Commissioner of Correction v. Rodriquez, 14260

• Decision Date: 04 June 1992
• Docket Number: No. 14260,14260
• Citation: 610 A.2d 631,222 Conn. 469
• Court: Connecticut Supreme Court
• Parties: COMMISSIONER OF CORRECTION v. Andres RODRIQUEZ.

Page 631

610 A.2d 631

222 Conn. 469

COMMISSIONER OF CORRECTION v. Andres RODRIQUEZ.

No. 14260.

Supreme Court of Connecticut.

Argued Feb. 13, 1992.

Decided June 4, 1992.

Jacqueline J. Footman, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Christopher Alexy, Asst. State's Atty., for plaintiff in error.

Karen A. Goodrow, New Haven, for defendant in error.

Before PETERS, C.J., and SHEA, GLASS, COVELLO and SANTANIELLO, JJ.

COVELLO, Associate Justice.

This is a writ of error from a judgment of the Superior Court granting the defendant in error's (petitioner) petition for a writ of habeas corpus. In 1983, a jury found the petitioner, Andres Rodriquez, guilty of arson in the first degree in violation of General Statutes §§ 53a-111 and 53a-8. ¹ We upheld the conviction on appeal. State v. Rodriquez, 200 Conn. 685, 513 A.2d 71 (1986). The petitioner thereafter sought a writ of habeas corpus. The habeas court granted the petition and ordered a new trial concluding that the petitioner had been denied a fundamental constitutional right because his attorney had not fully informed him of his right to testify. After the habeas court denied the state's petition for certification to appeal, the state filed this writ of error.

The issues on appeal are: (1) whether the habeas court erred in viewing the petitioner's claim as one that constituted a violation of the right to due process in accordance with the fifth and fourteenth amendments to the United States constitution; and (2) whether the habeas court applied the wrong legal standard in reviewing the petitioner's claim that he had been denied effective assistance of counsel pursuant to the sixth amendment to the United States constitution. ² We conclude that the habeas court should not have considered the petitioner's claim of a violation of due process separately from his ineffective assistance of counsel claim. Further, it failed to conduct the legal analysis necessary for evaluating the petitioner's claim of ineffective assistance of counsel. We, therefore, reverse and remand the matter for a new hearing.

Evidence adduced at the petitioner's criminal trial as reported in State v. Rodriquez, supra, at 688-93, 513 A.2d 71, served to establish the following facts. On March 21, 1982, the Agron Superette, a neighborhood grocery store owned by the petitioner and his wife, was firebombed. Circumstantial evidence tended to show that the petitioner had intentionally placed an open container of gasoline in the store in order to assist an unidentified man in the firebombing of the market with a "Molotov cocktail," in this instance, a Coca-Cola bottle stuffed with a burning rag. The petitioner and his employee, Francisco Lopez, were the only persons who had keys to the store. Lopez, who was not under suspicion, testified that the gasoline container had not been in the store when he had secured the shop for the night. Police officials testified that the petitioner, who had arrived shortly after the incident, had seemed unusually calm and had been able to identify the smoking "Molotov cocktail" as a Coca-Cola bottle from a distance of fifty feet. At the time he made this identification, no one had told the petitioner the kind of bottle that had been involved. Moreover, the police testified that the petitioner had been standing too far away to identify it visually. There was also evidence that the owner of the building had begun summary process proceedings to evict the petitioner, that the eviction hearing had been scheduled for the day after the firebombing, that the petitioner had recently attempted to increase his fire insurance on the store, and that he had wanted a beer permit for his other store but could not obtain one as long as the Agron Superette had a similar permit.

In his habeas proceeding, the petitioner claimed that he had been denied effective assistance of counsel because his trial counsel had not fully informed him that he had a right to testify, that it was his right to choose whether to testify, and that he would have testified if he had known of such a right. The petitioner also claimed that his right to due process had been violated because he had not been informed of his right to testify on his own behalf. ³ At the habeas trial, in addition to his own testimony, the petitioner offered the testimony of two witnesses in addition to his own: Earl Williams, his trial counsel, and Michael Devlin, who testified as an expert in criminal law.

Williams testified that he had had a professional relationship with the petitioner in civil matters for approximately five years prior to his representation of him in connection with the present case. He had decided that he did not want the petitioner to take the stand at his criminal trial for several strategic reasons: (1) the state was aware that there had been fires and subsequent insurance claims at other properties owned by the petitioner. Williams thought that the state might have been prepared to cross-examine the petitioner on this matter; (2) an eyewitness who knew the petitioner had seen someone other than the petitioner throw something at the store shortly before the fire; (3) he believed that the petitioner had a strong case and that he should let the state attempt to prove its heavy burden; and (4) he did not want to be surprised by anything that might be elicited from the petitioner should he take the stand. Williams further testified that, although he had not explained to the petitioner that he could testify if he so desired, he had told him that he did not want him to testify. ⁴ The petitioner never questioned Williams' advice on that matter and never asked to take the stand. Williams opined that the petitioner must have relied upon his judgment since he never took the stand.

The petitioner testified that Williams had never told him that it was his right to testify if he so desired and also had never told him that he should not testify. He also maintained that, at the time of his criminal trial, he had not been aware of the right to testify and that, if he had been aware of that right, he would have elected to testify. Devlin, the petitioner's expert witness on criminal law, testified that Williams' representation of the petitioner had been incompetent in that he had only advised the petitioner not to testify and had not told him that the decision whether to testify was ultimately the petitioner's.

The habeas court, in a decision from the bench, granted the petitioner's application for a writ of habeas corpus and ordered a new trial. The habeas court, without specifying upon which ground it was granting the writ, stated: "I find that the petitioner has been denied a fundamental constitutional right. I do find that he was not fully informed that he had a right to take the stand in his own defense, and I find that, as a result, he has been denied his right under [s] 54-84[a] ⁵ of the Connecticut General Statutes.... I have to frankly say that Mr. Williams had the best interests of Mr. Rodriquez at heart; however, he just did not really let Mr. Rodriquez make the decision whether or not to testify in the final analysis."

On the day following the decision on the merits of the petition, the habeas court conducted a bond hearing. The state requested clarification of the court's ruling. The habeas court stated that it had based its ruling on the second count, i.e., due process, because Williams had "failed to adequately explain and give [the petitioner] the option of testifying or not testifying. He's been denied a fundamental constitutional right." ⁶ Approximately two weeks later, at a hearing on the state's request for certification to appeal, the habeas court stated that the petitioner had "ineffective assistance because I found that his lawyer really didn't allow him or give him a fair opportunity to testify or not [to] testify.... His lawyer directed him not to testify, essentially." After renewed attempts by both parties to have the ruling clarified, the habeas court concluded that the due process and ineffective assistance of counsel claims were essentially the same in this case and declined to clarify its ruling further. ⁷

I

The state first claims that the habeas court improperly concluded that since Williams had failed to inform the petitioner of his right to testify, there had been a violation of his constitutional right to due process. The state argues that because the habeas court failed to perform the legal analysis necessary to establish a denial of effective assistance of counsel, it lacked the proper foundation for a conclusion that there had been a violation of the petitioner's right to due process. We agree.

In a situation such as this, where the petitioner's claim of a violation of due process is so inextricably bound up in the issue of the effectiveness of his trial counsel, we conclude that a separate claim of a violation of the right to due process is not required. If counsel has been ineffective in violation of the mandates of the sixth amendment to the United States constitution, then it follows, a fortiori, that the accused has been deprived of the right to a fair trial and to the concomitant right to due process. "Because it is primarily the responsibility of defense counsel to advise the defendant of his right to testify and thereby to ensure that the right is protected, we believe the appropriate vehicle for claims that the defendant's right to testify was violated by defense counsel is [through] a claim of ineffective assistance of counsel [pursuant to] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.1992) "[C]ases in which courts have found a denial of a defendant's right to testify almost invariably involve ineffective assistance of counsel or impermissible actions by the trial judge." United States v. Bernloehr, 833 F.2d 749, 751...