author: PER CURIAM.

text:
    JUVON KEY v. COMMISSIONER OF CORRECTION
    (AC 27883)
    Bishop, Harper and Beach, Js.
    Submitted on briefs January 4
    officially released March 4, 2008

      David J. Reich, special public defender, filed a brief for the appellant (petitioner).

      John A. Connelly, state’s attorney, Sarah Hanna, deputy assistant state’s attorney, and Eva B. Lenczewski, supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Juvon Key, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying certification to appeal and improperly rejected his claim that his trial counsel provided ineffective assistance. We dismiss the petitioner’s appeal.

The petitioner claimed, in the habeas trial, that his trial counsel rendered ineffective assistance because she failed to provide him with witness statements and police reports. The petitioner asserted that, had he been provided with these documents, he would not have pleaded guilty and would have been acquitted at trial. As to this claim, the court concluded that the petitioner failed to satisfy his burden under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in that he did not establish by a preponderance of the evidence that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Moreover, the court found that the petitioner failed to prove that, but for his attorney’s inadequacies, he would have pleaded not guilty, gone to trial and been acquitted. See Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The court found that the petitioner’s trial counsel shared the relevant documents with the petitioner and only declined to provide him with copies in order to protect the petitioner from their misuse. The court concluded that there was no unreliability in the petitioner’s conviction and that the petitioner’s guilty pleas were entered voluntarily. This appeal followed the court’s denial of the petition for certification to appeal.

The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that the decision of the habeas court should be reversed on the merits. Bowens v. Commissioner of Correction, 104 Conn. App. 738, 740, 936 A.2d 653 (2007). To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves “issues [that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

After a careful review of the record and briefs, we agree with the court that there was no evidence to support the petitioner’s claim of ineffective assistance of counsel. As there are no issues that are debatable among reasonable jurists, that a court could resolve differently or that deserve further proceedings, we conclude that the court did not abuse its discretion in denying the petitioner certification to appeal.

The appeal is dismissed.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL O. HAZEL
    (AC 27732)
    Flyirn, C. J., and DiPentima and Robinson, Js.

      Argued January 7
    officially released March 4, 2008

      Stephanie L. Evans, special public defender, for the appellant (defendant).

      Melissa Patterson, special deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Jason Germain, assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Michael O. Hazel, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48 (a), criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a) and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1). On appeal, the defendant claims that (1) he was denied his constitutional right to be present at a critical stage of his prosecution and (2) his conviction of attempt to commit murder is legally inconsistent with his conviction of assault in the first degree and conspiracy to commit assault in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 2 a.m. on July 6,2003, the victim, David Rogers, and his brother, Delton Rogers, went to Horace’s Market in Waterbuiy to purchase beer. The victim had a stick in his hand as he entered the store. Walter Williams asked if the victim planned to hit him with the stick, which the victim denied. Williams, agitated with the victim, exited the store in a hostile mood. After obtaining the beer, the victim left the store and saw his brother, Williams and a third person, later identified as the defendant, conversing. The victim explained that he had not threatened Williams with the stick. The victim and his brother shook hands with the defendant, while Williams remained unreceptive to the conciliatory efforts. The defendant and Williams then departed.

After a period of time had elapsed, the victim and his brother were walking to the victim’s automobile. A motor vehicle driven at a high rate of speed approached them. After it came to a stop, the victim observed Williams and the defendant exit from the vehicle. The victim warned his brother that “they might have guns” as Williams walked toward him. The defendant then pulled a pistol from his waistband and shot the victim several times in the stomach, legs, buttocks and arm. The victim heard Williams instruct the defendant also to shoot Delton Rogers, but the defendant focused his attack solely on the victim. The defendant and Williams then drove off. Delton Rogers transported the victim to a hospital.

The defendant subsequently was arrested, tried and convicted. The court sentenced him to a total effective term of twenty years incarceration and five years special parole. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that he was denied his constitutional right to be present at a critical stage of his prosecution. Specifically, he argues that it was structural error for the court to conduct a hearing in chambers regarding a possible conflict of interest involving defense counsel without his presence. The state counters that the record is inadequate to review this claim. We agree with the state.

The following additional facts are necessary for our discussion. Prior to the empanelment of the jury and the evidentiary phase of the trial, the court, referring to a discussion that had taken place earlier in chambers, stated: “Okay. Counsel, just the matter that we spoke about earlier. The procedure today, first of all, we will speak to the jurors who potentially may have problems participating .... I will inquire of the individuals. I will ask counsel if they have any additional questions. I will then make a determination as to whether or not one or both of them would be able to participate on the jury panel. If we have a situation after the inquiry when we have only one alternate, we do have a panel upstairs. From that panel, we will select an additional alternate. Each party will have one additional challenge to be used, if we need to select that additional alternate. Once that alternate is selected, we will then immediately proceed to the evidentiary portion of the matter here. I have indicated to counsel, based on the stipulation that was presented to the court, that when the panel is sworn after completion of the state’s evidence and as part of the jury charge, I will read an explanation of the stipulation, with respect to the admission by the defendant by the parties that he has been previously convicted of a felony, to indicate to the panel that that admission, that stipulation is admitted solely for the purpose to prove the element—the specific element of the two crimes that involve the prior felony record. . . . [Defense Counsel]. There is one other matter on the record related to one of the witnesses that you need to comment on; is that correct?”

Counsel for the defendant, attorney Michael P. Gannon, then stated: “Yes, Your Honor. For record, the victim in this case ... I don’t know the exact date, but it was a while ago, came into my law office and asked to receive a power of attorney. He asked for the form that we have [for a] power of attorney. I gave him or my office gave him—it might have been me—gave him a form of power of attorney. We do not represent him, we just gave him a power of attorney form to fill out on his own. I told that to my client, and my client has no problem with me representing him. I don’t think there is a conflict of interest in this case. Okay, Mr. Hazel, sir, do you understand the question here?” The defendant responded in the affirmative. The court then inquired if the defendant had “any problem with attorney Gannon continuing his representation?” The defendant answered in the negative. The court asked if the defendant believed that there was any type of conflict, and the defendant stated, “[n]o sir.”

The court inquired if the prosecutor had any comment regarding this matter. The prosecutor responded: “No, Your Honor. When I found this out from the victim, I brought it to the attention of Mr. Gannon; that’s when I brought it to the attention of Your Honor. [But in] the interest of caution, [the victim] did not say he actually obtained or hired Mr. Gannon, and it was the same situation. He went there for a power of attorney. The conversation, I believe afterward, when he picked up the form, was, is, you are representing the defendant in this case, the person who shot me; that was the end of the conversation. But in the interest of caution, we brought it before Your Honor.” The court then asked if there was anything else that needed to be placed on the record, and defense counsel responded in the negative.

The defendant concedes that this claim is unpreserved and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Under Golding, a defendant may prevail on unpreserved claims only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Citation omitted; internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 359-60, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). “In the absence of any one of the four Golding conditions, the defendant’s claim will fail. . . . The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Kirk R., 271 Conn. 499, 506 n.12, 857 A.2d 908 (2004).

We now set forth the legal principles germane to the defendant’s claim. “The sixth amendment to the United States constitution, as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution both guarantee a defendant the right to effective assistance of counsel in a criminal proceeding. . . . Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. . . . This right applies not only to the trial itself, but to any critical stage of a criminal proceeding.” (Citations omitted; internal quotation marks omitted.) State v. Cruz, 41 Conn. App. 809, 811, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996); see also State v. Rodriguez, 93 Conn. App. 739, 745, 890 A.2d 591, appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007). Simply put, “[a] defendant’s right to be present ... is scarcely less important to the accused than the right of trial itself.” (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 636, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007).

The defendant argues that the conversation that occurred in chambers constituted a critical stage of the proceedings. In State v. Sam, 98 Conn. App. 13, 23, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006), we noted that “an in camera inquiry regarding a potential conflict of interest may constitute a critical stage of a prosecution at which time a defendant has a constitutional right to be present.” (Emphasis added.) Nevertheless, it does not follow that all in-chambers discussions constitute a critical stage of the prosecution. In State v. Lopez, 271 Conn. 724, 859 A.2d 898 (2004), our Supreme Court stated that “[i]n judging whether a particular segment of a criminal proceeding constitutes a critical stage of a defendant’s prosecution, courts have evaluated the extent to which a fair and just hearing would be thwarted by [the defendant’s] absence or whether his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” (Internal quotation marks omitted.) Id., 732; see also State v. Holbrook, 97 Conn. App. 490, 494-95, 906 A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006); State v. McNellis, 15 Conn. App. 416, 431-32, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). It further noted that a defendant may be afforded the right either to object or to waive an objection to his absence from a conference held in chambers if the existence of such a conference subsequently is placed on the record. State v. Lopez, supra, 737 n.13. In other words, in order to determine whether the in-chambers discussion constituted a critical stage of the proceedings, it is imperative that the record reveal the scope of discussion that transpired.

In the present case, the record is unclear as to the extent of the discussions that occurred in chambers, outside of the presence of the defendant. Neither the parties nor the court described or recounted on the record, with any detail, what had occurred in chambers. We therefore cannot determine the scope of this discussion. Instead, we are left to speculate as to whether the conversation consisted of the court and counsel conducting an extensive discussion as to Gannon’s potential conflict of interest at one end of the spectrum or, at the opposite end, a brief comment to the court that there was a matter that needed to be placed on the record, or a dialogue that fell somewhere in between. As a result, we cannot determine the extent to which a fair and just hearing would have been thwarted by the defendant’s absence or whether his presence has a reasonably substantial relation to the fullness of his opportunity to defend against the criminal charges.

The defendant failed to move for an articulation or rectification of the record. See State v. Saucier, 283 Conn. 207, 222 n.11, 926 A.2d 633 (2007). “When our rules of practice are not followed, and the record is not rectified, we are left to guess or speculate as to the existence of a factual predicate.” (Internal quotation marks omitted.) State v. Bermudez, 95 Conn. App. 577, 585, 897 A.2d 661 (2006). Our Supreme Court recently reiterated the fundamental point that “[i]t is incumbent upon the [defendant] to take the necessary steps to sustain [his] burden of providing an adequate record for appellate review. . . . Our role is not to guess at possibilities . . . but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by [any appellate court] respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) State v. Canales, 281 Conn. 572, 583-84, 916 A.2d 767 (2007); see also State v. Dalzell, 282 Conn. 709, 720, 924 A.2d 809 (2007) (for any Golding claim, incumbent on defendant to take necessary steps to sustain burden of providing adequate record for appellate review); State v. Brunetti, 279 Conn. 39, 63, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). We conclude, therefore, that the record is inadequate for our review of this claim, and, accordingly, the defendant has failed to satisfy the first prong of Golding.

II

The defendant next claims that his conviction of attempt to commit murder is legally inconsistent with his conviction of assault in the first degree and conspiracy to commit assault in the first degree. Specifically, he argues that it was not possible to simultaneously possess the requisite mental state for attempt to commit murder, that is, the intent to cause the death of another person, and assault in the first degree and conspiracy to commit assault in the first degree, that is, to intend to cause serious physical injury to another person. We are not persuaded.

At the outset, we note that the defendant’s claim is unpreserved, and, therefore, he seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. We review this claim because the record is adequate and the claim is of constitutional magnitude. See State v. Mooney, 61 Conn. App. 713, 719, 767 A.2d 770, cert. denied, 256 Conn. 905, 772 A.2d 598 ,(2001); State v. Jones, 44 Conn. App. 476, 488, 691 A.2d 14, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997). We conclude, however, that this claim fails to satisfy the third Golding prong.

We now set forth the legal principles and standard of review applicable to this issue. “The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements. Such verdicts are legally inconsistent if the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted.” (Internal quotation marks omitted.) State v. Mourning, 104 Conn. App. 262, 269, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594 (2007); State v. Soto, 59 Conn. App. 500, 504, 757 A.2d 1156, cert. denied, 254 Conn. 950, 762 A.2d 906 (2000). Furthermore, “[t]he resolution of a claim of inconsistent verdicts presents a question of law. . . . Our review is therefore plenary.” (Internal quotation marks omitted.) State v. Mourning, supra, 269.

The defendant relies primarily on State v. King, 216 Conn. 585, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991). In that case, our Supreme Court concluded that a conviction of attempt to commit murder and assault in the first degree in violation of § 53a-59 (a) (3) was legally and logically inconsistent, thereby depriving the defendant of due process. Id., 592. Specifically, the court explained: “The intent to cause death required for a conviction of attempted murder, by definition, therefore, necessitated a finding that the defendant acted with the conscious objective to cause death. The reckless conduct necessary to be found for a conviction of assault under the subsection charged, however, required a finding that the defendant acted without such a conscious objective. ... To return verdicts of guilty for both attempted murder and assault in the first degree, therefore, the jury would have had to find that the defendant simultaneously acted intentionally and recklessly with regard to the same act and the same result, i.e., the injury to the victim. ... As is evident, however, the statutory definitions of intentionally and recklessly are mutually exclusive and inconsistent. Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result. . . . Therefore, the transgression that caused the victim’s injuries was either intentional or reckless; it could not, at one and the same time, be both. . . . Where a determination is made that one mental state exists, to be legally consistent the other must be found not to exist. ... By no rational theory could the jury have found the defendant guilty of both crimes. . . . Logically then, the jury verdicts convicting the defendant of two offenses each of which requires a mutually exclusive and inconsistent state of mind as an essential element for conviction cannot stand.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 593-94.

The defendant in King was charged with violating the recklessness subsection of the assault in the first degree statute. Id., 586; see General Statutes § 53a-59 (a) (3). In the present case, however, the state charged the defendant with violating § 53a-59 (a) (1), which provides in relevant part: “A person is guilty of assault in the first degree when . . . With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . ,” (Emphasis added.) We agree with the state’s claim that King is distinguishable from the facts of the present case and therefore does not control the resolution of this issue.

We find guidance from our Supreme Court’s decision in State v. Williams, 237 Conn. 748, 679 A.2d 920 (1996), after remand, 44 Conn. App. 231, 689 A.2d 484, cert. denied, 240 Conn. 918, 692 A.2d 815 (1997). In that case, the defendant was charged with attempt to commit murder and assault in the first degree in violation of § 53a-59 (a) (1). Id., 749. The defendant had struck the victim eight times in the head with a baseball bat, causing serious head injuries. Id., 751. The jury found the defendant guilty of attempt to commit murder and assault in the first degree. Id., 752. The defendant appealed, claiming that the trial court’s instructions improperly permitted the jury to render an inconsistent guilty verdict. Id.

The court stated the issue as “whether the intent to cause death and the intent to cause serious physical injury are mutually exclusive as a matter of law.” Id., 753. In concluding that such mutual exclusivity is not to be presumed, our Supreme Court explained: “Although §§ 53a-54a and 53a-59 (a) (1) require the same mental state, namely, a specific intent . . . the particular intents required to violate these statutes are not the same. For each intent, a distinct conscious objective is sought. A verdict of guilty of attempted murder requires a finding of the specific intent to cause death. ... A verdict of guilty of assault in the first degree in violation of § 53a-59 (a) (1), in contrast, requires a finding of the specific intent to cause serious physical injury. . . .

“The defendant’s argument founders on the mistaken presumption that one who intends to kill a person may not also intend to cause serious physical injury to that person. We can perceive no logical reason to preclude, as a matter of law, the simultaneous possession of these intents by a defendant toward the same victim. It is entirely consistent and reasonable, under the facts ofaparticular case, for a jury to find that a defendant intended to inflict serious wounds upon a victim while also intending to cause that victim’s death. A defendant can intend both to cause the victim a serious physical injury and to kill the victim. No temporal separation is required for the intent, but obviously one is required for the result. A possible factual scenario would have a defendant intending to kill a person but first causing serious physical injury or disfigurement, so as to make the victim suffer before dying. The intent is simultaneous, as the conscious objective to cause the requisite results is simultaneous, while the results themselves are separated by time.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 754-55. Finally, we note that the Williams court expressly distinguished King.

We conclude that the present case is controlled by Williams and those cases applying Williams. See State v. Mourning, supra, 104 Conn. App. 269-71; State v. Blocker, 46 Conn. App. 734, 736-38, 700 A.2d 1186, cert. denied, 243 Conn. 946, 704 A.2d 799 (1997); State v. Dukes, 46 Conn. App. 684, 686-89, 700 A.2d 119 (1997); State v. Jones, supra, 44 Conn. App. 488; State v. Campfield, 44 Conn. App. 6, 18-19, 687 A.2d 903 (1996), cert. denied, 240 Conn. 916, 692 A.2d 814, cert. denied, 522 U.S. 823, 118 S. Ct. 81, 139 L. Ed. 2d 39 (1997); see also State v. Hinton, 227 Conn. 301, 318, 630 A.2d 593 (1993) (“[i]t is clear that an assault in violation of § 53a-59 [a] [1] and [2] would be consistent with an attempted murder count in violation of §§ 53a-49 and 53a-54a”). As we stated in Mourning, “gradations of specific intent for purposes of a claim of legal inconsistency represent a distinction without a difference.” State v. Mourning, supra, 271. In the present case, it was not inconsistent for the defendant to have conspired to cause a serious physical injury, to have intended to cause a serious physical injury and to have intended to cause death. As our Supreme Court has noted, “under some circumstances, the intent to cause death and the intent to cause serious physical injury may be possessed simultaneously.” State v. Murray, 254 Conn. 472, 481, 757 A.2d 578 (2000). In other words, the existence of the specific intent to cause death does not negate the existence of the specific intent to cause serious physical injury.

We conclude that the intent required for a conviction of assault in the first degree, in violation to § 53a-59 (a) (1), conspiracy to commit assault in the first degree in violation of § 53a-59 (a) (1) and attempt to commit murder are not contradictory; therefore, the defendant’s claim of legal inconsistency must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was known as “Michael Jackson.”

       Walter Williams also was known as “Slugger.”

       As a result of these events, the victim’s gallbladder had to be removed. Additionally, the victim suffered from a hole in his liver and a shattered bone in his arm. Several bullets could not be removed and remain in the victim’s body. Randolph E. Edwards, a physician who treated the victim, described these injuries as life threatening.

       “In considering the nature of a claimed constitutional violation, although typically such violations are reviewed for harmless error, there is a limited class of violations that we review for structural error. Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected. . . . These cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. . . . Such errors infect the entire trial process . . . and necessarily render a trial fundamentally unfair .... Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.” (Internal quotation marks omitted.) State v. Dalton, 100 Conn. App. 227, 230 n.3, 917 A.2d 613, cert. denied, 282 Conn. 913, 924 A.2d 139 (2007). Because the defendant failed to satisfy the first prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), review for structural error is not necessary. See State v. Dalton, supra, 230 n.3.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       The defendant also was charged with conspiracy to commit assault in the first degree. “To obtain a conviction for conspiracy to commit assault in the first degree in violation of §§ 53a-48 (a) and 53a-59 (a) (1), as charged, the state bore the burden of proving beyond a reasonable doubt that the defendant (1) intended that conduct constituting the crime of assault in the first degree be performed, (2) agreed with one or more persons to engage in or cause the performance of such conduct and (3) that any one of those persons committed an overt act in pursuance of such conspiracy.” State v. Wells, 100 Conn. App. 337, 347, 917 A.2d 1008, cert. denied, 282 Conn. 919, 925 A.2d 1102 (2007). For the purposes of our analysis in this case, we consider the mental state required for the inchoate offense of conspiracy to commit assault in the first degree and the underlying substantive offense of assault in the first degree to be the same in determining whether the conviction of those crimes was legally inconsistent with attempt to commit murder.

       “The holding in King was premised on the conclusion that, because a defendant cannot act recklessly and intentionally at the same time toward the same victim, a guilty verdict based on a finding that a defendant acted with recklessness is inconsistent with a guilty verdict based on a finding that the defendant acted intentionally. . . . That is not this case. The trial court in the present case did not instruct the jury that it could find that the defendant simultaneously had acted recklessly and intentionally toward the victim. Rather, the trial court instructed the jury that it could find that the defendant had intended to inflict serious physical injury upon the victim and, at the same time, intended to cause her death. King, therefore, is inapposite.” (Citation omitted.) State v. Williams, supra, 237 Conn. 756-57.


author: PETERS, J.

text:
    STATE OF CONNECTICUT v. CLIFFORD HOLLY
    (AC 27145)
    Flynn, C. X, and Harper and Peters, Js.

      Argued October 23, 2007
    officially released March 4, 2008

      Conrad Ost Seifert, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, Joseph J. Harry, senior assistant state’s attorney, and Sean T. King, certified legal intern, for the appellee (state).
   Opinion

PETERS, J.

In this criminal appeal from a conviction of the ciimes of attempt to commit murder and assault, the principal issue is the admissibility of testimony by the victim that he believed that the defendant had killed his nephew. Despite the lack of a showing that the defendant had in fact done so, the trial court admitted this testimony into evidence as prior misconduct evidence that was probative of motive. We agree with the defendant that this evidence was inadmissible, but we agree with the state that the court’s improper evidentiary ruling was a harmless error that did not substantially affect the verdict. The defendant also challenges the constitutionality of a police search of an apartment near the scene of the crime, but we agree with the state that the defendant waived his right to raise this challenge. Accordingly, we affirm the judgment of the trial court.

In a substituted information filed on November 15, 2004, the state charged the defendant, Clifford Holly, with the crimes of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (l) and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (l). After a jury trial, he was convicted of the first two counts. The trial court sentenced the defendant to consecutive terms of fifteen years on the first count and ten years on the second count for a total effective sentence of twenty-five years of imprisonment followed by five years of special parole. The defendant has appealed.

The jury reasonably could have found the following facts. In the early morning hours of December 30, 2003, the victim, Walter Jefferson, twice was attacked on Union Avenue in Bridgeport by two different assailants. The victim was able to fend off his first assailant after a struggle. Shortly thereafter, the defendant approached the victim. The defendant pulled out a gun when he was about five feet from the victim and shot the victim as the victim tried to flee the scene. The victim told a police officer who arrived at the scene shortly thereafter that a man whom he knew as C.J. was the person who had shot him.

Acting on information provided by the victim, Bridgeport police officers found the defendant in a nearby apartment at 669 Union Avenue that belonged to the defendant’s cousin. In their search of the apartment, the police discovered a removable ceiling tile behind which they found a partially exposed plastic bag containing spent .38 caliber shell casings, the same caliber as the bullet that was later recovered from the victim. The victim later identified the defendant from a photographic array.

In preliminary hearings before the presentation of evidence to the jury, the court addressed two issues raised by the defendant. One was a motion asking the court to suppress all tangible evidence seized by the police from the apartment at 669 Union Avenue. The other was a request to preclude the state from introducing, as evidence of uncharged misconduct, testimony by the victim that he believed that the defendant had killed the victim’s nephew. The defendant subsequently abandoned the motion to suppress, and the court resolved the second issue against the defendant.

In his appeal to this court, the defendant seeks to resurrect his abandoned motion to suppress and maintains that the trial court improperly decided the uncharged misconduct issue. We address each of these claims separately.

I

MOTION TO SUPPRESS

The defendant properly filed three separate motions to suppress evidence seized by the police in their warrantless search of the Union Avenue apartment in which the defendant was found soon after the shooting of the victim. At a hearing to consider the merits of these motions, however, trial counsel for the defendant informed the court: “I did some diligence and research, Your Honor. That’s not something I can really pursue. I did file the motion, and it was filed well in advance of this day, but it’s not something that I’m going to pursue, nor would I have any reasonable success on it.” As a result, the court heard no evidence and made no findings with respect to the search conducted by the police.

On appeal, despite his categorical withdrawal of his suppression motion at trial, the defendant asks us to review, pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), the merits of his claim that the search of his cousin’s Union Avenue apartment violated his constitutional rights under the fourth amendment to the United States constitution. In his view, he has standing to raise this claim because he was in the apartment as his cousin’s overnight guest. Furthermore, according to the defendant, we have an adequate record on which to conduct this review because, during the evidentiary portion of the trial, several police officers testified about their entry into, and search of, the apartment. Although the state challenges the validity of each of these assertions, its more fundamental argument is that the defendant’s waiver of this claim at trial bars him from raising it on appeal. We agree with the state.

“Under [State v. Golding, supra, 213 Conn. 239-40], a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Fabricatore, 281 Conn. 469, 476-77, 915 A.2d 872 (2007).

In Fabricatore, our Supreme Court, citing a number of cases previously decided by this court, categorically held that “unpreserved, waived claims, fail under the third prong of Golding . . . .” Id., 482; see also State v. Cooper, 38 Conn. App. 661, 669, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996). These precedents govern this case.

The defendant argues that there is a constitutionally significant distinction between waiver of a claim concerning the propriety of a jury instruction, which was the issue in Fabricatore, and waiver of a claim concerning the propriety of a nonconsensuai search and seizure, which is the issue in this case. We disagree. Our Supreme Court has held that a defendant in a criminal prosecution may waive his right to assert any number of fundamental constitutional rights. See, e.g., State v. Patterson, 230 Conn. 385, 393, 645 A.2d 535 (1994) (judicial supervision of entire voir dire); State v. Simino, 200 Conn. 113, 125-30, 509 A.2d 1039 (1986) (right to be present during trial). In light of these precedents, the defendant’s unconditional express waiver of his right to a suppression hearing in this case is governed by Fabricatore and, thus, his claim fails.

II

UNCHARGED MISCONDUCT

The defendant also filed a timely motion for disclosure of evidence of uncharged misconduct that the state intended to introduce at trial. In response, the state made an offer of proof regarding testimony by the victim that he had been told by one of his nephews that the defendant had killed another nephew. Over the defendant’s objection, the court permitted the jury to hear this testimony because, in the court’s view, it was probative of the defendant’s motive, and its probative value outweighed its prejudicial effect. In this appeal, the defendant challenges the validity of the court’s ruling.

The defendant’s claim of error requires us to address two issues. We first must decide whether the trial court properly construed and applied § 4-5 (b) of the Connecticut Code of Evidence, which provides that “[ejvidence of other crimes, wrongs or acts of a person is admissible ... to prove . . . motive . . . .” If we conclude that the court’s ruling was improper, we must then decide whether it substantially affected the verdict. We agree with the defendant that § 4-5 (b) did not authorize the court’s ruling, but we agree with the state that the ruling was harmless error.

A

Our Supreme Court recently has clarified the standard of review that governs appellate appraisal of claims of evidentiary error by the trial court. In State v. Saucier, 283 Conn. 207, 926 A.2d 633 (2007) (enbanc), the court enunciated a two part test. “To the extent a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. . . . We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.” Id., 218.

Applying the Saucier standard of review to the claim of evidentiary error in this case, we must first decide whether the trial court’s ruling was based on a correct interpretation of § 4-5 (b). The question is whether the phrase “evidence of other crimes, wrongs or acts of a person” requires proof that the “other crimes, wrongs or acts” actually occurred.

Our Supreme Court’s holding in State v. Aaron L., 272 Conn. 798, 865 A.2d 1135 (2005), is the proper starting point for our analysis. In Aaron L., one issue was whether the trial court, before admitting prior misconduct evidence in a case alleging sexual misconduct as evidence of a common scheme or plan, was required to find by a heightened standard of proof that the prior misconduct in fact occurred. Id., 821. The defendant conceded that the prior conduct had occurred but denied that the conduct was unlawful. Id., 822. Under those circumstances, the court held that “whatever inferences should be drawn from the defendant’s prior conduct are for the jury to determine.” (Emphasis in original.) Id., 824.

The crucial distinction between Aaron L. and this case is that the state did not introduce evidence of record to substantiate the role, if any, that the defendant played in the death of the victim’s nephew. All we have before us are statements to that effect by the victim and other members of his family. Even more important, the defendant never conceded that he had assaulted the nephew. Unlike the facts of Aaron L., the trial court in this case did not, and could not, find that there was sufficient evidence for the jury to find that the defendant had committed the prior act.

We are persuaded that § 4-5 (b) does not permit the introduction of opinion evidence about prior misconduct without any evidence that the prior conduct in fact occurred. Certainly, when evidence of prior misconduct is offered to show a common plan or design, the dispositive inquiry is whether the prior conduct in fact shares certain distinctive features with the charged conduct. It is that factual resemblance that makes it reasonable to infer that the defendant committed the charged act in a similar manner. See State v. Morowitz, 200 Conn. 440, 448, 512 A.2d 175 (1986). Underscoring the importance of focusing on the conduct itself, Morowitz held that “it is not necessary for the prior offense to have resulted either in an arrest or a conviction.” Id., 449. Nothing in the text of § 4-5 suggests that the draftsmen intended to adopt a different standard when evidence of prior misconduct is offered to prove motive rather than identity. As Professor Colin Tait opines, “[p]rior misconduct is proved by evidence of the act done . . . .” C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.19.2, p. 233.

In sum, because the victim’s testimony about what had happened to his nephew was based not on actual knowledge but on information received from a family member, it was insufficient evidence for a jury reasonably to find that the defendant in fact had committed the uncharged act. Evidence of prior misconduct requires a more definitive showing of the misconduct than this record contains.

B

Having concluded that the trial court improperly permitted the victim to testify that he had been told that the defendant had killed the victim’s nephew, we must now decide whether admission of this evidence requires us to order a new trial of the charges of which the defendant was convicted. Because the improper admission of this evidence was not a constitutional error, “the defendant bears the burden of demonstrating that the eiror was harmful.” (Internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 352, 904 A.2d 101 (2006). “[A]n appellate court may conclude that a nonconstitutional error is harmless only when it has a fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 411-12, 902 A.2d 1044 (2006).

The defendant argues that the evidence beyond the testimony of the uncharged misconduct “was not overwhelming” and that this court therefore could not arrive at a fair assurance that the victim’s testimony did not substantially affect the verdict. We disagree. First, the trial court issued a cautionary instruction with regard to the testimony of the uncharged misconduct, limiting its use to the issue of motive and expressly prohibiting the jury from using it as evidence of the defendant’s character or as evidence of a tendency to commit criminal acts. Second, the remaining evidence was sufficient for the jury to have found the defendant guilty. The victim testified that he knew the defendant from prior confrontations, that he recognized the defendant on the night of the shooting and that the defendant shot him from close range. The victim also identified the defendant as the shooter from a photographic array shortly after the incident. In addition, when the police located the defendant at an apartment near the shooting, they recovered a plastic bag containing spent .38 caliber shell casings, the same caliber as the bullet that was removed from the victim. On the basis of this evidence, we have a fair assurance that the testimony of the

uncharged misconduct did not substantially affect the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides in relevant part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omite to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . .

       General Statutes § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony . . .

       The court granted the defendant’s motion for a judgment of acquittal on the third count because the state failed to prove the barrel length of the gun that the defendant used in the shooting of the victim.

       The defendant was represented by three different attorneys, each of whom filed such a motion.

       Our appellate courts have established several principles with regard to the admission of prior misconduct evidence. “It is well settled that evidence of prior misconduct is admissible for the purpose of showing knowledge, intent, motive, and common scheme or design, but is not admissible to prove that a defendant is guilty of the crimes with which he is charged. . . . Uncharged misconduct evidence relates to a collateral, uncharged crime and does not prove the commission of the principal crime with which the defendant is charged.” (Citation omitted.) State v. Gibson, 75 Conn. App. 103, 109-10, 815 A.2d 172 (2003), rev’d in part, 270 Conn. 55, 850 A.2d 1040 (2004). “The trial judge, however, must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982).

       As our Supreme Court noted, “ [w] e are more liberal in admitting evidence of other criminal acts to show common scheme or pattern in sex related crimes than other crimes.” (Internal quotation marks omitted.) State v. Aaron L., supra, 272 Conn. 821.