Bunkley v. Commissioner of Correction

• Decision Date: 03 June 1992
• Docket Number: No. 14305,14305
• Citation: 610 A.2d 598,222 Conn. 444
• Parties: Daryl BUNKLEY v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Supreme Court

Page 598

610 A.2d 598

222 Conn. 444

Daryl BUNKLEY v. COMMISSIONER OF CORRECTION.

No. 14305.

Supreme Court of Connecticut.

Argued Dec. 5, 1991.

Decided June 3, 1992.

Mickey E. Harris, Certified Legal Intern, with whom were Timothy H. Everett and, on the brief, Todd D. Fernow and Sharon Lewis and Gary M. Case, Certified Legal Interns, for appellant (petitioner).

James M. Ralls, Asst. State's Atty., for appellee (respondent).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS, COVELLO, BORDEN and BERDON, JJ. ¹

BORDEN, Associate Justice.

In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice. Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991). Thus, he must establish not only that his counsel's performance was deficient, but that as a result thereof he suffered actual prejudice, namely, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). In this context, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," does not require the petitioner to show that "counsel's deficient conduct more likely than not altered the outcome in the case." Id., 466 U.S. at 693, 104 S.Ct. at 2067. Rather, it merely requires the petitioner to establish "a probability sufficient to undermine confidence in the outcome." Id., at 694, 104 S.Ct. at 2068.

The dispositive issue of this habeas corpus appeal is whether, under the facts of this case, the petitioner suffered "prejudice" within the meaning of Strickland by the failure of his appellate counsel to raise on appeal a claim that the trial court, at his criminal trial, gave an improper instruction to the jury. The petitioner claims that the state's burden of proof was improperly diluted when the jury was told that, in drawing an inference from circumstantial evidence, "the inference asked to be drawn is not only logical and reasonable, but it is more probable than not that the fact to be inferred is true." The petitioner appeals ² from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. He claims that the court improperly rejected his claim of ineffective assistance of appellate counsel ³ because as a matter of law: (1) the failure of his counsel to raise on appeal a claim of dilution of the burden of proof, under this court's decision in State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985), and its progeny, established prejudice; and (2) that same failure also established his counsel's deficient performance. We hold that the petitioner did not suffer prejudice, and, therefore, we affirm the judgment. ⁴

The petitioner's claims arise out of the direct appeal of his conviction of three counts of manslaughter in the second degree in violation of General Statutes § 53a-56(a)(1), and two counts of assault in the third degree in violation of General Statutes § 53a-61(a)(2). ⁵ State v. Bunkley, 202 Conn. 629, 522 A.2d 795 (1987). The petitioner filed this habeas corpus petition challenging the performance of his counsel on that appeal. He claims that his counsel was ineffective in failing to raise the claim that "the trial court [had] wrongfully charged the jury regarding the standard by which the jury can draw inferences," and that he was prejudiced because, had his counsel raised such an argument on appeal, his conviction would have been reversed and a new trial would have been ordered.

The habeas court found the following facts. In August, 1982, the petitioner was arrested and was later charged with three counts of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3), two counts of assault in the first degree in violation of General Statutes § 53a-59(a)(3), and one count of failure to stop when signalled in violation of General Statutes § 14-223(b). ⁶ These charges arose out of the following factual scenario. At approximately noon on August 13, 1982, after attempting to shoplift some clothes from a store on Silver Lane in East Hartford, the petitioner left the store and drove from the store parking lot at a high rate of speed in a Lincoln automobile. Officer Richard Rohner of the East Hartford police department, who was in a police vehicle, saw the petitioner's car speed through the parking lot onto Forbes Street. Rohner followed the car and signalled with both his siren and flashing light for the petitioner to stop, but he failed to do so, went through a red light and turned west onto Silver Lane. Silver Lane is a four lane highway that runs generally east and west. At this time, traffic was heavy in both directions.

Rohner pursued the petitioner's car and radioed for assistance. Officer Patricia Topliff responded to Rohner's call and joined the chase on Silver Lane. Rohner pursued the petitioner at speeds reaching sixty miles per hour. During the chase, the petitioner passed another vehicle on the right, cut over to the left and struck that vehicle. The petitioner then swerved back and forth in the westbound lanes, went off the road, and crossed the center line into the eastbound lane and straddled the center line, missing another vehicle by inches.

The petitioner's car then crossed over the center line into the eastbound lane and struck head on a car driven by Eleanor Mitchell, killing Mitchell and her two daughters, and seriously injuring her son and his friend, who were passengers in the Mitchell vehicle. The petitioner admitted that at the moment of impact he was driving the Lincoln at approximately sixty to seventy miles per hour.

At his trial in May, 1984, the petitioner conceded that he was guilty of failure to stop when signalled and of the lesser included offenses of misconduct with a motor vehicle in violation of General Statutes § 53a-57, or negligent homicide with a motor vehicle in violation of General Statutes § 14-222a, ⁷ but argued that he was not guilty of the manslaughter and assault charges. ⁸ In its charge to the jury on circumstantial evidence, the trial court included the following language, which forms the crux of the petitioner's claim in this case: "This rule [of circumstantial evidence] involves the offering of evidence of facts from which you are asked to infer the existence of another fact, or set of facts. Such an inference may be made, provided two elements in the application of this rule are satisfied: first, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt, and second, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true." (Emphasis added.) The jury found the petitioner guilty of the lesser included offenses of manslaughter in the second degree and assault in the third degree. ⁹

In his direct appeal from the ensuing judgment of conviction, the petitioner was represented by attorney Jon Schoenhorn, ¹⁰ who was assisted on the brief by attorney Kathleen Murrett. Schoenhorn was responsible for the handling of the appeal and wrote the brief, except for two issues written by Murrett and edited by Schoenhorn. Although they raised seven claims of trial court error, the petitioner's appellate counsel did not invoke State v. Rodgers, supra, to challenge the trial court's instruction on circumstantial evidence. See State v. Bunkley, supra, 202 Conn. at 632, 522 A.2d 795. It is undisputed that State v. Rodgers, supra, was decided on December 17, 1985; see id.; and that the petitioner's direct appeal was argued in this court on November 4, 1986. State v. Bunkley, supra. This court affirmed the petitioner's conviction on the direct appeal. Id.

Having found these facts, the habeas court in this case focused on the prejudice requirement of Strickland. The habeas court read that requirement to mean that, where a habeas petitioner challenges the effectiveness of his appellate counsel, he must establish that, but for appellate counsel's unprofessional errors, the result of his trial would have been different. Thus, considering that the petitioner was required to establish "by a reasonable probability, that the jury would have acquitted him but for the [unchallenged] instruction," the habeas court concluded that he had not met that requirement because "[t]he evidence submitted indicates otherwise." Accordingly, the habeas court dismissed the petition. This appeal followed.

I

We first consider the petitioner's claim that the habeas court, when considering the prejudice prong of Strickland, improperly focused on the probable result of the petitioner's trial rather than the probable result of his appeal. The petitioner argues that, under Strickland, prejudice resulting from the deficient performance of appellate counsel means that there is a reasonable probability that, but for that performance, the result of the appeal would have been different--the appeal would have resulted in a reversal of the conviction and a new trial.

The petitioner follows this argument with the contention that, gauged by this standard, he has established prejudice because on his direct appeal this court "would have reversed his conviction on all counts if the Court had heard a claim under the doctrine of State v. Rodgers, supra." ¹¹ He points out that in both his case and Rodgers the primary dispute at trial involved the mental state of the accused, that in both cases the resolution of that dispute depended on the jury's assessment of circumstantial evidence, and that the trial court in his case gave a charge on circumstantial evidence identical to the charge held to be reversible...