State v. Connelly

• Decision Date: 26 August 1997
• Docket Number: No. 14639,14639
• Citation: 700 A.2d 694,46 Conn.App. 486
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. William CONNELLY.

Page 694

700 A.2d 694

46 Conn.App. 486

STATE of Connecticut v. William CONNELLY.

No. 14639.

Appellate Court of Connecticut.

Argued March 4, 1997.

Decided Aug. 26, 1997.

William Connelly, pro se, the appellant (defendant).

Rita M. Shair, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Scott J. Murphy, Supervisory Assistant State's Attorney, for appellee (State).

Before DUPONT, C.J., and LANDAU and HEALEY, JJ.

DUPONT, Chief Judge.

The defendant was convicted, after a jury trial in January, 1995, of two counts of kidnapping in the second degree in violation of General Statutes § 53a-94, ¹ and two counts of assault in the second degree in violation of General Statutes § 53a-60. ² The defendant appeals from the trial court's judgment, claiming that the trial court improperly (1) charged the jury regarding the distinction between kidnapping and unlawful restraint, (2) dismissed for cause a venireperson in violation of the defendant's right to self-representation, (3) excluded as hearsay an allegedly exculpatory letter written by a material witness, (4) applied an excessive sentence, and (5) violated the defendant's right to effective representation and due process when it required the defendant to disclose his defenses prematurely and failed to charge on the defenses. The defendant also claims (6) that his standby counsel failed to comply with Practice Book § 964, (7) that the state withheld or destroyed potentially exculpatory evidence, and (8) that the statutory definitions of "restrain" and "abduct" are unconstitutionally vague.

The jury could have reasonably found the following facts. On November 10, 1989, the defendant and his brother Brian resided at their mother's house in the town of Newington. Their mother, at that time, was hospitalized. The defendant's other brothers, Timothy and Edward, and sister, Maureen Briggs, thought that their mother should be placed in a nursing home. The defendant disagreed.

That morning, Edward and Timothy arrived at their mother's house to clean out a room that Timothy had been using as an office. While they were moving the room's contents, the mail arrived, and Edward brought it in. The defendant accused Edward of taking mail that did not belong to him because the defendant believed that an envelope containing a large check had arrived for Brian. Edward and Timothy were in a bedroom. From the hallway, the defendant argued with them about the mail. He then pulled a gun from his clothing and fired a shot, which struck no one and lodged in the back wall of the bedroom. The defendant entered the bedroom, locked the door, and ordered Edward and Timothy to get down on the floor. He asked Brian, who was in the hallway, to telephone the Federal Bureau of Investigation (FBI). When Brian refused, the defendant tried to place the call himself but instead reached the Newington police department.

Newington police officer Michael Tkac responded to the telephone call. The defendant told Tkac that he was holding Edward and Timothy for mail fraud, and that he would release them only to the FBI. Other officers, including a special weapons and tactics police team, arrived at the house. The defendant demanded that the FBI, Attorney Edward Daly, and a court reporter arrive by 1 p.m. or else he would shoot Edward. At 12:50 p.m., the FBI had not arrived, and the defendant shot Edward in the wrist, breaking a bone. The defendant set another deadline of 3 p.m., threatening to shoot Timothy if the persons he requested had not arrived. The defendant asked for certain documents from his briefcase, which were passed under the door to him. At approximately 2:50 p.m., the defendant shot Timothy in the hand, injuring bones and ligaments.

Prior to the trial that is the subject of this appeal, on April 20, 1990, in a trial to the court, Dunn, J., the defendant was found not guilty by reason of insanity of the same two counts of kidnapping in the second degree and two counts of assault in the second degree arising out of the same incident. He was then committed to the custody of the commissioner of mental health; see General Statutes §§ 53a-13, 17a-580 through 17a-603; for a period of ten years, subject to periodic reviews by the psychiatric security review board. The defendant did not appeal from either his acquittal or his commitment to the custody of the commissioner of mental health. ³

In January, 1994, the defendant petitioned for a writ of habeas corpus seeking (1) a vacation of the judgment of not guilty by reason of insanity and a remand of his case to the trial court for further proceedings, (2) a release from the "custody of the department of mental health" to the "custody of the department of correction," and (3) such other and further equitable relief "as law and justice may require." ⁴ The defendant claimed in his habeas petition that his confinement was illegal because, among other things, he was deprived of the effective assistance of counsel in that a "not guilty by reason of insanity" defense was pursued without his knowing and voluntary consent, no plea negotiations occurred before pursuing the defense, he was not informed of his right to a trial without the use of an insanity defense, and he was not canvassed regarding the waiver of his right to a jury trial. ⁵ The record in the habeas proceeding reveals that his then attorney cautioned him that if he prevailed on his habeas petition, he would be exposed to incarceration by the commissioner of correction. The habeas court, Higgins, J., on August 16, 1994, pursuant to General Statutes § 52-493, ⁶ ordered that the defendant's judgment of acquittal by reason of insanity be vacated and issued a writ of habeas corpus. The court further ordered that if the state's attorney did not elect to proceed "anew" with criminal charges within forty days, the defendant would be released from custody. In affording the defendant relief, the habeas court relied on the defendant's claim that his constitutional right to a trial by jury was violated because he had not waived his right to a jury trial on the record. ⁷

In January, 1995, the defendant was retried on the same charges of two counts of kidnapping in the second degree and two counts of assault in the second degree, of which a court had previously found him not guilty by reason of insanity. This appeal concerns the defendant's retrial.

I

In view of this background, our first area of inquiry is whether the habeas court properly entertained a habeas petition that did not follow a criminal conviction but, rather, followed an acquittal of criminal charges by reason of insanity, and whether the habeas court had the power to afford the defendant the relief of a new trial, and, if so, whether the defendant, by seeking such relief, had waived his constitutional right to be free of double jeopardy. Neither the state nor the defendant raises any issue in this appeal as to these questions. ⁸

A

During the course of the habeas corpus proceeding, the state moved to dismiss the petition for lack of subject matter jurisdiction, claiming that the defendant was not held pursuant to a mittimus following a criminal conviction, criminal jurisdiction having been relinquished. The habeas court, relying on Miller v. Angliker, 4 Conn.App. 406, 494 A.2d 1226, cert. denied, 197 Conn. 809, 499 A.2d 59 (1985), denied the motion.

In Miller, the petitioner appealed from a habeas court's denial of a petition for a writ of habeas corpus, in which the petitioner claimed that he had received ineffective assistance of counsel and that the state had withheld exculpatory material from him. Id., at 414, 494 A.2d 1226. The petitioner claimed that he was not told of his right to appeal from a finding of not guilty by reason of insanity. Before reaching the merits of the allegations of the petition, the court, in a footnote, discussed whether the petitioner could have maintained a direct appeal from such a finding. The court did so in order to determine if the petitioner had bypassed his right to a direct appeal pursuant to the deliberate bypass rule as articulated in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). ⁹ Miller v. Angliker, supra, at 415 n. 3, 494 A.2d 1226.

The court in Miller did not decide whether the petitioner could have directly appealed from his judgment of acquittal by reason of insanity but, instead, concluded that he was sufficiently "aggrieved" by his commitment to the commissioner of mental health so as to make his habeas petition viable. Id. The court reasoned that the petitioner was aggrieved because he would not have been confined to a mental institution if he had been tried by a jury and the jury had found him not guilty. Id. Although the court did not decide whether the defendant had a direct appeal from the finding of not guilty by reason of insanity, there is some authority, although scant, for a direct appeal from an acquittal by reason of insanity. State v. Marzbanian, 2 Conn.Cir. 312, 198 A.2d 721 (1963); see Jacobs v. Carmel, 869 P.2d 207 (Colo.1994).

The petitioner in Miller subsequently filed a petition for a writ of habeas corpus in the federal District Court, pursuing his claim of ineffective assistance of counsel and the withholding of exculpatory material from him. The Second Circuit Court of Appeals in Miller v. Angliker, 848 F.2d 1312, 1319-24 (2d Cir.1988), reversed the District Court's denial of the petition and held that the petition should have been granted on the basis of the petitioner's claim that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), required that the state provide him with any exculpatory material in its possession. The court held that Brady applied to proceedings in which a defendant has pleaded not guilty by reason of insanity. Miller v. Angliker, supra, at 1322. The court did not, however, discuss whether the petitioner had deliberately bypassed a direct appeal ...