | Conn. App. Ct. | 1994
In this appeal from a judgment of dismissal of a petition for habeas corpus, the petitioner claims that the habeas court improperly determined that neither his trial counsel nor his appellate counsel gave him ineffective assistance during his trial or on direct appeal from his conviction for murder, first
The habeas court found that under the standards established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the petitioner failed to show that either trial or appellate counsel’s performance was ineffective or outside the range of competence displayed by lawyers with ordinary training and skill in the criminal law and that their performance contributed to the convictions orto the affirmance, on appeal, of the judgments of convictions.
Some facts relating to the petitioner’s trial are necessary background to the disposition of this appeal from the habeas court’s judgment of dismissal. The petitioner left a bar with the victim and the petitioner’s cousin after an evening of drinking. The cousin drove them to the victim’s apartment building where the cousin left them at about 2 a.m. The victim’s landlord testified that he heard the victim and another person walking upstairs toward the victim’s apartment at approximately 2 a.m., and that about one-half hour later he heard what sounded like a body falling out of a bed. A babysitter in the victim’s apartment building testified that sometime between 12:30 and 2 a.m., he heard the victim crying and the voice of a “smooth educated man.” The babysitter later identified the petitioner’s voice as one of two possible voices he had heard that night. The victim was stabbed with a barbecue fork and strangled with an antenna wire, and her room was set on fire. The petitioner had blood stains on his shirt inconsistent with his own blood type and consistent with the victim’s blood type. At about 5:15 a.m., some of the contents of the victim’s purse were found strewn along a street located between the victim’s apartment and the petitioner’s house. The barbecue fork and other items from the purse were found in a storm drain located along a path between the victim’s apartment and the petitioner’s house.
I
Competency of Trial Counsel
No expert testimony was proffered in the habeas proceeding as to the trial counsel’s lack of effective assistance. The habeas court concluded that without such testimony, the petitioner could not prevail on the claims relating to that counsel’s alleged incompetency.
Whether expert testimony is required in a particular case is determined on a case-by-case basis and its necessity is dependent on whether the issues are of sufficient complexity to warrant the use of the testimony as assistance to the habeas court. Evans v. Warden, 29 Conn. App. 274, 281-82, 613 A.2d 327 (1992). It is the habeas court, therefore, that must initially decide whether, in order to make intelligent findings, it needs expert testimony on the question that it must decide. State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988). A trial court has broad discretion in determining whether expert testimony is needed. See id., 45. In this case, because of the complexity of the issues, the habeas court determined that expert testimony was necessary for a determination of whether the trial counsel’s performance was incompetent, and that, without such expert testimony, no finding as to competency could be made. The habeas court also stated that even if it assumed that the claimed delicts of the trial counsel amounted to incompetency, the alleged incompetency did not contribute to the defendant’s convictions. We conclude that the habeas court did not
The petitioner argues that trial couiisel should have moved to strike the testimony of four witnesses and that, if he had, the trial court would have had to grant the motion to strike the testimony in order to avoid reversible error. The petitioner claims that counsel was ineffective in failing to move to strike the testimony and that the failure to so move caused the inclusion of the testimony and establishes a probability sufficient to undermine confidence in the guilty verdict.
Some discussion of the direct appeal and the trial are needed to resolve these claims. On the direct appeal from his convictions, the petitioner claimed that the testimony of five witnesses whose tape-recorded statements had been erased should have been stricken. There was an objection at trial to the introduction of one of the witnesses’ testimony, but none as to the four other witnesses. It is the testimony of these four witnesses that is the subject of the petitioner’s habeas claim. The direct appeal determined that because the four tapes were not destroyed in bad faith, there could be no automatic reversal of the petitioner’s convictions because of the destruction.
The petitioner also claims as ineffective assistance of trial counsel the failure to object to the comment made during closing argument
The petitioner did not take the stand and the comment, therefore, could not have been used directly to impeach his credibility by attacking an explanation or defense offered at trial. Doyle v. Ohio, supra, 426 U.S. 610, established the principle that after Miranda warnings are given the state may not use the silence of a
The petitioner is not claiming that the testimony of the police officer recounting the petitioner’s expressed desire to talk to the police was a comment on silence. The alleged comment on silence, according to the petitioner, was the asking of the jury what he would have said at trial or at the police station had he broken his silence. See State v. Canty, 223 Conn. 703, 613 A.2d 1287 (1992); State v. Esposito, 223 Conn. 299, 613 A.2d 242 (1992); State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Pellegrino, 194 Conn. 279, 480 A.2d 537 (1984); State v. Apostle, supra, 8 Conn. App. 216.
The strategy of the petitioner was to induce the jury to believe because of his cooperation with the police that someone other than he had committed the crimes. The comment does not attack that strategy but does imply that if the petitioner had kept his appointment with the police officer, he might have corrected his original statement that he had not entered the victim’s apartment on the night of her murder and confessed that he had entered the apartment. Expert opinion would have helped the trial court to determine whether the failure to object to the comment was ineffective assistance of counsel or trial strategy to show the jury the cooperative attitude of the petitioner.
The petitioner also claims that trial counsel was ineffective because he failed to object to the comment even though it was impermissible under Griffin v.
The test to determine whether the comment violated the fourteenth amendment is whether a jury would naturally and necessarily understand the remarks to be a comment on the failure of the accused to testify. State v. Correia, 33 Conn. App. 457, 636 A.2d 860 (1994). Here, the remarks called on the petitioner for an explanation that only he could provide and implied that he would have expanded his previous statement. It was not, however, a direct comment on his failure to testify but a comment on his failing to speak to the police. Even if the comment was constitutionally impermissible, as a Griffin violation, the final question to be answered is whether the failure of trial counsel to object contributed to the petitioner’s conviction. Presumably, the charge required by § 54-84 (b) was given. If so, the jury would have had to deal with two conflicting themes, namely, the instruction to draw no unfavorable inferences from the failure of the defendant to testify, and the comment by the state that might be
II
Competency of Appellate Counsel
The petitioner also argues that appellate counsel improperly failed to claim on appeal that the comment in the state’s closing argument about the testimony of the police officer violated the principles of Doyle v. Ohio, supra, 426 U.S. 610, and Griffin v. California, supra, 380 U.S. 609, thereby interfering with the petitioner’s right to a fair trial. The petitioner produced an expert witness whose opinion was that the failure to raise these issues on appeal was ineffective assistance of counsel.
The test is not whether the issue, had it been raised on direct appeal, might have entitled the defendant to relief but whether the failure to raise the issue resulted in a miscarriage of justice. Bunkley v. Commissioner of Correction, 222 Conn. 444, 461, 610 A.2d 598 (1992). The petitioner’s expert witness as to the ineffectiveness of appellate counsel testified that a reasonably competent appellate counsel would have raised the unpreserved claims that the remarks of the prosecutor improperly commented on both the petitioner’s right to remain silent after receiving Miranda warnings and his decision not to testify at trial.
In order to prevail on a constitutional claim of ineffective assistance of counsel by way of habeas, the petitioner must establish both a deficient performance and actual prejudice. Commissioner of Correction v. Rodriquez, supra, 222 Conn. 477. “[T]o establish prejudice resulting from his appellate counsel’s deficient performance, he must establish that, as a result of that performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal.” Bunkley v. Commissioner of Correction, supra, 222 Conn. 454. The petitioner must establish that he would have been entitled to a reversal on appeal and that the deficiency raises a probability sufficient to undermine confidence in the verdict. A petitioner must
“The principle that collateral review is different from direct review resounds throughout our habeas jurisprudence.” Id. Different problems prevail when a conviction is set aside on direct appeal than when a conviction is set aside following a habeas writ. “These considerations counsel strongly in favor of requiring a habeas corpus petitioner who seeks to establish prejudice from his appellate counsel’s performance to show that, as a result of the performance, it is reasonably probable
The validity of the jury verdict here was not undermined due to the failure of appellate counsel to raise a Griffin or Doyle issue. Even if the petitioner could establish that he would have been entitled to a reversal of his conviction had the issue been raised on appeal, he has not shown that the error was egregious enough to warrant the extraordinary remedy of habeas corpus. Thus, he cannot prevail on his claim of ineffective assistance of appellate counsel.
The judgment of the habeas court is affirmed.
In this opinion the other judges concurred.
The facts underlying the convictions are set forth in State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990).
The petitioner also argues that his trial counsel “acted incompetently in failing to object to testimony of a police officer concerning the petitioner’s exercise of his post -Miranda right of silence.” We do not address this issue because it was not addressed by the habeas court and the petitioner’s expert witness testified that the failure to object to the testimony was not ineffective assistance of trial counsel. See Safford v. Warden, 223 Conn. 180, 188, 612 A.2d 1161 (1992).
The test enunciated in Strickland v. Washington, supra, 466 U.S. 668, applies to ineffective assistance of both trial and appellate counsel. Bunkley v. Commissioner of Correction, 222 Conn. 444, 458, 610 A.2d 598 (1992).
The principles of Doyle v. Ohio, supra, 426 U.S. 610, apply to silence after Miranda warnings, regardless of whether the warnings were given before or after arrest. State v. Esposito, 223 Conn. 299, 318-19, 613 A.2d 242 (1992); State v. Plourde, 208 Conn. 455, 466, 545 A.2d 1071 (1988). “The fact that the defendant has or has not been arrested at the time of a statement given after Miranda warnings is . . . irrelevant.” State v. Apostle, 8 Conn. App. 216, 223 n.5, 512 A.2d 947 (1986).
Although the petitioner offered the testimony of an expert witness as to appellate counsel’s performance only, the expert witness testified that neither appellate nor trial counsel was ineffective because of their failure to object to or to raise an issue as to the testimony. See footnote 2.
Appellate counsel argued on the direct appeal that it was not necessary at trial to move to strike the testimony of each of the five witnesses because at the hearing on a motion in limine by the state to determine the effect of the destruction, the petitioner had unsuccessfully argued that all the tapes must be produced or the testimony stricken. Counsel claimed that Practice Book § 4185 did not require further objection. That section provides in pertinent part: “In jury trials, where there is a motion ... in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully com
The petitioner also claims the failure to raise this claim on his direct appeal was ineffective assistance of appellate counsel.
The petitioner had previously told the police that he accompanied the victim to her apartment but that, after walking her to the door, he went directly home, never entering her apartment.
This claim of misconduct by the state’s attorney could have been raised on direct appeal by use of the principles of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because it was a constitutional claim and the record was sufficient for review. Because it was reviewable, it is not certain that the petitioner could be prejudiced by this deficiency in trial counsel’s performance. See Bunkley v. Commissioner of Correction, 222 Conn. 444, 446 n.3, 610 A.2d 598 (1992).
The standard in federal habeas courts on review of a claim that a conviction is constitutionally flawed because of a constitutional trial error is no longer that of harmless beyond a reasonable doubt; see Chapman v. California, supra, 386 U.S. 18; and now is based on Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), with the burden of proof on the petitioner to show that the error had a substantial and injurious effect or influence in determining the jury verdict. Brecht v. Abrahamson, U.S. , 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). Although Brecht concerned a Doyle silence, Brecht applies to all constitutional errors, of the trial type, when reviewed by way of a habeas corpus writ. Brecht does not apply to claims of ineffective assistance of counsel raised by way of habeas.