author: MIHALAKOS, J.

text:
    JACOB CRUMP v. COMMISSIONER OF CORRECTION
    (AC 21800)
    Mihalakos, Dranginis and Dupont, Js.
    Submitted on briefs December 10, 2001
    officially released February 19, 2002

      Patrice A. Cohan, special public defender, filed a brief for the appellant (petitioner).

      Linda N. Howe, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

MIHALAKOS, J.

The petitioner, Jacob Cramp, appeals from the habeas court’s dismissal of his third amended petition for a writ of habeas corpus. On appeal, he claims that the court improperly failed to find that (1) his trial counsel was ineffective, (2) his appellate counsel was ineffective and (3) he was innocent. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of this appeal. The petitioner was charged with the crimes of murder, attempt to commit murder, assault in the second degree, carrying a pistol without a permit and conspiracy to commit murder. After a trial by jury, the petitioner was convicted of attempt to commit murder, carrying a pistol without a permit and conspiracy to commit murder. On January 20,1995, he was sentenced to an effective term of imprisonment of twenty years, execution suspended after fourteen years, and five years probation. His conviction was affirmed on direct appeal. State v. Crump, 43 Conn. App. 252, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).

Subsequently, the petitioner filed a third amended petition for a writ of habeas corpus, alleging ineffective assistance of both trial and appellate counsel, and actual innocence. Following an evidentiary hearing, the court dismissed the petition and later granted certification to appeal. This appeal followed.

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. “Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Hylton v. Commissioner of Correction, 67 Conn. App. 471, 472, 786 A.2d 1292 (2001), cert. denied, 259 Conn. 924, 792 A.2d 854 (2002).

In Strickland v. Washington, 466 U.S. 668, 671, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court considered “the proper standards for judging a criminal defendant’s contention that the Constitution requires a conviction ... be set aside because counsel’s assistance at the trial . . . was ineffective.” A claim of ineffective assistance of counsel has two components. “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id., 687; see also Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992).

To satisfy the first component, the petitioner must prove, under all of the circumstances existing at the time of the trial, that the representation fell below an objective standard of reasonableness, and he must also overcome the presumption that alleged ineffective assistance was not the result of sound trial strategy. Strickland v. Washington, supra, 466 U.S. 689. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 66 Conn. App. 598, 601, 785 A.2d 1143 (2001). If the first prong is met, then the petitioner must prove that trial counsel’s errors were such that they deprived the petitioner of a fair trial and that, but for the errors, the result of the trial would have been different. Id., 601-602.

“The constitutional right of a criminal defendant to effective assistance of counsel also includes the right to such assistance on the defendant’s first appeal as of right. . . . We have adopted the two-part Strickland analysis in the context of a claim of ineffective assistance of appellate counsel.” (Internal quotation marks omitted.) Bunkley v. Commissioner of Correction, supra, 222 Conn. 455. “Thus, since [t]he purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding . . . that ‘proceeding’ must be regarded as the entire continuum of the adjudicatory process, both trial and appeal.” (Citation omitted; internal quotation marks omitted.) Id., 460.

The petitioner first claims that he was denied the effective assistance of counsel in violation of his federal and state constitutional rights. Specifically, he claims that because his trial counsel did not object to the charge of conspiracy to commit murder and his appellate counsel failed to brief the issue, he was deprived of effective assistance of counsel. The crux of the petitioner’s argument is that it was legally impossible for him to be convicted of conspiracy to commit murder because his alleged coconspirator was convicted of involuntary manslaughter, and, therefore, did not possess the necessary intent for murder. Because the petitioner’s claims of ineffective assistance of trial counsel and appellate counsel are centered on his conspiracy conviction, and our standard of review is the same for both, we will address these claims together.

“[Conspiracy requires a showing that two or more co-conspirators intended to engage in or cause conduct that constitutes a crime. Under our statute, therefore, a defendant cannot be guilty of conspiracy if the only other member of the alleged conspiracy lacks any criminal intent.” (Emphasis added.) State v. Grullon, 212 Conn. 195, 199, 562 A.2d 481 (1989). “Conspirators need not all be charged in order to sustain a conviction of one of them for conspiracy.” State v. Shaw, 24 Conn. App. 493, 494 n.1, 589 A.2d 880 (1991). Even if a coconspirator is charged and acquitted of conspiracy in a separate proceeding, “the conviction of a conspirator may be upheld . . . where there is sufficient evidence to prove, beyond a reasonable doubt, that the defendant was guilty of conspiracy.” State v. Colon, 257 Conn. 587, 601, 778 A.2d 875 (2001), overruling State v. Robinson, 213 Conn. 243, 567 A.2d 1173 (1989).

The petitioner’s alleged coconspirator, Stefan Bagley, was not charged with conspiracy, but he was convicted of manslaughter in the first degree as a result of an incident that occurred on August 14, 1991. See State v. Bagley, 35 Conn. App. 138, 139, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994). In a subsequent proceeding, the petitioner was convicted of conspiracy to commit murder, attempt to commit murder and carrying a pistol without a permit. The petitioner’s trial counsel did not object to the charge of conspiracy to commit murder, and his appellate counsel failed to adequately brief the claim of legal impossibility. State v. Crump, supra, 43 Conn. App. 261. He now maintains that those deficiencies constituted ineffective assistance of counsel.

The petitioner cites to State v. Grullon, supra, 212 Conn. 195, for the proposition that it was legally impossible for him to be convicted of conspiracy to commit murder because his alleged coconspirator lacked the requisite intent. This reliance is misplaced. In Grullon, the alleged coconspirator was a police informant. The court held “[u]nless the state proved that some other person, with culpable intent, agreed with the defendant to violate the law, the defendant was entitled to acquittal on this count.” (Emphasis added.) Id., 203. In the present case, the petitioner’s coconspirator was convicted of manslaughter in the first degree. “Lack of the requisite intent for murder, however, does not necessarily reheve the defendant of criminal culpability.” (Internal quotation marks omitted.) State v. Cartagena, 47 Conn. App. 317, 323, 708 A.2d 964 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998). In fact, “manslaughter in the first and second degrees and criminally negligent homicide are lesser included offenses within the crime of murder.” (Internal quotation marks omitted.) Id.

Because Bagley was convicted of manslaughter, the petitioner cannot show that his coconspirator lacked criminal intent. The fact that Bagley was not charged with conspiracy does not bar the state from bringing conspiracy charges against the petitioner or void his conviction of conspiracy. See State v. Shaw, supra, 24 Conn. App. 494 n.1. The petitioner’s claim of legal impossibility must fail as a matter of law. Accordingly, counsel’s refusal to pursue a defense destined to fail, as a matter of law, does not constitute ineffective assistance of counsel.

In addition, the petitioner claims that trial counsel failed to investigate possible defenses and failed to call Bagley to testify that the petitioner was not engaged in a conspiracy with him on August 14, 1991. The court found “that the various legal positions [trial counsel] took during the course of the criminal trial were consistent with his obligation to provide a vigorous and exhaustive defense for the petitioner.”

On the basis of our review of the record, we conclude that the petitioner has failed to overcome the presumption that the performance of both counsel fell within the wide range of reasonable professional assistance. See Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). The court, therefore, properly determined that the petitioner failed to satisfy his burden of establishing that either trial counsel or appellate counsel provided ineffective assistance.

The petitioner’s final claim is that the court improperly concluded that he was not innocent of the crimes with which he was charged. The substance of the petitioner’s argument is that the witnesses’ testimony at the criminal trial conflicted with the testimony at the habeas trial. We are not persuaded.

“In a petition for a writ of habeas corpus, the proper standard for evaluating a freestanding claim of actual innocence, like that of the petitioner, is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence— both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial— he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” (Internal quotation marks omitted.) Denby v. Commissioner of Correction, 66 Conn. App. 809, 817, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002), quoting Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997).

The court found that “the testimony of all of [the witnesses] was inconsistent, contradictory of each other and contradicted by evidence offered at the criminal trial.” In addition, the court found none of the witnesses offered by the petitioner to be credible with respect to the testimony at the habeas trial. The petitioner therefore failed to prove by clear and convincing evidence that he did not conspire with Bagley to commit murder. In addition, he failed to establish that no reasonable fact finder would find him guilty of the crimes with which he was charged.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petition alleged in the first count that the petitioner was denied the effective assistance of counsel in violation of his federal and state constitutional rights in that trial counsel (1) failed to object and thereby preserve for appellate review the charge of conspiracy in that said charge was a legal impossibility; (2) failed to investigate possible defenses, to wit: (a) failed to acquaint himself with the facts and circumstances of the alleged coconspirator’s case so that he was not caught unaware at the hearing in probable cause; (b) failed to obtain transcripts of the hearing in probable cause and trial in the matter of State v. Bagley, 35 Conn. App. 138, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994); (c) failed to interview the petitioner’s brother to ascertain the contents of his police statement; and (3) failed to call Stefan Bagley to testily that petitioner was not engaged in a conspiracy with him on August, 14, 1991.
      The second count of the petition alleged that appellate counsel was ineffective in that he failed to brief properly the claim that conviction on the charge of conspiracy constituted a legal impossibility when the sole alleged coconspirator lacked the specific intent for murder so that the Appellate Court would review the claim.
      The third count alleged that the petitioner actually is innocent because he did not participate in the crimes with which he was charged.

       The habeas court properly cited to State v. Robinson, supra, 213 Conn. 253, for the proposition that “[i]f Bagley had been acquitted of conspiring with the petitioner, then obviously the petitioner could not later be found guilty of conspiring with Bagley since the crime of conspiracy involves an illegal agreement by one person with at least one other person.” On August 14, 2001, however, our Supreme Court overruled Robinson and held that a defendant can be guilty of conspiracy if his alleged coconspirator is acquitted in a separate proceeding. State v. Colon, supra, 257 Conn. 601.

       In a separate trial before the petitioner’s hearing in probable cause, Bagley was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49, and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). State v. Bagley, supra, 35 Conn. App. 139. The state had charged Bagley with murder, but the charge was reduced to manslaughter after his hearing in probable cause. Id., 140 n.2.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    IN RE EBONY H

    (AC 22047)
    Lavery, C. J., and Dranginis and Bishop, Js.
    Submitted on briefs January 7
    officially released February 19, 2002

      Raymond J. Rigat filed a brief for the appellant (respondent mother).

      Richard Blumenthal, attorney general, and Maureen D. Regula and Susan T. Pearlman, assistant attorneys general, filed a brief for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

BISHOP, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights. On appeal, the respondent claims that the court improperly found that the petitioner, the commissioner of children and families (commissioner), had made reasonable efforts to reunify her and her child, and, therefore, that the court violated General Statutes § 17a-112 (j) when it terminated her parental rights. We affirm the judgment of the trial court.

Our review of the record discloses the following relevant facts. On April 19, 1999, the court, Alander, J., adjudicated the child neglected and committed her to the protective custody of the commissioner after concluding that she was living under conditions injurious to her well-being. On that day, the court also prescribed specific steps that the respondent must take to regain custody of the child. See General Statutes § 46b-129 (j). Those steps included the following: The respondent was required (1) to attend all appointments with the department of children and families (department), (2) to participate in individual counseling, including anger management and domestic violence counseling, (3) to submit to a substance abuse assessment and follow recommendations regarding treatment, (4) to complete substance abuse treatment successfully, including inpatient treatment if necessary and (5) to submit to random drug testing.

On March 15, 2000, the court, Conway, J., extended by twelve months the child’s commitment to the protective custody of the commissioner. On that same day, the commissioner filed a petition to terminate the respondent’s and the father’s parental rights to the child. In her petition, the commissioner alleged that (1) the department had made reasonable efforts to locate the respondent and the father, (2) the department had made reasonable efforts to reunify the child with the respondent and the father, (3) the respondent and the father were unable or unwilling to benefit from reunification efforts, (4) the child had been found in a prior proceeding to have been neglected or uncared for, and (5) the respondent and the father had failed to achieve such a degree of personal rehabilitation that would encourage the belief that either could assume a responsible position in the life of the child within a reasonable period of time.

On March 13, 2001, the court, Esposito, J., extended the child’s commitment again, and found, pursuant to a motion for review of the child’s permanency plan, that it was not appropriate for the department to continue to make efforts to reunify the child with the respondent or the father. On April 23, 2001, the commissioner filed an amended petition to terminate the respondent’s and the father’s parental rights in which she updated the specific factual allegations she previously had alleged in support of termination.

The court, Conway, J., commenced trial on the amended petition on April 26, 2001. On May 30, 2001, the court rendered judgment terminating the parental rights of the respondent and the father pursuant to § 17a-112 (j). In so doing, the court concluded, inter alia, that (1) the department had made reasonable efforts to reunify the child with the respondent, (2) termination was in the best interest of the child and (3) the respondent had failed to achieve the requisite degree of personal rehabilitation. See General Statutes § 17a-112 (j) (1), (2) and (3) (B) (ii). On June 21,2001, the respondent filed the present appeal, challenging only the court’s finding that the department had made reasonable efforts to reunify her and the child.

In rendering judgment, the court found the following facts. The child was bom on May 26,1997. Because the respondent was imprisoned at the time of the birth, the child was discharged from the hospital to the custody of a maternal aunt. When the respondent was released from prison in September, 1997, she assumed custody of the child and, soon thereafter, moved into a motel. In January, 1998, the state successfully prosecuted the respondent after testing revealed that she had been using cocaine. The respondent and the child were placed in an alternative incarceration program for women with babies. Two months later, the respondent was transferred to a prison; she was released in April, 1998.

In November, 1998, the respondent was arrested on a domestic violence charge and, again, was successfully prosecuted; she was imprisoned for one month and placed on three years probation. The respondent later “threatened or physically assaulted two of the three [department] social workers assigned to the case.”

In the months following April, 1999, the respondent did not comply with some of the specific steps that had been prescribed by the court: She failed to attend counseling sessions for anger management, and she failed to attend domestic violence counseling sessions. In October, 1999, the respondent was enrolled in an inpatient substance abuse program. She quit the program one month later. The department then referred the respondent to a series of outpatient substance abuse programs. The respondent, nevertheless, failed to keep her appointments and continued to test positive for cocaine use. Finally, on November 21,2000, the respondent enrolled in an inpatient program at Connecticut Valley Hospital (hospital) and successfully completed a forty-five day substance abuse treatment program.

Upon completing the program, the respondent asked the department to assist her in obtaining housing. In response, the department “did nothing more than make one telephone call to Community Action with no follow up. ” Nine days after the respondent completed the forty-five day program, a drug test revealed that she once again was using cocaine. In March, 2001, the respondent sought to enroll in another outpatient substance abuse program. She, nonetheless, missed each of three appointments that had been scheduled to admit her into the program. Finally, the court found that as of the conclusion of the termination proceedings, the respondent continued to use cocaine and that the child had spent more than three of her four years of life in foster care.

The court concluded that the department had “made reasonable efforts to reunite the parents with [the child].” It noted that the department had worked with the respondent on trying to find suitable drug treatment programs. It noted also that the department had offered intensive family preservation services as far back as 1998 and that the respondent and the father had refused those services. Although the department’s response to the respondent’s request for assistance in obtaining housing following her stay at the hospital had been “shameful and far beneath any acceptable level of professional conduct,” the commissioner proved “by clear and convincing evidence that reasonable efforts had been made to reunify [the child] with her parents.” The department had made multiple referrals for the respondent to assist her in overcoming her cocaine addiction. Additionally, the court concluded: “Neither respondent parent has been prevented from maintaining a meaningful relationship with [the child] by any unreasonable act or conduct of each other or any other person, agency or economic circumstances. . . . Cocaine addiction and a failure to follow through on counseling are the factors that prohibit reunification with the [respondent].” Additional facts and procedural history will be presented as necessary.

We now address the respondent’s claim that the court improperly concluded that the department had made reasonable efforts to reunify her and her child. Specifically, the respondent contends that the court’s finding that the department responded inadequately to her request for assistance in obtaining housing following her stay at the hospital precludes a finding that the department had made reasonable efforts to reunify her and her child. We disagree.

“To terminate parental rights under § 17a-112 (c), now (j), the department is required to prove by clear and convincing evidence that it has made reasonable efforts to reunify the children with the parent unless the court finds that the parent is unable or unwilling to benefit from reunification efforts. In accordance with § 17a-112 (c) (1), now (j) (1), the department may meet its burden concerning reunification in one of three ways: (1) by showing that it made such efforts, (2) by showing that the parent was unable or unwilling to benefit from reunification efforts or (3) by a previous judicial determination that such efforts were not appropriate.” In re William R. III, 65 Conn. App. 538, 546, 782 A.2d 1262 (2001). “The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.” In re Daniel C., 63 Conn. App. 339, 361, 776 A.2d 487 (2001).

“The term reasonable efforts was recently addressed by this court: Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) Id., 361. “ [Reasonableness is an objective standard . . . and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case.” (Internal quotation marks omitted.) Id., 362-63.

Our review of the evidence admitted at the trial disclosed the following additional relevant facts. Clarence Coles, a department social worker, testified that the respondent, upon her release from the hospital, had moved in with the father of the child and that the department had continued to schedule weekly visitation sessions with the child for the respondent and the father. Coles’ testimony was uncontradicted. Sally Fleming, a department social worker and supervisor, testified that the child, at the time of trial, was living with a foster family and that she had been living with that same family for two years. Her testimony was also uncontradicted. Thus, the evidence admitted at the trial indicates that, at the time the respondent was released from the hospital, she did not have custody of the child and had not had custody for quite some time. More importantly, it indicates also that the respondent had a place to live and that the department was arranging visits with the child for her.

Notwithstanding the court’s finding that the department’s response to the respondent’s request for assistance in obtaining housing was shameful and unacceptable, our review of the evidence admitted at the trial does not leave us with a definite and firm conviction that the court mistakenly found that the department had made reasonable efforts to reunify the respondent and the child. The evidence overwhelmingly supports the court’s findings that the department, on numerous occasions, had enrolled the respondent in treatment programs to assist her in overcoming her cocaine addiction, and that that addiction, coupled with her failure to attend counseling sessions on anger management, thwarted the department’s efforts to reunify her and the child. As a general proposition, a court, in determining whether the department made reasonable efforts to reunify a parent with a child, may consider the degree of assistance the department provided that parent in obtaining housing. Nevertheless, the court, in the present case, properly discounted the significance of the department’s lapse in that regard. As previously indicated, we recognize that the department is not required to do everything possible to reunify a parent with a child. With that principle in mind and in light of the evidence admitted at the trial, we conclude that the court’s finding that the department made reasonable efforts to reunify the respondent and the child is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the respondent father. Because he has not appealed from the judgment, we refer in this opinion to the respondent mother as the respondent.

       General Statutes § 17a-112 Q) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ... (2) that termination is in the best interest of the child, and (3) that . . . (B) the child . . . (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       General Statutes § 46b-129 (j) provides in relevant part: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the Commissioner of Children and Families for a maximum period of twelve months, unless such period is extended in accordance with the provisions of subsection (k) of this section, provided such commitment or any extension thereof may be revoked or parental rights terminated at any time by the court, or the court may vest such child’s or youth’s care and personal custody in any private or public agency which is permitted by law to care for neglected, uncared-for or dependent children or youth or with any person or persons found to be suitable and worthy of such responsibility by the court. The court shall order specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent. . . .”
      “The specific steps are also considered 'fair warning’ of the potential termination of parental rights in subsequent proceedings pursuant to [General Statutes] § 17a-112.” In re Jeffrey C., 64 Conn. App. 55, 62, 779 A.2d 765, cert. granted in part, 258 Conn. 924, 783 A.2d 1027 (2001).

       “Afmding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985).


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. DONNETTE GRANT
    (AC 20642)
    Landau, Dranginis and Hennessy, Js.
    Argued November 28, 2001
    officially released February 19, 2002

      Richard S. Cramer, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Donnette Grant, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) denied her right to call her prior attorney as a witness to her police interrogation and (2) expanded the charges against her when it explained during the jury instruction on recklessness that the standard of conduct of a reasonable person included ‘‘declining to do what a reasonably prudent person would not do,” when such language was not included in the information. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Lennox Walker, the victim’s father, arranged for the defendant to care for the victim, Lamar Walker, who was four months old. Kerry Ann Douglas, the victim’s mother, took the victim to the defendant’s apartment on the morning of August 12, 1994. Approximately two hours after the victim was left in the defendant’s care, the victim required hospitalization because he was not breathing.

At 11:18 a.m., a police certified dispatcher received a 911 call from 887 Asylum Avenue in Hartford, the location of the defendant’s apartment. Emergency personal responded and found that the victim was not breathing, had no pulse, and was cold, pale and blue from lack of oxygen in his blood. The paramedics transported the victim to Saint Francis Hospital and Medical Center. Because of the victim’s special needs at that time, he was taken by Life Star helicopter to Hartford Hospital, which has an intensive care unit specially designed for very young children. Medical examination of the victim revealed that he had sustained the following injuries: Severe swelling of the brain, bleeding in the head, retinal hemorrhage and fractures in five bones. On August 14, 1994, the victim died at the hospital from the injuries he had sustained.

During the state’s case, Detective Keith Knight of the Hartford police department testified that he interviewed the defendant twice at police headquarters, once on August 13, 1994, and again on August 16, 1994. The defendant’s attorney, Ronald D. Peikes, was present at the August 16, 1994 interview. Additional facts will be set forth as necessary.

I

The defendant first claims that the court’s order excluding Peikes’ testimony violated her right to present a defense as guaranteed by the sixth and fourteenth amendments to the United States constitution. Specifically, the defendant argues that the court improperly excluded, as irrelevant, Peikes’ testimony regarding the “general atmosphere that surrounded [her police] interview.”

The following additional facts are relevant to our resolution of the defendant’s claim. During trial, both Knight and the defendant testified about the conversation and events that took place during the August 16, 1994 interview. Knight testified that there was no confusion on the part of the defendant regarding the questions and answers that occurred during the interview. The defendant testified that she was very nervous when she spoke to the police, and was made more nervous when Knight kept tapping his pen on the table and “stomping” his feet on the floor. She did not testify, however, that she was confused by the questions asked during the interview.

On appeal, she now claims that Knight’s behavior caused her to become confused and prone to misspeak in her recitation of the facts. She farther claims that Peikes’ testimony would have refuted Knight’s testimony, thereby adding to the credibility of her testimony and, therefore, it was relevant evidence that should not have been excluded. Moreover, she claims that the exclusion resulted in reversible error. We disagree.

Before addressing the defendant’s claim, we first note the applicable law and standard of review. “The sixth amendment right to compulsory process includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. ... A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Citation omitted; internal quotation marks omitted.) State v. King, 249 Conn. 645, 668, 735 A.2d 267 (1999). “The determination of whether a matter is relevant to a material issue or is collateral generally rests within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Hall, 66 Conn. App. 740, 757, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002).

“It is well established that [t]he trial court has broad discretion in ruling on the admissibility of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Claveloux v. Downtown Racquet Club Associates, 246 Conn. 626, 628, 717 A.2d 1205 (1998). In State v. King, supra, 249 Conn. 645, our Supreme Court articulated the standard of review of challenges to a trial court’s evidentiary rulings. It stated that “[t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Id., 669.

To determine whether the court abused its discretion when ruling to exclude the evidence, we must first ascertain if the court improperly held that the proffered evidence was not relevant.

“[Challenged [e]vidence is relevant if it has a tendency to establish the existence of a material fact. . . . Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. ... No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason . . . .” (Citations omitted; internal quotation marks omitted.) State v. Paris, 63 Conn. App. 284, 292-93, 775 A.2d 994, cert. denied, 257 Conn. 909, 782 A.2d 135 (2001).

Prior to the start of the defendant’s case, the state requested that the defendant make an offer of proof regarding the specifics of Peikes’ proffered testimony. The defendant claimed that Peikes’ testimony could contradict Knight’s testimony about the “mood” of the interview. The defendant then argued that her “constitutional right to present a defense” entitled her to have Peikes testify regarding that topic. In response to the defendant’s claim, the state declared that the defendant only offered Peikes’ testimony for a “self-serving purpose, to get statements of the defendant and her views about the interview in, without testifying herself.”

The court disagreed with the defendant’s claim and noted that although Peikes’ testimony would have been allowed as relevant if defense counsel intended it to “show that the statements [of the defendant] were not voluntarily made,” it was not relevant in this case. It was not being offered for that purpose and did not relate to anything other than what the court deemed to be “collateral matters.”

We conclude that the court’s inquiry into the relevance of Peikes’ testimony was sufficient to support its pronouncement that the “circumstances of the interview” were collateral matters. Furthermore, in her brief, the defendant admits that “Peikes’ testimony may not have been crucial to the defense,” but “it did at least slightly bolster the defendant’s credibility, explained her confusion at the August 16, 1994 interview and refuted, to some extent, the testimony of Detective Knight.” She also acknowledges that Peikes’ testimony was being offered merely to impeach Knight’s testimony regarding the “general atmosphere” of the interview.

“It is axiomatic that the defendant bears the burden of establishing the relevance of the proffered testimony and that unless a proper foundation is established, the evidence is not relevant.” State v. Madagoski, 59 Conn. App. 394, 406, 757 A.2d 47 (2000), cert. denied, 255 Conn. 924, 767 A.2d 100 (2001). We find that the defendant’s arguments failed to meet that burden and thus conclude that the court properly ruled Peikes’ testimony to be irrelevant. The record fully supports the court’s conclusion that the defendant did not meet her burden of establishing the relevance of Peikes’ testimony and, accordingly, we conclude that the court did not abuse its discretion by excluding it. Thus, her constitutional right to present a defense under the sixth amendment to the United States constitution, which is applicable to the states through the fourteenth amendment, was not violated, nor was her right to due process under article first, § 8, of the constitution of Connecticut.

II

The defendant next claims that the court’s instruction to the jury defining recklessness improperly expanded the charges against her, thereby violating her due process rights as guaranteed by the sixth and fourteenth amendments to the United States constitution. Specifically, the defendant takes issue with the court’s definition in its jury charge of the standard of conduct of a reasonable person.

In its instruction to the jury, the court stated that “[t]he standard of conduct of a reasonable person may be defined as doing what a reasonably prudent person would do under the circumstances ... or declining to do what a reasonably prudent person would not do under the circumstances.” (Emphasis added.) After the completion of the charge, the defendant objected to the latter part of the definition of the standard of conduct of a reasonable person. The court refused to give a curative instruction on the basis of its belief that the instruction was not misleading. We agree with the court.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the juiy . . . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . .

“In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Hall, supra, 66 Conn. App. 759.

In particular, the defendant argues that the jury charge, as given, could mislead the jury into believing that it could convict her of manslaughter in the first degree on the basis of recklessness if it found that she had failed to call for medical help in a timely manner. We disagree.

At no time during its charge to the jury did the court suggest that the defendant could be found guilty of manslaughter in the first degree if the jury found that she had failed to call emergency services promptly. In fact, the court never mentioned the delay at all in the jury charge. Further, the court directed the jury as to what evidence to consider under the standard of conduct of a reasonable person.

The court specifically instructed the jury: “In essence, with respect to this charge, the state presented evidence to show that the baby was shaken so hard that he died as a result and that it was the defendant who did this while the baby was in her custody. The state further claims that this conduct demonstrated extreme indifference to human life and that it was reckless; that is, that the defendant consciously disregarded a substantial and unjustifiable risk that the baby would die from the shaking and that this was something that no reasonably prudent person would do. Further, the state claims that the defendant’s shaking the baby was a gross deviation from the standard of conduct that a reasonably prudent person would follow under the circumstances.”

Considering the jury charge as a whole, and the court’s instruction as to what evidence the jury must consider, it is not reasonably possible that the jury understood the charge to have the meaning proposed by the defendant. Thus, we conclude that the court did not expand the charges against the defendant and that her constitutional right to a fair trial was not violated.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the defendant’s brief, her first name is spelled Donette. In the record and transcript, however, her first name is spelled Donnette. In the interest of conformity, we adopt the spelling in the record and transcript.

       The defendant was found not guilty of count one, manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), and count three, tampering with a witness in violation of General Statutes § 53a-151.

       In support of its finding that Peikes’ testimony was not relevant, the court stated: “We don’t have a situation where the cops are trying to forcibly, one way or the other, by threat, extract a confession from someone who was denied the right to have an attorney there. This is the attorney who was there, and he’s not saying, in fact, that she was—she exercised her right to have an attorney present with her while she was being questioned, and she, obviously, had the right, and he knew it, to stop the questioning at any time she chose to. So, the fact that she didn’t choose to stop the questioning to me is not relevant. . . .
      “Who sat where at the table to me is a collateral matter. Who crumbled paper, who tapped on the desk or didn’t, who stood or sat, those are collateral matters, in my view. They might not always be collateral if the whole purpose of this is to show that the statements were not voluntarily made, but were made under some kind of threat, that would be something different, but I don’t hear that here.”

       During the defendant’s offer of proof the following colloquy in relevant part occurred between the court and the parties’ counsel:
      “[Prosecutor]: Just because you have a right to go into something collateral on [cross-examination] does not mean that you have a right to rebut it if it’s not something that’s otherwise relevant.
      “The Court: I agree. I think that the—I think that only aspects of Peikes’ testimony that would conflict with what Detective Knight testified were some of the—what I might call circumstances of the interview. That is to say, who was sitting where, did Detective Knight or did he not tell the defendant that she could waive her [rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] and come down and talk to him without an attorney. . . .
      “I really think these are, under these circumstances, are collateral matters, and I think the fact that the mood or the tone, as attorney Peikes said, changed toward the end of the interview to become more confrontational and more threatening. I don’t really see the relevance of it. As the state points out, she was represented by an attorney and, presumably, if they didn’t like the mood, they could have just got up and walked out. . . .
      “The reason it has no relevance, among other things, is that if they didn’t like the mood or the tone, they could have, they could have, canceled the interview at that point or if they did like it or didn’t mind it, then what’s relevant about it. . . .
      “I think the point here is this. Knight testified as to certain admissions that the defendant made during the course of this interview. I didn’t hear Peikes contradicting any of those admissions. I didn’t hear Peikes saying that the statements she made were not voluntarily made. So, I really don’t see what the relevance of this testimony is.”

       The court defined the “circumstances of the interview” as “who was sitting where, did Detective Knight or did he not tell the defendant that she could waive her [rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] and come down and talk to him without an attorney.”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

         The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf. . . and in all prosecutions ... to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”


text:
    PISANI CONSTRUCTION, INC. v. ADOLF W. KRUEGER ET AL.
    (AC 21273)
    Schaller, Mihalakos and Hennessy, Js.

      Argued January 22
    officially released February 19, 2002

      Richard Bruno, for the appellant (plaintiff).

      Robert L. Keepnews, for the appellee (defendant Ida J. Krueger).
   Opinion

MIHALAKOS, J.

In this action to foreclose a mechanic’s lien, the plaintiff, Pisani Construction, Inc., appeals from the judgment of the trial court in favor of the defendants Adolf W. Krueger and Ida J. Krueger. The plaintiff claims that the court improperly (1) found that the plaintiff had not substantially performed its obligations under its construction contract with the defendant and (2) permitted the defendant to retain the last payment due to the plaintiff under the contract. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the issues in the plaintiffs appeal. On April 17, 1986, the parties entered into an agreement whereby the plaintiff agreed to erect a metal building on the defendant’s site as an addition to an existing structure. Pursuant to the agreement, the existing structure was to share a common wall with the new building, and the frames and panel heights of the new building were to match with those of the existing structure. After the parties signed the agreement, the defendant made an initial payment of $21,500 to the plaintiff. Construction then commenced in November, 1996, and the plaintiff finished construction in January, 1997.

Shortly before completion, it was determined that the roof line of the new building was, and continues to be, approximately three inches higher than that of the existing structure. The plaintiff offered the defendant no resolution to the problem, but field modified the ridge caps of the buildings to blend the roof lines. The discrepancy had other consequences, however, including misalignment of the gutters and windows of the two buildings, which resulted in an icing problem in the winter. The plaintiff thereafter filed a one count complaint seeking to foreclose on the mechanic’s lien that it had filed against the defendant’s property. The defendant filed an answer and a two count counterclaim, alleging breach of contract and breach of the covenant of good faith and fair dealing.

On the basis of the fact that a key component of the contract, which was that the frames and wall panel heights were supposed to match on the two structures, was not fulfilled, the court found that the plaintiff had not substantially performed under the terms of the agreement and could not prevail in its foreclosure action. Because the plaintiff sought no other relief, the court therefore rendered judgment in the defendant’s favor on the complaint and in the plaintiffs favor on the counterclaim. This appeal followed.

I

The plaintiff first claims that the court’s finding that the plaintiff had not substantially performed its contractual obligations was clearly erroneous. We disagree.

“The determination of [w]hether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine.” (Internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn. App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992). “We have long held that a finding of fact is reversed only when it is clearly erroneous. See, e.g., Poulos v. Pfizer, Inc., 244 Conn. 598, 616, 711 A.2d 688 (1998). A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 717, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001).

One decade ago, our Supreme Court considered an issue not unlike that with which we are faced here, namely, the situation in which the builder seeks to foreclose when the purchasers refuse to pay the remainder of the contract price and the purchasers claim a lack of substantial performance of the contract as a defense. See generally Argentinis v. Gould, 219 Conn. 151, 592 A.2d 378 (1991). In that case, our Supreme Court stated: “Generally, when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner’s duty to pay the balance, has not been satisfied.” Id., 157.

The plaintiff, in support of its claim that the court improperly found that it had not substantially performed its obligations under the contract, claims that the court in its memorandum of decision found that “the building ‘had been completed and ... is being utilized by the defendant.’ ” Mere use of the building is not enough, however, for substantial compliance to be found. “The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract. ’ ’ Miller v. Bourgoin, supra, 28 Conn. App. 496. “[F]actors to be considered include the extent to which the injured party will be deprived of the benefit reasonably expected [and] the likelihood that the performing party will cure his failure in light of the circumstances . . . .” Id.

Because the building to be built by the plaintiff was intended to be added to an existing building and the plaintiff was aware of that intention, the court found that “there is an obvious need to be concerned with the exact height of the completed new building.” Thus, although we might agree with the plaintiff that, in the ordinary case, being a few inches off on the height of the building would not be sufficient to defeat substantial compliance with the contract, in this case the plaintiff knew of the need for exactitude. In addition, any claim by the plaintiff that its failure in that regard was de minimis and did not harm the defendants is defeated by the evidence in the record that, as the court stated in its memorandum of decision, “[t]he misalignment of the gutters resulted in an icing problem for the defendant . . . .” We are unpersuaded, therefore, that the court’s finding that the defendant had not rendered substantial performance was clearly erroneous.

II

The plaintiff also claims that the court improperly permitted the defendant to retain the last payment due to the plaintiff under the contract. The plaintiff argues that the court thereby allowed the defendant to benefit under the contract even though it found that the defendant was not entitled to damages under the counterclaim.

We note that the “benefit” to which the plaintiff refers is the final payment of $14,252, which the defendant did not pay to the plaintiff. The nonpayment was the genesis of this foreclosure action. Our Supreme Court has stated that “when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner’s duty to pay the balance, has not been satisfied.” (Emphasis added.) Argentinis v. Gould, supra, 219 Conn. 157. The court’s refusal to award damages on the defendant’s counterclaim is not relevant to this inquiry. Accordingly, the court correctly refused to allow the plaintiff to foreclose the mechanic’s lien because of the defendant’s failure to pay this amount.

The judgment is affirmed.

In this opinion the other judges concurred.

       The property at issue in this appeal was owned by Adolf W. Krueger and Ida J. Krueger, who were husband and wife. Subsequent to trial, Adolf W. Krueger passed away. Title to the property thus vested fully in Ida J. Krueger upon her husband’s death. See General Statutes § 47-14a, which provides in relevant part: “A conveyance of real estate ... by deed . . . to two or more natural persons ... in such form that the conveyance runs unto the grantees . . . and unto the survivor of them . . . and unto the last survivor’s heirs and assigns . . . creates a joint tenancy in fee simple with right of survivorship added and the tenants . . . shall be known as joint tenants. . . .”
      Because there now is only one defendant, we refer hereafter to Ida J. Krueger as the defendant.

       Although the plaintiffs statement of its claim in its brief posits that the court committed plain error, the plaintiff actually employs an analysis in which it claims that the court’s factual findings were clearly erroneous. Accordingly, we review the plaintiffs claim in terms of whether the court's factual findings were clearly erroneous.


author: SHEA, J.

text:
    STATE OF CONNECTICUT v. RANDALL WASKIEWICZ
    (AC 21437)
    Schaller, Mihalakos and Shea, Js.
    Argued November 28, 2001
    officially released February 19, 2002

      James M. Fox, special public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Terri Sonnemann, deputy assistant state’s attorney, for the appellee (state).
   Opinion

SHEA, J.

The defendant appeals from the judgments of the trial court revoking his probation. The defendant claims that, because he was involuntarily deprived of the opportunity to meet a condition of his probation, the court improperly (1) found that he had violated that condition and (2) revoked his probation. We affirm the judgments of the trial court.

The following facts are necessary for our resolution of this appeal. The defendant was charged in two informations with interfering with an officer in violation of General Statutes § 53a-167a and assault in the third degree in violation of General Statutes § 53a-61. The defendant pleaded guilty to the charges under the Alford doctrine, and the court imposed a total effective sentence of three years incarceration, execution suspended, with three years probation. In addition to the general conditions of probation, the court imposed several special conditions of probation, one of which was a requirement that the defendant attend the Project Green program at Cheney House in Hartford for four months.

The defendant began his residency at Cheney House on September 28, 1999. On January 5, 2000, the defendant was discharged from the program as the result of an incident on the previous day in which he was accused of threatening Perry Johnson, another resident of Cheney House. On May 15,2000, a probation revocation hearing was held pursuant to General Statutes § 53a-32. During the hearing, the program director for Cheney House testified that the defendant had received a number of disciplinary citations during his residency at the facility. Those citations included four instances in which the defendant was verbally abusive to the staff. Under the rules of the program, any one of the defendant’s prior disciplinary citations was sufficient to discharge him from the program. Testifying on his own behalf, the defendant admitted that he had violated a number of rules while at Cheney House. The defendant denied, however, that he had threatened Johnson.

On the basis of the evidence presented at the hearing, the court found that the defendant had violated his probation. Accordingly, the court terminated the defendant’s probation and ordered him to serve two years of his suspended sentence. This appeal followed.

“A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . . Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing. . . .

“A trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling. . . .

“The standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Hill, 256 Conn. 412, 425-26, 773 A.2d 931 (2001).

The evidence presented at the probation hearing was sufficient to support a finding that the defendant violated his probation. The defendant acknowledged that one of the conditions of his probation was that he spend four months at Cheney House and that he was aware of that condition. It was undisputed that the defendant failed to complete the required term due to his discharge from the facility three weeks short of completion.

The defendant, however, attempts to impart significance to the circumstances surrounding his failure to remain at the treatment facility for the requisite time period. Specifically, he bases his claim on the fact that he did not willingly leave the facility, but rather was forced to depart. This claim squarely contradicts the factual findings of the court. Following the probation hearing, the court stated: “As a condition of the probation . . . [the defendant] was to complete the program at Cheney House. He didn’t do that. He didn’t do that by his own doing, by his own behavior. He violated the privileges that were afforded him at Cheney House. He was disruptive. He harassed the employees and threatened other residents. ... It would appear to the court based on the testimony and evidence presented that there was ample reason long before January 5, 2000, to terminate him. Nonetheless, that was done effectively on January 5, [2000]. And he thereby, again, of his own doing, failed to comply with the condition of probation . . . .” (Emphasis added.) Thus, the court made clear that its decision was based on a review of the defendant’s own conduct and actions within his control.

Even if we were to credit the defendant’s assertion that his failure to comply with the terms of his probation was not wilful, we would be obliged to affirm the court’s decision because wilfulness is not an element of the offense of violation of probation. See id., 426. We conclude that the court’s findings that the defendant violated his probation were not clearly erroneous.

We now turn our attention to a consideration of whether the court abused its discretion by revoking the defendant’s probation under the circumstances of this case. “A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence. . . . [T]he ultimate question [in the probation process is] whether the probationer is still a good risk .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Citation omitted; internal quotation marks omitted.) Id., 427.

Substantial evidence was presented at the revocation hearing that would support a finding by the court that the defendant’s rehabilitation at Cheney House was thwarted by his. own behavior and, accordingly, that continued probation was not justified. The program director of Cheney House testified that participants in the Project Green program are advised of the rules and regulations, including that they may be terminated for any major rule violation such as threatening a staff member or another client. The program director also testified that the defendant had violated the program rules on numerous occasions. The nature of those offenses ranged from possessing food in an unauthorized area to verbally abusing and threatening the staff. In addition to the rules infractions for which the defendant was formally cited, the closing summary report of the defendant’s conduct while at Cheney House indicated that the defendant “constantly displayed his anger at staff, acted irrational and was explosive at times.” On the basis of the foregoing, the court found that that the defendant was not making a sincere effort to succeed at Cheney House.

We conclude that the court reasonably exercised its discretion in concluding that the beneficial aspects of probation were not being served and in revoking the defendant’s probation.

The judgments are affirmed.

       General Statutes § 53a-167a (a) provides: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       General Statutes § 53a-61 (a) provides: “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; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical ir\juiy to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant who pleads guilty under the Alford doctrine does not admit guilt, but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” Henry v. Commissioner of Correction, 60 Conn. App. 313, 315 n.1, 759 A.2d 118 (2000).

       Cheney House is a community correctional facility. Project Green is a four to six month intensive treatment program administered at Cheney House that combines substance abuse counseling and treatment with community service projects.

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation .... [U]pon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation ....
      “(b) If such violation is established, the court may ... (4) revoke the sentence of probation .... If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. ... No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       In Ms reply brief, the defendant urges us to apply the due process analysis of Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983). “That holding, however, was grounded on the court’s sensitivity to the treatment of indigents in the criminal justice system and its recogmtion of the due process and equal protection concerns that the indigence of a defendant raises.” State v. Hill, supra, 256 Conn. 421. Because no such concern is present in this case, Bearden is inapplicable. See id.

       A closing summary report is a comprehensive critique of a client’s stay at Cheney House prepared by case managers at the facility.


author: PER CURIAM.

text:
    CHARLES LOGAN v. COMMISSIONER OF CORRECTION
    (AC 21596)
    Landau, Mihalakos and Dupont, Js.
    Submitted on briefs December 13, 2001
    officially released February 19, 2002

      Sebastian O. DeSantis, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, Susan C. Marks, supervisory assistant state’s attorney, and John F. Fahey, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Charles Logan, appeals from the habeas court’s denial of his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that he failed to prove his claim of ineffective assistance of counsel. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of this appeal. The petitioner was charged with the crimes of murder, conspiracy to commit murder, with three counts of assault in the first degree and with violation of probation in connection with events occurring on September 29, 1995. On September 6, 1996, counsel filed eleven motions on the petitioner’s behalf, including a motion to suppress the petitioner’s statement given to the police. On November 6, 1997, the petitioner entered a plea of guilty under the Alford doctrine to murder, conspiracy to commit murder and violation of probation. In accordance with his plea agreement, the petitioner was sentenced to thirty-one years imprisonment. No direct appeal was filed in this case.

On September 25, 2000, the petitioner filed an amended petition for a writ of habeas coipus, alleging ineffective assistance of trial counsel. Following an evidentiary hearing, the court denied the petition and later granted the petition for certification to appeal. This appeal followed.

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. “Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Hylton v. Commissioner of Correction, 67 Conn. App. 471, 472, 786 A.2d 1292 (2001), cert. denied, 259 Conn. 924, 792 A.2d 854 (2002).

A claim of ineffective assistance of counsel has two components. “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992).

To show that counsel’s performance was deficient, the petitioner must prove, under all of the circumstances existing at the time of the trial, that the representation fell below an objective standard of reasonableness, and he must also overcome the presumption that the trial conduct was sound trial strategy. Strickland v. Washington, supra, 466 U.S. 688-89. Because the petitioner pleaded guilty, to satisfy the prejudice prong he must demonstrate that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Constanlopoulos v. Commissioner of Correction, 47 Conn. App. 828, 833-34, 708 A.2d 588, cert. denied, 244 Conn. 927, 711 A.2d 726 (1998), quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

The petitioner claims that he was deprived of the effective assistance of counsel because counsel did not fully inform him of the possibility of acquittal and, therefore, his plea was not knowing, voluntary and intelligent. The habeas court, however, found that counsel “conferred with the petitioner and explained the pros and cons of the case extensively.” In addition, the petitioner claims that had he been fully aware of his chances of success, he would have insisted on going to trial. We are not persuaded.

The court, in its denial of the habeas petition, relied heavily on the credibility of the witnesses. “This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) White v. Commissioner of Correction, 66 Conn. App. 847, 849, 788 A.2d 1261 (2001).

The habeas court concluded, from its review of the evidence, that the petitioner was not deprived of the effective assistance of counsel because his trial counsel effectively evaluated the petitioner’s alibi witnesses, considered the petitioner’s statement to the police, engaged in plea negotiations with the state and discussed the case with the petitioner. Thus, the petitioner cannot successfully challenge the habeas court’s decision to credit counsel’s testimony and to reject his testimony. Accordingly, the habeas court properly concluded that the petitioner failed to satisfy his burden of proving that counsel’s performance fell below an objective standard of reasonableness.

The judgment is affirmed.

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