author: LAVINE, J.

text:
    MICHAEL J. JARRETT v. COMMISSIONER OF CORRECTION
    (AC 28340)
    Gruendel, Lavine and Pellegrino, Js.

      Argued March 10
    officially released May 27, 2008

      Michael Oh, special public defender, for the appellant (petitioner).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVINE, J.

This appeal concerns the third petition for a writ of habeas corpus filed by the petitioner, Michael J. Jarrett, and its protracted procedural history. The petitioner appeals from the judgment of the habeas court denying in part and granting in part his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly found that he did not receive ineffective assistance from counsel with respect to (1) his criminal trial and (2) the trial of his first petition for a writ of habeas corpus (first petition). We affirm the judgment of the habeas court.

The event that eventually led to the petitioner’s appeal occurred on September 6, 1983, when the petitioner, who was then in his thirties, stabbed to death his son’s teenage baby-sitter with whom he was romantically involved, pursuant to a suicide pact. Although the petitioner inflicted injuries on himself, his suicide attempt obviously failed. See State v. Jarrett, 218 Conn. 766, 767, 591 A.2d 1225 (1991). The petitioner was charged with murder in violation of General Statutes § 53a-54a (a). State v. Jarrett, supra, 767. The petitioner “interposed a multifaceted defense of mental disease or defect and elected to be tried to a three judge panel of the Superior Corut. The court found him guilty as charged and sentenced him [on January 31, 1986] to a term of imprisonment of fifty years.” Id. In July, 1990, the petitioner filed a direct appeal. His conviction was affirmed by our Supreme Court. Id. The petitioner was represented by Carl D. Eisenmann, an assistant public defender, at trial and on direct appeal.

The petitioner retained private counsel, Ernest Diette, to file an amended petition for a writ of habeas corpus in June, 1996. In the first petition, the petitioner alleged in count one that Eisenmann’s representation was ineffective because the petitioner was unable to communicate effectively with him and that Eisenmann refused to let him testify. In count two, the petitioner alleged that there was undue delay in filing his appeal due to systemic problems in the office of the public defender. The first habeas court, W. Sullivan, J., denied the first petition, finding that the petitioner had not proven that Eisenmann’s representation was ineffective or that the petitioner was prejudiced by the representation. See Jarrett v. Barbieri, Superior Court, judicial district of New Haven, Docket No. CV-95-0371173-S (June 25, 1996). That judgment recently was affirmed in Jarrett v. Commissioner of Correction, 106 Conn. App. 317, 942 A.2d 426 (2008). See footnote 1.

The petitioner filed a third petition for a writ of habeas corpus in December, 2004. In the second amendment to the third petition, filed by counsel, the petitioner alleged that Diette rendered ineffective assistance because he failed to (1) allege that Eisenmann did not question the petitioner’s competency at the time he rejected the state’s plea offer and (2) file a direct appeal from the denial of the first petition.

The court, T. Santos, J., tried the third petition in May, 2006. She consolidated the claims alleged against Eisenmann, finding that they concerned his failure to have the petitioner’s competency evaluated when he refused the state’s plea offer. The claims against Diette in count one were derivative in that they related to Diette’s failure to allege in the first petition that Eisenmann’s representation was deficient for failing to have the petitioner’s competency reevaluated.

The court found, on the basis of Eisenmann’s testimony, that he was appointed as a public defender to represent the petitioner. In accordance with General Statutes § 54-56d, Eisenmann had the petitioner’s competency evaluated by Walter A. Borden, a psychiatrist. In his report dated November 19, 1983, Borden found that the petitioner was competent to stand trial. Borden’s report stated, however, that “ft]he only area where there is a question related to his competency is in the area of a self-defeating attitude, which appeared to be a major theme in his life and which might contribute to his sabotaging whatever legal defense he and his counsel pursue. However, at present this does not appear to be the case but [s]hould be considered if at any point during the legal proceedings he appears to be acting inappropriately.” Borden later performed a full psychiatric evaluation of the petitioner.

In addition, Eisenmann had the petitioner’s competency evaluated by John A. Cegalis, a clinical psychologist, in June, 1984, and by Peter M. Zeman, a psychiatrist, and David F. Berry, a psychologist, whose evaluations were completed in February and June, 1985, respectively. All four of the petitioner’s mental health experts found him to be psychotic, having schizophrenic disorder, paranoid type. All four of them opined that the petitioner could neither appreciate the wrongfulness of his conduct nor conform his conduct to the requirements of the law on September 6,1983. Donald R. Gray-son, a psychiatrist, evaluated the petitioner on behalf of the state. He also found the petitioner to be psychotic but concluded that he was capable of conforming his conduct to the requirements of the law.

The court found that prior to the criminal trial, Eisenmann negotiated a plea offer under which the petitioner could enter a plea of nolo contendere or plead guilty to manslaughter under the Alford doctrine on the basis of extreme emotional disturbance or on the basis of intending to injure but not to kill. Pursuant to the plea offer, the petitioner’s sentence was to be limited to twenty years, and the prosecutor was to recommend fifteen years incarceration. The petitioner would have the right to argue for less and to go before the sentence review board. Eisenmann presented the offer to the petitioner, and the two of them discussed the offer a number of times. The petitioner understood that he was exposed to a sentence of sixty years or a commitment to Whiting Forensic Division of Connecticut Valley Hospital if he went to trial. Eisenmann advised the petitioner to accept the offer. The petitioner did not accept the offer because he wanted to go to trial and to explain why he killed the victim and why he was going to kill himself, too.* The petitioner told Eisenmann that he did not want to take legal responsibility for the victim’s death because it was his intention to complete the suicide pact, despite the importance of the plea offer. The court also found that after he was sentenced, the petitioner began to read about and to speak with others about reincarnation, leading him to decide that suicide was not the answer.

Walter C. Bansley testified as a criminal defense expert on behalf of the petitioner at trial on the third petition. He also reviewed the transcripts of the criminal trial and the trial of the first petition, Borden’s report and the reports of the other mental health professionals. According to Bansley, the standard of care in a case in which an attorney thought that the client could not participate in formulating a defense strategy required the attorney to refer the criminal defendant for a competency evaluation. In Bansley’s opinion, when the petitioner refused to accept the plea offer, Eisenmann should have referred the petitioner for another competency evaluation.

The court also heard testimony from Kenneth M. Selig, a psychiatrist and member of the Connecticut bar, who was retained by the petitioner to determine whether there were any psychiatric issues relevant to this matter. In forming his opinion, Selig reviewed the petitioner’s mental health evaluations from before and after the petitioner’s arrest, and from before and after the criminal trial. He read the transcripts of the criminal trial and the trial of the first petition. Selig interviewed the petitioner in 2002 and one week prior to the habeas trial before Judge Santos. Selig opined that the petitioner was psychotic between 1983 and 1985, at a minimum. He further opined that there was a nexus between the psychosis and the issue of competency at the time the petitioner was presented with the plea offer and that the petitioner was not competent to appreciate the offer. According to Selig, the petitioner was not able to pull himself out of the dominant psychotic thinking in order to evaluate rationally the cost and benefits of the plea offer and going to trial. The court did not assign much weight to Selig’s testimony, however, finding that Selig evaluated the petitioner almost twenty years after the state extended the plea offer and that the petitioner fully appreciated the offer.

The court concluded that Eisenmann thoroughly investigated the criminal case and was prepared to defend the charges against the petitioner on the basis of the petitioner’s mental disease or defect. The case need not have been tried, however, as the state made the petitioner a plea offer. Eisenmann conveyed the offer to the petitioner on numerous occasions, emphatically advising him to accept the offer. Eisenmann, however, did not have the power to enter a plea that was inconsistent with the petitioner’s wishes. “[T]he constitutional rights of a defendant cannot be waived by his counsel under such circumstances [where the defendant does not want to plead guilty]. . . . [This] would shut off the defendant’s constitutional right to confront and cross-examine the witnesses against him which he would have an opportunity to do under a plea of not guilty.” Brookhart v. Janis, 384 U.S. 1, 7-8, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966).

The petitioner’s testimony at the trial on the third petition was consistent with his testimony at trial on the first petition. The petitioner did not want to enter a guilty plea because he wanted to tell his side of the story and to convince the fact finder that he was not guilty of murder. To convince the court that he was not guilty, the petitioner alleged an affirmative defense that he was not guilty by reason of mental disease or defect. Four expert witnesses, psychologists and psychiatrists, evaluated the petitioner and testified on his behalf at the criminal trial. The state’s expert, Grayson, agreed in large part with the petitioner’s experts, but he did not agree that the petitioner was not capable of conforming his conduct to the requirements of law.

On the basis of the evidence presented at the habeas trial in this case, the court found that there was no evidence that Eisenmann’s assessment and conclusions, which resulted in no further competency evaluations of the petitioner, was deficient performance. To the contrary, the petitioner’s preparation for trial, including meetings with mental health experts for purposes of evaluation, underscored that the petitioner was able to work with counsel and was capable of assisting in his defense. Eisenmann never detected a change in the petitioner’s demeanor, attitude or line of reasoning from the time he first met him. The court found that there was no evidence that the petitioner did not understand the proceedings or was unable to assist in his defense. The petitioner was clear that he did not want to accept the plea offer because he wanted to go before the panel of three judges and explain the situation.

On the basis of its findings, the court concluded that the petitioner could not prevail on the claims of ineffective assistance of trial and habeas counsel on the issue of a competency evaluation at the time the petitioner rejected the plea offer. This conclusion is supported by the court’s finding that Eisenmann reasonably relied on Borden’s opinion that the petitioner was competent to stand trial, and monitored the petitioner’s behavior and observed no changes indicative of a self-defeatist attitude. Eisenmann reasonably believed that the petitioner’s rejection of the plea offer did not evidence incompetence because the petitioner believed that he was not guilty and wanted to tell his side of the story. The court also found that the petitioner rejected the plea offer because he wanted to tell his side of the story, not because he did not care about his defense. The petitioner consistently stated that reason from the time he met with Eisenmann until he testified at the trial of his first petition and then in this case. The petitioner therefore failed to demonstrate that Eisenmann’s performance was deficient.

As to the claim that Diette provided ineffective habeas assistance for failing to allege that Eisenmann’s representation was ineffective for failing to obtain a second competency evaluation, it was derivative of the claim against Eisenmann and, thus, failed, too. See Denby v. Commissioner of Correction, 66 Conn. App. 809, 812-13, 786 A.2d 442 (2001) (“To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial.” [Citations omitted; internal quotation marks omitted.]), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002); but see footnote 1.

“The standard of appellate review of habeas corpus proceedings is well settled. The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . 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 [an appellate] court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008). The petitioner does not claim that the court’s findings are clearly erroneous.

To determine whether the petitioner has demonstrated that counsel’s performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Claims of ineffective assistance during a criminal proceeding “must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 285 Conn. 575-76.

The substance of the petitioner’s claim on appeal is that Eisenmann failed to recognize the self-defeating attitude that Borden had forewarned. The petitioner does not argue that his failure to accept the plea offer is evidence of incompetence itself but that it is evidence that he did not care about his defense. The shortcoming with that argument is that the court found that the petitioner rejected the plea offer, not because the petitioner did not care about his defense, but because he did not think that he was guilty of murder and wanted to explain his side of the story to the trial court, which suggests that he cared a good deal about his defense. The court found that Eisenmann was aware of Borden’s admonition and monitored the petitioner’s behavior throughout his representation. At no time did the petitioner’s behavior exhibit self-defeat.

The petitioner also argues that at the time he rejected the plea offer, he did not have the capacity to make reasoned choices due to his apathy and delusional condition. The theme of apathy repeats itself in the petitioner’s argument and is heavily reliant on his trial testimony. He testified that the plea offer did not mean anything to him. “I wanted to go to trial. I wanted to be able to have a chance to explain what had happened, why we did what we did. And if I had taken the offer, that wouldn’t have happened. And I planned on killing myself at the end, anyway, to join her, so it didn’t matter if they gave me five minutes or 500 years.” This testimony was sufficient for the habeas court to have found that the petitioner rejected the plea offer because he wanted to explain himself to the trial court. Moreover, the petitioner’s statement concerning his desire to join the victim does not reflect apathy but a mission and desire to fulfill his pact with the victim.

In the final analysis, the petitioner presented the court with no persuasive evidence that he was not competent when he rejected the plea offer. Selig had no opinion as to Borden’s November 19, 1983 finding that the petitioner was competent to stand trial. Our statutes define incompetency as the inability to understand the proceedings or to assist in one’s defense. See State v. Bagley, 101 Conn. App. 653, 654-55, 922 A.2d 1128 (2007). The court found that the petitioner understood the charges against him, the role of the court, the prosecutor and his counsel, and the risks of being found guilty or being confined to the Whiting Forensic Division of Connecticut Valley Hospital. The court found explicitly that the petitioner cooperated with counsel and helped to prepare for trial by undergoing numerous psychiatric and psychological evaluations in support of the affirmative defense of mental disease or defect.

Moreover, the petitioner presented no evidence to overcome the presumption of his competency at the time he rejected the plea offer. See General Statutes § 54-56d (b). The respondent, the commissioner of correction, has pointed out that to overcome the presumption of competency, the petitioner was required to demonstrate that there was a reasonable doubt about his competency at trial. See State v. Ross, 269 Conn. 213, 272, 849 A.2d 648 (2004). A reasonable doubt is established by means of substantial evidence, not mere allegations of incompetence. Id. Although Selig testified that the petitioner was incompetent, as noted, the court did not give much weight to his testimony, given that he interviewed the petitioner twenty years after the fact. The finder of fact is the arbiter of credibility. Morales v. Commissioner of Correction, 99 Conn. App. 506, 510, 914 A.2d 602, cert. denied, 282 Conn. 906, 920 A.2d 308 (2007). The finder of fact may believe, some, none or all of the testimony of an expert witness. State v. Cuesta, 68 Conn. App. 470, 484, 791 A.2d 686, cert. denied, 260 Conn. 914, 796 A.2d 559 (2002). Even.though a criminal defendant is mentally ill, his illness is not per se evidence of incompetence. State v. Ross, supra, 273. Even attempted suicide does not establish reasonable doubt as to competence. Myers v. Manson, 192 Conn. 383, 388, 472 A.2d 759 (1984).

Our Supreme Court’s decision in Ross is helpful to resolving the issue before us now. That case demonstrates that a competent, but mentally ill, criminal defendant may choose not to follow the advice of counsel and to choose a course others think clearly is not in his best interest. “The defendant’s suicide attempt, his attempt to stipulate to the imposition of the death penalty and his counsel’s statements at the hearing on the motion for a competency examination do not compel a different conclusion [that the defendant was unable to assist counsel].” State v. Ross, supra, 269 Conn. 273. “Similarly, the defendant’s past attempts to stipulate to the imposition of the death penalty did not raise a reasonable doubt as to his competency, especially in light of the fact that he was found competent ... at the time he was pursuing the stipulation.” Id. Our Supreme Court concluded with respect to the defendant in Ross that he “not only understood the nature of the proceedings but also was able to communicate with and assist his counsel.” Id. The lesson is that courts may not construe a defendant’s decision to proceed to trial as evidence of incompetence merely because others conclude the decision is not in the defendant’s best interest. In this case, the court found that the petitioner was able to communicate with Eisenmann and to assist with the defense. On the basis of our review, we conclude that there is substantial evidence in the record to support those findings and legal conclusions.

For these reasons, the court properly concluded that Eisenmann’s representation was not deficient for failing to secure a second competency evaluation of the petitioner. The claim against Diette that is grounded in the question of the petitioner’s competence is derivative of the claims against Eisenmann and also fails. See Lozada v. Warden, 223 Conn. 834, 842, 613 A.2d 818 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       The court, T. Santos, J., denied the petition as to the allegations of ineffective trial counsel. Judge Santos concluded that the representation of habeas counsel was deficient for failing to file an appeal from the judgment rendered on the first petition for a writ of habeas corpus filed in 1996 and restored the petitioner’s appellate rights. The appeal pursuant thereto recently was decided. See Jarrett v. Commissioner of Correction, 106 Conn. App. 317, 942 A.2d 426 (2008) (affirming judgment of first habeas court, W. Sullivan, J.).

       The court granted the petition for certification to appeal.

       Our Supreme Court found that the panel of three Superior Court judges reasonably could have found that “[b]ecause of a substantial age disparity between the [petitioner] and [the] victim, the victim’s mother filed a complaint that led to the [petitioner’s] conviction of risk of iiyury to a child, for which he received a suspended sentence conditioned on his not seeing the victim. Distressed by the efforts to enforce their separation, which the [petitioner] and the victim knowingly tried to circumvent, they entered into a suicide pact. Each of them alluded to their plan of action in conversations with a mutual friend, shortly before the fatal day; the [petitioner] told the friend that he intended to do something that he characterized as dangerous.” State v. Jarrett, 218 Conn. 766, 767-68, 591 A.2d 1225 (1991).

       In his direct appeal, the petitioner claimed that “the state adduced insufficient evidence of his commission of the underlying crime or to rebut his defense of mental disease or defect”; State v. Jarrett, supra, 218 Conn. 770; and if he were not entitled to an acquittal, he claimed, in the alternative, that he was entitled to a new trial because “the trial court deprived him of his rights under Practice Book § 760 [now § 40-19] and his constitutional rights to due process by relying in part on a statement ‘on the issue of guilt’ that he had made during his court-ordered examination by the state’s psychiatrist, [Donald R] Grayson.” State v. Jarrett, supra, 773-74.

       In his memorandum of decision, Judge Sullivan found the following facts that are relevant to the issues in this appeal. In the criminal case, the “petitioner was offered a plea agreement whereby he would plead guilty to manslaughter, and he would receive a sentence of twenty years incarceration, execution suspended after fifteen years, with the right to argue for less. The petitioner testified that he was not going to plead guilty to something he was not guilty of. The petitioner testified that he believed that if you do something by mutual agreement, such as this suicide pact, then it is not murder. The petitioner testified that he believed that if he and his girlfriend could not live together here, then they would meet in another life. He stated that his girlfriend agreed with this belief 100 percent. The petitioner testified that his attorney brought to him the same aforementioned plea agreement offer at various times. . . . Eisenmann testified that he urged the petitioner to accept the plea agreement offer many times. . . . Eisenmann said the plea bargain was a good offer.” Jarrett v. Barbieri, Superior Court, judicial district of New Haven, Docket No. CV-95-0371173-S (June 25, 1996).

       The petitioner filed a second petition for a writ of habeas corpus in 2001. See Jarrett v. Commissioner of Correction, Superior Court, judicial district of New Haven, Docket No. CV-01-0459316 (January 16, 2004). The habeas court, Corradino, J., granted the motion to dismiss filed by the respondent, the commissioner of correction, on the basis of the petition’s being a successive petition on the issue of ineffective assistance of trial counsel. The petitioner’s counsel agreed to the dismissal because the dismissal would not preclude the petitioner from filing another petition alleging that Diette rendered ineffective assistance on the first petition.

       General Statutes § 54-56d provides in relevant part: “(a) Competency required. Definition. A defendant shall not be tried, convicted or sentenced while the defendant is not competent. For the puqjoses of this section, a defendant is not competent if the defendant is unable to understand the proceedings against him or her or to assist in his or her own defense.
      “(b) Presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by a preponderance of the evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.
      “(c) Request for examination. If, at any time during a criminal proceeding, it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency. . . .”

       Borden made the following findings with respect to the petitioner. “[The petitioner], on examination, is a man of above average intelligence. He was able to give an account of understanding of the charges against him as well as a basic understanding of court procedures and roles of participants. He has an appreciation of possible penalties. He can provide counsel with a factual account of the issues involved in the case and he is able to work with counsel in his own defense.”

       The four mental health experts who testified at the petitioner’s criminal trial “described the [petitioner] as suffering from delusional beliefs about ‘astroplaning,’ reincarnation, and the existence of life on another planet. In their view, the [petitioner’s] psychopathology genuinely led him to believe that, in stabbing the victim, he was not harming her or causing her pain but was instead enabling her to be reunited with him in another place and in another form.” State v. Jarrett, supra, 218 Conn. 772.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Borden testified at the criminal trial that the petitioner was a suicide risk.

       In its memorandum of decision, the court stated that implicit in the petitioner’s claim that Eisenmann’s assistance was ineffective is the notion that the reasonableness of the petitioner’s rejecting the state’s plea offer can be measured by the difference between the possible maximum sentence for the murder charge then pending and the sentence offered by the state for a plea of guilty of manslaughter.

       The petitioner, in fact, did not testify at the criminal trial on the basis of Eisenmann’s advice that he should not testify. Eisenmann testified at the trial in this case that he advised the petitioner that he would come across to the trial court as being too intelligent and derail the foundation of mental disease or defect laid by the four mental health professionals. The court concluded that Eisenmann’s advice was not deficient performance of trial counsel. The petitioner has not challenged that conclusion on appeal.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATEWIDE GRIEVANCE COMMITTEE v. REBECCA L. JOHNSON
    (AC 28279)
    Gruendel, Lavine and Hennessy, Js.
    Argued February 8
    officially released May 27, 2008

      Rebecca L. Johnson, pro se, the appellant (defendant).

      Maureen A. Horgan, assistant bar counsel, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant, Rebecca L. Johnson, an attorney licensed to practice law in the state of Connecticut, appeals from the judgment rendered on a presentment in which the trial court adjudged her guilty of professional misconduct in violation of rules 1.4 (a), 1.5 (b) and (c) and 1.15 (b) and suspended her from the practice of law for eighteen months. On appeal, the defendant claims that the court (1) did not conduct the presentment proceeding de novo, and (2) violated her due process rights when she was unable to confront and to cross-examine the complainant during the presentment. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. The defendant was duly admitted as a member of the Connecticut bar on or about December 10, 1993. In December, 2001, the complainant, Anthony Amabile, retained the defendant to represent him regarding a claim of employment discrimination against his former employer. The complainant gave the defendant a $750 retainer, and a retainer agreement was signed. The defendant prepared a complaint dated February 19, 2002, and filed it with the commission on human rights and opportunities (commission).Thereafter, the commission forwarded the complaint to the Equal Employment Opportunity Commission (federal agency) for processing. On April 24, 2002, the federal agency contacted the complainant by letter, requesting additional information to process the complaint. The federal agency informed the complainant that the information could be given either through an in-person interview at the federal agency or through a questionnaire, but the information had to be received within thirty days or the complaint would be dismissed. The defendant requested the questionnaire, but the federal agency did not send a complete document. On or about May 30, 2002, the defendant requested the missing pages from the federal agency. On June 24, 2002, the full questionnaire was sent to the defendant via facsimile. In July, 2002, the defendant learned that as a result of a prior presentment, she was being disciplined by the courts and was suspended from the practice of law for one year beginning on September 1, 2002. On February 24, 2003, the federal agency sent notice to the defendant that it had dismissed the complainant’s claim because the requested information had never been provided. The dismissal notice advised the complainant that he had ninety days from that date to file a lawsuit in either state or federal court. No action was filed on the complainant’s behalf. He therefore requested a return of the $750 retainer, but no refund was made.

The plaintiff, the statewide grievance committee, presented its case to the court at a hearing on August 4, 2006. The plaintiff called the defendant to testify and also introduced a number of exhibits. The plaintiff filed transcripts of the proceedings before the plaintiffs reviewing committee in the case and a record of past grievances that had been filed against the defendant. The plaintiff rested its case on this evidence. The defendant was allowed a continuance to subpoena witnesses for her defense. When court reconvened in this matter on August 24, 2006, the defendant filed a motion to dismiss on the basis of the alleged denial of her due process rights to a fair trial. This motion was based on her claim that she had been denied the right to cross-examine the complaining witness during the Superior Court presentment proceeding. When asked by the court whether she had the chance to question the complainant at the prior hearing before the reviewing committee, the defendant stated that she had. The court questioned the plaintiff as to the complainant’s availability, and the court was informed that the complainant was residing out of state and was unable to make the trip to court. The court denied the motion to dismiss and admitted into evidence the transcript of the complainant’s prior testimony and his cross-examination by the defendant.

On November 1, 2006, in a memorandum of decision, the court held that the plaintiff had demonstrated by clear and convincing evidence that the defendant was guilty of professional misconduct. The court suspended the defendant from the practice of law for eighteen months to run concurrently with the prior imposed suspension that she was under at that time. It was further ordered that to be readmitted to practice, the defendant must apply for such readmission and show recent participation in a professional ethics course focusing on Connecticut’s Rules of Professional Conduct and a course in law office management, both to last a minimum of three hours, and to take and pass the Multistate Professional Responsibility Examination within three years of the application for readmission.

Before addressing the defendant’s specific claims, our analysis begins with a review of the legal principles that govern attorney disciplinary proceedings. “An attorney is admitted to the practice of law on the implied condition that the continuation of this right depends on remaining a fit and safe person to exercise it.” Statewide Grievance Committee v. Fountain, 56 Conn. App. 375, 377, 743 A.2d 647 (2000). The Rules of Professional Conduct bind attorneys to uphold the law and to act in accordance with high standards in both their personal and professional lives. See Rules of Professional Conduct, preamble. As officers and commissioners of the court, attorneys are in a special relationship with the judiciary and are “subject to the court’s discipline.” Statewide Grievance Committee v. Fountain, supra, 377.

It is well established that “[j]udges of the Superior Court possess the inherent authority to regulate attorney conduct and to discipline the members of the bar. ... It is their unique position as officers and commissioners of the court . . . which casts attorneys in a special relationship with the judiciary and subjects them to its discipline. . . . [T]he judges have empowered the statewide grievance committee to file presentments in Superior Court seeking judicial sanctions against those claimed to be guilty of misconduct. . . . In carrying out these responsibilities . . . the [statewide grievance committee] is an arm of the court . . . .” (Internal quotation marks omitted.) Statewide Grievance Committee v. Whitney, 227 Conn. 829, 838, 633 A.2d 296 (1993), quoting Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 525-26, 576 A.2d 532 (1990). “A court disciplining an attorney does so not to punish the attorney, but rather to safeguard the administration of justice and to protect the public from the misconduct or unfitness of those who are members of the legal profession.” Statewide Grievance Committee v. Fountain, supra, 56 Conn. App. 378.

Our court recently has clarified the appropriate appellate standard of review for cases involving attorney grievance appeals. In Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007), this court, after thorough analysis, determined that “the clearly erroneous standard ... is the preferable standard of review in attorney grievance appeals.” Id., 613. “A court reviewing an attorney disciplinary proceeding, therefore, retains its inherent authority over the discipline of its officers in those instances when, despite the evidence in the record, it nevertheless is left with a definite and firm conviction that a mistake has been made.” Id., 614. With that standard in mind, we turn to the defendant’s claims.

I

The defendant claims that the court did not conduct the presentment proceeding de novo. The plaintiff argues that after it initiated the presentment, a de novo evidentiary proceeding was held. We agree with the plaintiff.

The grievance review committee and the courts have their own distinct functions in the grievance process. “[Grievance panels and reviewing committees carry out what are essentially investigative, fact-bound functions that only determine the probability that an act of attorney misconduct has occurred. [T]here is no requirement that, in order to maintain the essential attributes of the judicial power, all determinations of fact in constitutional courts shall be made by judges. . . . For its part, the statewide grievance committee’s only function . . . was to initiate the presentment. . . . The ultimate decision as to whether an act of misconduct had occurred reposed solely with the judge, as did the power to administer an appropriate sanction.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Presnick, 215 Conn. 162, 167, 575 A.2d 210 (1990). We conclude that the trial court conducted a de novo evidentiary proceeding on the presentment in this case.

II

The defendant claims that she was denied due process of law when she was not able to confront and to cross-examine the complainant at the presentment before the court. The plaintiff argues that the court was correct in admitting the transcripts of the reviewing committee hearings into evidence upon the unavailability of the complainant. We agree with the plaintiff.

The following facts are relevant to the defendant’s claim. The plaintiff offered the transcripts of the reviewing committee’s hearings without objection from the defendant. It was only when the defendant was told that the plaintiff was resting after her testimony that she objected to the offer of the complainant’s testimony through the transcripts. The defendant was then given a continuance to subpoena the witnesses she wanted to present for her case-in-chief. On the date that was set for resuming the hearing, the defendant had not subpoenaed the complainant and instead went forward with an oral motion to dismiss on the basis of her claim that she was denied her right to cross-examine the complainant. At that hearing, counsel for the plaintiff stated to the court that she had spoken to the complainant since the first hearing and that he lived out of state and was not able to make the trip to court. During a colloquy with the court, the defendant twice admitted that she had cross-examined the complainant at the prior reviewing committee hearing. The court made a finding orally that the complainant was unavailable and that there was no evidence before the court that the reliability or veracity of the complainant had been brought into question. After ruling, the court took a brief recess so that the defendant could consider what evidence she wanted to present in her defense. Representing herself, she then presented her case-in-chief to the court.

“We begin our analysis with a review of the legal principles that govern attorney disciplinary proceedings. In part because such actions are adversary proceedings of a quasi-criminal nature . . . attorneys subject to disciplinary proceedings are entitled to due process of law. ... A license to practice law is a property interest that cannot be suspended without due process. . . . Due process, however, is a flexible concept, and a determination of the particular process that is due depends on the nature of the proceeding and the interests at stake.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Botwick, 226 Conn. 299, 306-307, 627 A.2d 901 (1993).

Because a grievance hearing is quasi-criminal in nature, we look to criminal law to resolve the defendant’s claim. “Under Crawford v. Washington, [541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], the hearsay statements of an unavailable witness that are testimonial in nature may be admitted under the sixth amendment’s confrontation clause only if the defendant has had a prior opportunity to cross-examine the declarant.” State v. Slater, 285 Conn. 162, 169, 939 A.2d 1105 (2008).

The record clearly shows that the defendant had a full and fair opportunity and did in fact cross-examine the complainant at the reviewing committee hearing. Admission of the complainant’s prior testimony did not deprive the defendant of due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant is presently suspended from the practice of law.

       Rule 1.4 (a) of the Rules of Professional Conduct (2003) provides: “A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”

       Rule 1.5 of the Rules of Professional Conduct (2003) provides in relevant part: “(b) When the lawyer has not regularly represented the client, the basis or rate of the fee, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and the scope of the matter to be undertaken shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation. This subsection shall not apply to public defenders or in situations where the lawyer will be paid by the court or a state agency.
      “(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent lee is prohibited by subsection (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.”

       Rule 1.15 (b) of the Rules of Professional Conduct (2003) provides: “Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.”

       See Practice Book § 2-35.

       Under the United States Supreme Court’s decision in Crawford, a testimonial statement is “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” (Internal quotation marks omitted.) Crawford v. Washington, supra, 541 U.S. 51; State v. Slater, 285 Conn. 162, 170, 939 A.2d 1105 (2008). The complainant’s testimony was therefore testimonial.


author: PETERS, J.

text:
    STATE OF CONNECTICUT v. JOHN ASHLEY FARMER
    (AC 27895)
    Gruendel, Beach and Peters, Js.

      Argued March 25
    officially released May 27, 2008

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Timothy F. Costello, special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

The constancy of accusation doctrine, which is codified in Connecticut Code of Evidence § 6-11 (c), permits the state to corroborate the testimony of a victim of a sexual assault by presenting evidence that the victim reported the fact and the timing of the assault to other persons. State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996) (en banc). The principal issue in this criminal appeal is whether the trial court complied with the limitations on such testimony imposed by Troupe when it admitted into evidence the testimony of two witnesses to whom the complainant in this case spoke the morning after the alleged assault. We affirm the judgment of the trial court in favor of the state.

In a substitute information filed December 1, 2005, the state charged the defendant, John Ashley Farmer, with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and assault in the second degree in violation of General Statutes § 53a-60 (a) (1). The jury found the defendant not guilty of the offense of sexual assault but found him guilty of the lesser included offenses of kidnapping in the second degree in violation of General Statutes § 53a-94 and assault in the third degree in violation of General Statutes § 53a-61 (a) (l). The trial court sentenced the defendant to a term of twenty years of incarceration. He has appealed.

The jury reasonably could have found the following facts. The defendant and the complainant lived together in an apartment in Bristol. Starting in mid-morning on October 19, 2004, they began to drink heavily and continued to do so through the day and evening. After watching a baseball game on television at the home of the defendant’s brother, the complainant began to drive both of them home. The defendant insisted that he should drive because she was too inebriated to do so. He assaulted her physically to force her to relinquish the driving of the car to him. Instead of driving them home to their apartment, the defendant drove to a desolate dirt road in Burlington where he resumed his physical assault of the complainant, removed her underclothes and engaged in sexual conduct with her. Eventually, the defendant drove the complainant to his mother’s house in Bristol. The next morning he allowed her to drive herself home.

When the complainant returned to the apartment, she reported that she had been sexually assaulted both to her daughter and to a friend, Angelo Russell, who was there awaiting transportation to work. She then called the police, whom she accompanied to the dirt road where the defendant had taken her. There they found her ripped underwear on the ground. A subsequent physical examination of the complainant at Bristol Hospital confirmed that she had been beaten.

The defendant did not deny striking the complainant but said that he had done so in self-defense after the complainant had begun hitting him. He acknowledged that he had engaged in sexual conduct with the complainant but alleged that their sexual engagement had been consensual. The jury rejected his first defense but accepted the second one.

The defendant’s appeal raises two issues. He maintains that the trial court (1) improperly overruled his objection to the testimony of the two witnesses who testified about the complainant’s description of the injuries inflicted on her by the defendant and (2) violated his constitutional rights by instructing the jury that the testimony of these witnesses was probative to corroborate the testimony of the complainant. We disagree.

I

Connecticut Code of Evidence § 6-11 (c) provides that “[a] person to whom a sexual assault victim has reported the alleged assault may testify that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall be limited to those details necessary to associate the victim’s allegations with the pending charge. The testimony of the witness is admissible only to corroborate the victim’s testimony and not for substantive purposes.” The defendant maintains that the trial court in this case misapplied § 6-11 (c) in permitting the state to present evidence by the complainant’s daughter and Russell.

Pursuant to State v. Saucier, 283 Conn. 207, 926 A.2d 633 (2007) (en banc), our review of the defendant’s claim that the trial court misapplied the code of evidence involves a two step process of review. We must first decide whether the evidence at issue properly can be characterized as falling within the permissible range of corroborative evidence in prosecutions for sexual assault. Our standard for review of this issue is plenary. If that threshold has been crossed, we then must decide whether the trial court’s decision to admit the testimony into evidence, premised on a correct view of the law, was an abuse of discretion. Id., 218.

Under the circumstances of this case, we cannot fault the two evidentiary rulings that the defendant challenges. The defendant virtually concedes that the admission of the disputed evidence to corroborate the testimony of the complainant comported with the constraints on evidence of constancy of accusation in sexual assault cases that our Supreme Court set out in State v. Troupe, supra, 237 Conn. 304-305. This court is obliged to follow the dictates of our Supreme Court. The trial court properly interpreted and applied § 6-11 (c).

The gravamen of the defendant’s objection to the testimony of the constancy of accusation witnesses is not that this testimony was improperly admitted with respect to the charge of sexual assault. Indeed, he was acquitted of that charge. He claims instead that the testimony should not have been admitted without informing the jury to disregard it with respect to the charges of kidnapping and assault, of which he was convicted. At trial, however, he did not object to the admission of the testimony of either of the constancy of accusation witnesses on that basis. This nonconstitutional claim does not, therefore, warrant appellate review. Practice Book § 60-5; Lorthe v. Commissioner of Correction, 103 Conn. App. 662, 699, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).

II

The defendant’s alternate argument in this appeal is that he is entitled to a new trial because of defects in the instructions on constancy of accusation evidence that the court gave the jury. With respect to each of the two constancy of accusation witnesses, the trial court instructed the jury during the trial that their evidence was “admitted solely to corroborate or not corroborate [the complainant’s] testimony in court .... This evidence of out-of-court statements by [the complainant] of a sexual assault against her by the defendant is not to be considered by you to prove the truth of the matter asserted in those out-of-court statements.” The trial court reiterated this instruction at the end of the trial.

The defendant did not object to these instructions at any time during the trial. He did not file a request to charge on the analysis of constancy of accusation testimony. Furthermore, after the trial court reviewed with counsel its proposed final instructions regarding the constancy of accusation witnesses, the court asked defense counsel whether the instructions were “[a]ll right, sir?” Defense counsel replied: “Yes, Your Honor.”

In light of this record, the defendant cannot now be heard to challenge the validity of the trial court’s instructions. Even if we were prepared to overlook established case law that arguments about evidence of constancy of accusation have no constitutional implications, our Supreme Court has held that “unpreserved, waived claims, fail under the third prong of [State v.] Golding, [213 Conn. 233, 239-40, 567 A.2d 823 (1989)].” State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872 (2007); accord State v. Brewer, 283 Conn. 352, 357 n.7, 360-61, 927 A.2d 825 (2007). The defendant’s claim in this case similarly is unreviewable.

We nonetheless take this opportunity to suggest that, in future cases in which evidence of constancy of accusation is admissible into evidence, the trial court should consider informing the jury expressly that this evidence may corroborate the complainant’s testimony only with respect to a charge of sexual assault. It may be difficult for a jury to keep in mind that evidence probative of sexual assault is not probative of kidnapping or assault. It would, however, be appropriate to facilitate that difficult task by jury instructions expressly making this distinction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-94 provides: “(a) A person is guilty of kidnapping in the second degree when he abducts another person.
      “(b) Kidnapping in the second degree is a class B felony for which three years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-61 provides in relevant part: “(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person ....
      “(b) Assault in the third degree is a class A misdemeanor . . .

       Indeed, as the state notes, the defendant has failed to identify any aspect of the testimony of either of these witnesses that overstepped the boundaries set by Troupe.


author: DiPENTIMA, J.

text:
    ISMET SABANOVIC v. NEDZMIJA SABANOVIC NEDZMIJA HASELJIC v. ISMET SABANOVIC
    (AC 28105)
    DiPentima, Gruendel and Stoughton, Js.
    Argued March 14
    officially released May 27, 2008

      Ian Cole, with whom, on the brief, were Dominick J. Thomas, Jr., and Gayle C. Carr, for the appellant (plaintiff in the first case, defendant in the second case).

      Patrick D. Skuret, for the appellee (defendant in the first case, plaintiff in the second case).
   Opinion

DiPENTIMA, J.

The plaintiff in the first case and the defendant in the second case (plaintiff), Ismet Sabanovic, appeals from the trial court’s judgments revoking sealing orders as to testimony, transcripts and exhibits in this family matter. Because the record before us does not contain any of the pertinent testimony, transcripts or exhibits, we are unable to consider whether the court abused its discretion. Accordingly, we affirm the judgments of the trial court.

The plaintiffs appeal arises from his attempt to limit disclosure of two files in which the defendant in the first case and the plaintiff in the second case (defendant), Nedzmija Haseljic, alleged sexual misconduct by the plaintiff as to the parties’ two minor children. On May 12, 2006, the plaintiff filed in the parties’ dissolution action a motion for contempt against the defendant for her refusal to allow visitation in violation of a previous order. On June 19, 2006, the court appointed a guardian ad litem, attorney Margarita Hartley Moore, on behalf of the minor children. Thereafter, on June 29, 2006, the defendant, on behalf of herself and the two minor children, filed an application for relief from abuse against the plaintiff. The court held hearings on the parties’ pleadings on July 13 and 21, and October 18, 2006. On July 20, 2006, pursuant to Practice Book § 25-59A (c), the plaintiff filed motions to seal or limit disclosure of documents in both the dissolution and the relief from abuse actions. On September 11, 2006, the court entered sealing orders as to “testimony of the parties and health care providers, transcripts of the parties and health care providers and exhibits of health care providers upon filing.” On September 18, 2006, sua sponte, the court revoked its sealing orders, stating: “Either party, or this court sua sponte, may reclaim this motion to consider entering a sealing order in the future relative to affidavits, documents, testimony of witnesses filed or lodged with the court pursuant to § 25-59A of the Connecticut Practice Book.” This appeal followed.

In this appeal, the plaintiff claims that the court improperly (1) vacated its previous orders sealing portions of the files, including records from the department of children and families and psychological records of the minor children, and (2) implicitly concluded that legitimate privacy concerns did not outweigh the public’s interest in viewing those records.

In reviewing a trial court’s decision granting or denying a motion to seal, we consider whether the court abused its discretion in making its decision. Vargas v. Doe, 96 Conn. App. 399, 408-409, 900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006). “Inherent ... in the concept of judicial discretion is the idea of choice and a determination between competing considerations. ... A court’s discretion must be informed by the policies that the relevant statute is intended to advance. . . . When reviewing a trial court’s exercise of the legal discretion vested in it, our review is limited to whether the trial court correctly applied the law and reasonably could have concluded as it did.” (Citation omitted; internal quotation marks omitted.) Id., 409.

In filing this appeal, the plaintiff certified that no transcript was necessary. See Practice Book § 63-4. Further, the plaintiff did not file any motion for articulation of the court’s sua sponte revocation orders. Without either a transcript or an articulation of the court’s discretionary ruling, the record is inadequate for a meaningful review of the issues on appeal. “[W]e do not decide issues of law in a vacuum. In order to review an alleged error of law that has evidentiary implications, we must have before us the evidence that is the factual predicate for the legal issue that the appellant asked us to consider.” (Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 368, 926 A.2d 1024 (2007). The absence of such a record is an insurmountable obstacle to review of the claims of error in the circumstances of this case. See id. The plaintiff, who, as the appellant, has the burden to provide this court with an adequate record, has failed to do so. See Practice Book § 61-10; Bove v. Bove, 103 Conn. App. 347, 354, 930 A.2d 712 (2007). For this reason, we decline to review the merits of the plaintiffs claims.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court’s revocation orders are final judgments for purposes of appeal because they “so concludefd] the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Regardless of the outcome of the underlying proceedings, the court would have no occasion to revisit the issues addressed by the court’s revocation orders, namely, whether the privacy interests of the parties’ children override the public’s interest in viewing the unsealed materials.

       Nedzmija Sabanovic’s surname was restored to Haseljic by the judgment of dissolution.

       The files are docket number FA-00-0069328-S, wherein the parties’ marriage was dissolved on January 17, 2001, and docket number FA-06-4006622-S, wherein the defendant sought relief from abuse under General Statutes § 46b-15. The latter case was dismissed shortly after this appeal was filed.

       On appeal, the guardian ad litem has adopted the position of the plaintiff and has elected not to file a separate brief. See Practice Book § 67-13.

       We also note that the underlying files do not, in fact, contain records from the department of children and families or psychological records as exhibits.


author: FLYNN, C. J.

text:
    WILLIAM GONZALEZ v. COMMISSIONER OF CORRECTION
    (AC 28002)
    Flynn, C. J., and Beach and Borden, Js.
    Argued March 26
    officially released May 27, 2008

      Robert J. McKay, special public defender, for the appellant (petitioner).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Kelly A. Masi, assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, William Gonzalez, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas coipus. The court granted the petition for certification to appeal to this court. On appeal, the petitioner claims that the court improperly dismissed his petition. We affirm the judgment of the habeas court.

After a comprehensive plea canvass by the sentencing court, the petitioner pleaded guilty under the Alford doctrine to one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (4), one count of racketeering in violation of General Statutes § 53-395 and ten counts of sale of narcotics in violation of General Statutes § 21a-277 (a). On August 15, 1995, he received a sentence of ten years imprisonment on the ten counts of sale of narcotics, a concurrent ten years of imprisonment on the count of racketeering and a consecutive eighteen years of imprisonment on the count of assault in the first degree for a total effective sentence of twenty-eight years incarceration. If the petitioner had not accepted a negotiated plea agreement and had gone to trial and received the maximum sentence for each of his crimes, he would have been exposed to a total effective sentence of 190 years, with a sixty year mandatory minimum sentence. The petitioner filed no direct appeal from his judgment of conviction but filed an amended habeas petition alleging ineffective assistance of his counsel, special public defender John Hyde, who negotiated the petitioner’s Alford plea.

At the habeas hearing, the petitioner admitted his involvement in ten separate sales of narcotics to an undercover police officer. He claimed, however, that he had two female witnesses who would vouch that he was not involved in the assault. The habeas court did not find this claim credible because these alleged witnesses were never brought to the attention of counsel or the police, nor were they brought before the habeas court to testify.

For a petitioner to prevail on a claim that he was denied the effective assistance of counsel while he entered a guilty plea, he must prove both that his counsel’s performance was deficient in that it fell below an objective standard of reasonableness and that he actually was prejudiced in that, but for counsel’s ineffective assistance, the petitioner would not have pleaded guilty. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), Copas v. Commissioner of Correction, 234 Conn. 139, 154-57, 662 A.2d 718 (1995); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The petitioner headed a drug selling ring in Rockville, and the assault for which he was convicted occurred when the petitioner, accompanied by at least six confederates, beat an individual who had become indebted to the petitioner. Although all of the petitioner’s associates joined him in beating and kicking the victim, once the victim had been knocked off his feet, it was the petitioner who administered a particularly brutal beating using a metal car ramp of the kind used to elevate automobiles. Several of his fellow members of the narcotics ring who were present and a passing motorist gave the police statements describing the petitioner beating the victim over the head with the ramp, shouting: “You die.” The victim of this brutal assault suffered a depressed skull fracture, collapsed lung, dislocation of fingers on one hand and numerous lacerations to the face and head.

After a careful review of the record, we conclude that the habeas court properly determined that the petitioner failed to show that his attorney’s performance was ineffective. The court made the following findings of fact, all of which are fully supported by the record. The petitioner’s attorney had years of experience negotiating pleas. The evidence against the petitioner was overwhelming on all of the charges to which he pleaded guilty. His attorney made a thorough investigation of the case, visited the crime scene and followed through on all potential witnesses of which he was made aware by the petitioner on his own investigation. The petitioner did not make his counsel aware of these purported female witnesses, nor did he present them to the habeas court. Counsel engaged two experts to assist in negotiating a favorable plea. One of them, Dr. James O’Brien, provided counsel with both information and opinion, which convinced the prosecuting authority to treat the petitioner more favorably as a drug-dependent person.

The petitioner has since developed the habeas equivalent of buyer’s remorse regarding a plea he freely accepted, and he now claims that there are witnesses he failed to produce at his habeas trial. This, however, does not alter the fact that he received both a fair and favorable total effective sentence. This is particularly so in light of his exposure to a potential total effective sentence of 190 years for the assault, racketeering and multiple narcotics offenses.

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The state points out in its appellate brief that these ten counts alone, without Hyde’s intervention to reduce them to sale of narcotics by a drug-dependent person, each carried a mandatory minimum sentence of five years imprisonment and a maximum term of twenty years imprisonment, for a total mandatory minimum sentence of fifty years and a total maximum sentence of 100 years imprisonment.


author: STOUGHTON, J.

text:
    DONALD MOODY v. COMMISSIONER OF CORRECTION
    (AC 27967)
    Lavine, Robinson and Stoughton, Js.

      Argued February 20
    officially released May 27, 2008

      Peter Tsimbidaros, for the appellant (petitioner).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

STOUGHTON, J.

The petitioner, Donald Moody, appeals following the denial of his petition for certification to appeal from the judgment dismissing his amended petition for a writ of habeas corpus. He claims that the habeas court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim that his trial counsel was ineffective. On the merits, the petitioner argues that his trial counsel, Avery Chapman, rendered ineffective assistance because he improperly failed (1) to present certain available evidence in the petitioner’s defense, (2) to request a charge to the jury on the theory of defense of others and (3) to ensure that the jury was impartial. We do not agree with his claims and dismiss the appeal.

The petitioner was twice tried on charges of having committed murder in violation of General Statutes § 53a-54a (a) and assault in the first degree in violation of General Statutes § 53a-59 (a) arising out of a fatal shooting that occurred in New Haven on November 9, 1994. In the first trial, the jury, on October 2, 1999, returned a guilty verdict on a charge of carrying a pistol without a permit, but the members of the jury were unable to agree on the murder and assault charges and a mistrial was declared on those charges. After the second trial, the jury found the petitioner guilty on the murder and assault charges on December 18, 2000. He was subsequently sentenced and thereafter appealed from the judgment. He claimed, inter alia, that the trial court improperly refused to admit the full transcript of a statement made to the police by a defense witness and that the court failed to investigate adequately whether jurors had seen certain notes made by the prosecutor. The judgment was affirmed. State v. Moody, 77 Conn. App. 197, 822 A.2d 990, cert. denied, 264 Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S. Ct. 831, 157 L. Ed. 2d 714 (2003).

The facts giving rise to the petitioner’s conviction as set forth in State v. Moody, supra, 77 Conn. App. 197, are as follows: “On November 9,1994, the victims, Marquis Clark and Frank Doughty, were walking with a third person near the intersection of George Street and Day Street in New Haven. The [petitioner] was behind the steering wheel of a car stopped at the traffic signal on Day Street. As the victims walked along the sidewalk on Day Street, they and the [petitioner] began shouting at each other. They had just walked past the rear of the [petitioner’s] car when the [petitioner] aimed a handgun over his shoulder and fired eight to ten shots at them through the car’s rear windshield. Doughty was shot in the thigh, but survived. Clark was shot in the hand and chest, and died of injuries to his heart and left lung. The third person walking with the victims returned the [petitioner’s] gunfire, striking the [petitioner] in the left leg. . . . The [petitioner’s] theory of defense at trial was that he had acted in self-defense when he shot Clark and Doughty.” Id., 199-200. The petitioner called Larry Smith, who was with him in the car at the time of the shooting, as a witness.

In his amended petition for a writ of habeas corpus, the petitioner claimed, among other things, that Chapman, counsel in the second trial, had rendered ineffective assistance in that he had failed (1) to present available evidence in the petitioner’s defense, (2) to request a charge to the jury on the theory of defense of others and (3) to ensure that the jury was impartial. After a trial, the habeas court determined that the petitioner had failed to prove either that his trial counsel’s performance was deficient, or that he had been prejudiced, and dismissed the petition. Thereafter, the court denied the petition for certification to appeal. This appeal followed.

Our standard of review is well established. When a habeas court has denied a petition for certification to appeal, the petitioner’s first burden is to demonstrate that the court’s ruling constituted an abuse of discretion. He may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason, that the court could resolve the issues differently or that the questions are adequate to deserve encouragement to proceed further. If the petitioner surmounts that hurdle, he must then demonstrate that the judgment of the habeas court should be reversed on its merits. Johnson v. Commissioner of Correction, 285 Conn. 556, 564, 941 A.2d 248 (2008).

We examine the underlying claims of ineffective assistance of counsel to determine whether the court abused its discretion in denying certification to appeal. This court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether those facts as found constituted a violation of the constitutional right to effective assistance of counsel is plenary. J.R. v. Commissioner of Correction, 105 Conn. App. 827, 831, 941 A.2d 348, cert. denied, 286 Conn. 915, 945 A.2d 976 (2008). To prevail on a claim of ineffective assistance of counsel, the petitioner must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Id., 832.

The first component requires that the petitioner show that counsel’s performance fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential and indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, that the challenged action might be considered sound trial strategy, and that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id., 832-33. The second component requires that the petitioner show that there is a reasonable probability that, but for the alleged unprofessional errors of counsel, the result of the criminal trial would have been different. Id., 833.

I

The petitioner first claims that his trial counsel was ineffective because he failed to present certain evidence to the jury. Specifically, the petitioner argues that his counsel improperly failed to have a witness to the shooting, Robert Randall, testify and that he failed to offer into evidence three portions of a transcript of a statement provided by another witness, Smith, after the court had granted permission to admit those portions.

A

The petitioner first argues that Chapman failed to call Randall, a witness who had been called by the state at the first trial. The habeas court found that Chapman had reviewed the transcript of the testimony given by Randall and had concluded that, if offered at the second trial, it might have been harmful to the defense. Randall had been in the area and heard several gunshots fired, but he did not know who had fired the gunshots because he had ducked down in his car to avoid danger. Randall additionally testified that, after the shooting seemed to have ended, he looked up and observed, among other things, one of the three individuals on the sidewalk begin to run. He noted that the petitioner’s car began to proceed along the road and testified that the car appeared to be following the pedestrian, and that he thought he had just witnessed a drive-by shooting. We agree with the habeas court that the decision not to call Randall was a matter of sound trial strategy within the wide range of reasonable professional assistance.

B

At the second trial, during cross-examination of the petitioner’s witness, Smith, the state asked about inconsistencies between his testimony and a prior police interview. State v. Moody, supra, 77 Conn. App. 201. When the petitioner’s counsel sought to introduce the entire transcript of the interview, in an attempt to rehabilitate Smith’s testimony, the court denied the motion but offered to permit the introduction of three sections. Id., 202. The petitioner’s counsel declined the limited offer, insisting that the admission of the entire transcript was necessary, and this court concluded, on direct appeal, that the trial court had not abused its discretion in declining to admit the full transcript. Id., 208.

At the habeas trial, the petitioner claimed that Chapman should have offered those portions of Smith’s statement that the trial court had deemed admissible and that the failure to do so amounted to ineffective assistance. Chapman wanted to have the entire transcript admitted but believed that to offer those parts that the trial court offered to admit would undermine the self-defense claim. Those portions in addition would show that Smith was untruthful. The habeas court found that Chapman had a reasonable basis for making the choice that he made and that this was a matter of reasonable trial strategy. We agree.

II

The petitioner next claims that Chapman rendered ineffective assistance in that he failed to request a jury instruction on the defense of a third person and to take exception to an inadequate instruction on self-defense. The latter part of this claim, although briefed for this appeal in cursory fashion, was not raised in the habeas court, and we will not afford it consideration.

In each of his criminal trials, and in his statement to the police, the petitioner claimed that he acted in self-defense. At the habeas trial, he testified that he shot his weapon in self-defense and also to protect Smith. The court found that Chapman had reviewed the transcript of the testimony of the first trial and the materials obtained through discovery, and had discussed the case with the petitioner. On the basis of his research and review, Chapman had concluded that there was no factual predicate for a claim of defense of others. In addition, the court determined that the petitioner had never claimed at his criminal trial that he was protecting Smith and further found that the petitioner had engaged in conduct that put Smith in danger. The court properly determined that there was no evidentiary basis on which to claim a defense of others instruction, and, therefore, Chapman’s performance was not deficient for not requesting it.

Ill

Finally, the petitioner argues that Chapman rendered ineffective assistance in failing to take measures to ensure an impartial jury and that the trial court, similarly, failed to ensure an impartial jury. This claim was at least partially resolved on direct appeal. The jurors were given a transcript of a taped statement made by the petitioner. This occurred first when the police officer who took the statement testified. It occurred again during cross-examination of the petitioner. The petitioner claimed on appeal that the court failed to investigate adequately whether jurors saw certain notes made by the prosecution that were inadvertently given to an alternate juror during the cross-examination of the petitioner. When the mistake was discovered, the court questioned the alternate juror, and she stated that she could set aside anything she had read. The court instructed the entire jury not to discuss the markings. Later, after the petitioner had moved for a mistrial, the court asked the jurors whether any other juror had received a transcript with extraneous writings and whether the alternate juror had discussed the writing with any other juror. None of the jurors indicated that they had received a transcript with extraneous markings, and all responded that the alternate juror had not discussed the writings. The petitioner argued that the court improperly failed to ascertain whether any jurors had seen the writings on the transcript when it was first distributed. On direct appeal, this court concluded that the court’s question was broad enough to encompass both occasions and that the court did not abuse its discretion by not asking about a specific date. State v. Moody, supra, 77 Conn. App. 225. We also refused to consider a claim that the court had failed to ask each juror individually whether he or she had seen the transcript with the notes because that claim had not been raised in the trial court. Id.

The petitioner claims that Chapman should have sought permission to question each of the jurors individually and that his failure to do so rendered his assistance ineffective. As the habeas court referenced in its decision, Chapman requested that the court excuse the alternate juror immediately upon learning that she had read the extraneous writing or, in the alternative, that the court instruct the jurors not to discuss the writing. The court agreed with Chapman’s second request. After the close of evidence, Chapman orally requested a mistrial on December 15, 2000, on the basis of the alternate juror’s exposure to the extraneous comments. He subsequently filed a motion for a mistrial on December 18, 2000, on the same ground and, additionally, on the ground that it was not clear whether any other juror had received a copy of the transcript containing the extraneous writing. In response, the court asked the jurors whether any of them had seen the extraneous writing or whether they had discussed the writing with the alternate juror, who, by that time, had been dismissed and would not participate in the jury deliberation. Chapman then stated that he did not believe that the canvass was sufficient. The court determined that the canvass was sufficient and denied the motion for a mistrial. See State v. Moody, supra, 77 Conn. App. 222-23. We agree with the habeas court that Chapman was not ineffective for refraining from pursuing the matter further.

The court concluded that the petitioner had failed to prove either deficient performance or prejudice as a result of any alleged deficiencies and that there were no issues warranting appellate review. We find no abuse in discretion in the court’s rulings. None of the issues raised is debatable among jurists of reason, could be resolved differently or is adequate to deseive encouragement to proceed further.

The appeal is dismissed.

In this opinion the other judges concurred.

       The text of the three portions of the transcript that the court deemed admissible may be found in State v. Moody, supra, 77 Conn. App. 202 n.3.

       The petitioner’s argument on appeal relies primarily on the first portion of the transcript that was deemed admissible. The police had asked Smith whether he knew the petitioner’s first name, to which Smith replied that he did not. At trial, it became evident that Smith did know the petitioner’s first name at the time of the interview, and the state impeached Smith’s testimony on this point. The petitioner, in his appellate brief, argues that the police did not ask Smith about the petitioner’s first name, but rather asked if Smith knew the petitioner “by any other name,” suggesting that they were asking for an alias. The petitioner, however, selectively quotes the transcript. The transcript records that the full question was: “Do you know the [petitioner] by any other name, his first name or street name?” (Emphasis added; internal quotation marks omitted.) State v. Moody, supra, 77 Conn. App. 203 n.3.