State v. Gregory

• Decision Date: 16 August 1983
• Citation: 191 Conn. 142,463 A.2d 609
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kenneth GREGORY.

Page 609

463 A.2d 609

191 Conn. 142

STATE of Connecticut v. Kenneth GREGORY.

Supreme Court of Connecticut.

Argued June 7, 1983.

Decided Aug. 16, 1983.

Timothy C. Moynahan, Waterbury, with whom, on the brief, was Denise Derby, New Haven, for appellant (defendant).

Paul E. Murray, Asst. State's Atty., with whom, on the brief, were Francis M. McDonald, State's Atty., and Catherine J. Capuano, Sp. Asst. State's Atty., for appellee (State).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, SHEA and GRILLO, JJ.

GRILLO, Associate Justice.

The defendant, Kenneth Gregory, was charged with assault in the first degree, in violation of General Statutes § 53a-59. He was tried before a jury, found guilty and sentenced on March 26, 1982 to a term of five years at the Somers Correctional Institution. During the trial, the defendant was represented by the public defender's office, which carried out the investigation and preparations for the defense. Six days after sentencing, the defendant retained private counsel to handle this appeal, which was timely filed on April 6, 1982. After reviewing the trial transcripts, counsel filed a motion for a new trial pursuant to Practice Book § 903, claiming, inter alia, ineffective assistance of counsel. This motion was denied on August 19, 1983.

The sole question presented to use on direct appeal ¹ is whether the defendant was denied his constitutional right to effective assistance of counsel under the sixth and fourteenth amendments to the United States constitution and under article first, § 8 of the Connecticut constitution. The defendant alleges that trial counsel did not prepare and present a meaningful defense in that he failed to conduct an adequate pretrial investigation, to interview and procure essential witnesses, to interview or effectively cross-examine the state's witnesses and to object to the introduction of inadmissible evidence.

The right to counsel is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); State v. Mason, 186 Conn. 574, 577, 442 A.2d 1335 (1982). This right is equally applicable whether defense counsel is privately-retained, or, as in the present case, court-appointed. Id. " 'Defense counsel's performance must be reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. The defendant's burden is to show that his counsel's conduct fell below that standard and that the lack of competency contributed to the conviction.' " State v. Scielzo, 190 Conn. 191, 206, 460 A.2d 951 (1983); State v. Chairamonte, 189 Conn. 61, 63, 454 A.2d 272 (1983).

An examination of the record in the present case illustrates the limited scope of the review, on direct appeal, of the adequacy of trial counsel. The transcript of the proceedings in the trial court ² allows us to examine the actions of defense counsel but not the underlying reasons for his actions. The defendant has built a pyramid of claimed omissions and commissions which crumbles to the ground. Some of the asserted trial and pretrial errors are completely devoid of a supportive foundation in the trial record herein; for example, the defendant alleges that counsel failed to visit the scene, to employ experts, to perform a pre-trial investigation and to obtain police reports. ³ The defendant also points to defense counsel's failure to cross-examine a particular witness at trial; he contends that a reasonably competent counsel would have chosen not to forego this cross-examination of one of the state's witnesses. Yet, we can imagine numerous situations in which the decision not to cross-examine would be entirely consonant with the actions of competent counsel. "Without a hearing in which the reasons for counsel's decision may be elicited, any decision of ours ... would be entirely speculative." State v. Chairamonte, supra, 64, 454 A.2d 272. "This court has emphasized in other cases that a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal." (Footnote omitted.) State v. Mason, supra, 186 Conn. 578-79, 442 A.2d 1335; State v. Barber, 173 Conn. 153, 154-55, 376 A.2d 1108 (1977). See also State v. Scielzo, supra; State v. Orsini, 187 Conn. 264, 280, 445 A.2d 887, cert. denied, --- U.S. ----, 103 S.Ct. 136, 74 L.Ed.2d 116 (1982).

Our review of the alleged deficiencies of trial counsel in this case reveals no glaring misconduct which might warrant a departure from our usual practice. Accordingly, we find that the inadequate record prevents us from finding error on this claim. ⁴

There is no error.

In this opinion the other Judges concurred.

1 On September 8, 1982, while this appeal was pending, counsel for the defendant instituted a habeas corpus action in state court claiming illegal imprisonment in that he was denied his right to effective assistance of counsel as guaranteed by the United States constitution and the Connecticut constitution. The petition was dismissed on January 26, 1983 after a full evidentiary hearing. The court found that the defendant "failed to show that counsel's conduct failed to meet the required standard of competence, and that any lack of competence contributed to his conviction." On February 10, 1983, the court, Kremski,...