Gold v. Warden, State Prison
| Decision Date | 09 June 1992 |
| Docket Number | No. 14296,14296 |
| Citation | 610 A.2d 1153,222 Conn. 312 |
| Court | Connecticut Supreme Court |
| Parties | Murray R. GOLD v. WARDEN, STATE PRISON. |
James A. Killen, Asst. State's Atty., with whom, on the brief, were John Connelly, State's Atty., and Marcia Smith, Asst. State's Atty., for appellant (respondent).
Louis Nizer, pro hac vice, with whom were William Kunstler, pro hac vice, Paul Martinson, New York City, pro hac vice, Victor M. Ferrante, Bridgeport, and, on the brief, Timothy C. Moynahan, Waterbury, for appellee (petitioner).
Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and BERDON, JJ.
This is an appeal by the respondent warden from the granting of a writ of habeas corpus and a new trial to the petitioner, Murray R. Gold.
On July 24, 1986, at the conclusion of his fourth trial, the petitioner was found guilty by a jury of two counts of the crime of murder. 1 Subsequently, on August 29, 1986, he was sentenced by the trial court to two concurrent terms of twenty-five years to life imprisonment. The petitioner refused to appeal. The charges for which the petitioner was convicted arose from the stabbing deaths of his former father-in-law, Irving Pasternak, and his former mother-in-law, Rhoda Pasternak, in their Waterbury home in 1974. 2
On March 11, 1991, after a hearing the habeas court concluded, in a written memorandum of decision, that the petitioner had not been legally competent in 1986, when he was tried for the fourth time for the Pasternak murders. 3 The habeas court also concluded that the petitioner had not been afforded effective assistance of counsel. The court reached the latter conclusion apparently because of its finding that defense counsel had failed to take sufficient care to monitor and evaluate the petitioner's mental health during the course of the trial. Because it found that the petitioner was incompetent at the time of his 1986 trial and that he had not had effective assistance of counsel, the habeas court granted the petitioner's writ and ordered a new trial. Whether the habeas court was correct on either stated ground depends upon whether it reached a proper conclusion that the petitioner was incompetent at the time that he was tried. 4
The respondent warden claims that the habeas court improperly: (1) concluded that the petitioner had established, under the proper standard of collateral review, that he was incompetent during his trial; (2) concluded that the petitioner had not been provided effective assistance of counsel; (3) refused to allow the judge who had presided at the petitioner's trial in 1986 to testify concerning his observations of the petitioner's demeanor; and (4) ordered a competency evaluation under General Statutes § 54-56d to determine whether the petitioner was competent to stand trial for the fifth time. We agree with the respondent's third claim and conclude that under the circumstances of this case the habeas court improperly excluded the trial judge's testimony. Because that conclusion requires that we reverse the decision of the habeas court and order a new hearing, it is not necessary that we address the respondent's other claims. 5
The following sequence of events is relevant. After the petitioner's third trial was aborted on January 22, 1985, James R. Merikangas, a psychiatrist and neurologist, examined the petitioner and informed the court by letter dated February 4, 1985, that the petitioner was incompetent to stand trial at that time. Thereafter, on Merikangas' recommendation, the petitioner was sent to Whiting Forensic Institute for treatment, observation and evaluation. The petitioner remained at Whiting from February, 1985, until November 8, 1985. In February, May, August and October, 1985, he was evaluated for competency by a psychiatric team consisting of a psychiatrist, Earle L. Biassey, and a clinical psychologist, and a social worker. After the October, 1985 evaluation, the petitioner was determined by the psychiatric team to be competent to stand trial. Subsequent to being found competent, the petitioner was transferred from Whiting to the New Haven correctional center. On May 20, 1986, just prior to the commencement of jury selection for his fourth trial, at the request of Judge William J. Lavery, who was to preside at the trial, the petitioner was reevaluated by Merikangas and was found to be competent at that time. 6 Thereafter, the petitioner was tried, convicted and sentenced.
At the habeas corpus hearing the petitioner called as a witness Walter Borden, a psychiatrist, who had examined the petitioner for approximately two hours on December 21, 1990, more than four years after the petitioner was tried and sentenced in 1986. Based on that examination, his review of the petitioner's medical records, and the court records from the petitioner's third and fourth trials, Borden's opinion was that the petitioner had not been competent during his fourth trial.
Also called by the petitioner as a witness at the habeas hearing was Attorney John Williams. Williams had represented the petitioner at his third trial until, midway through the trial, the petitioner had discharged him and a mistrial had been declared. Williams testified that one day, during the petitioner's fourth trial, when he had happened to be in Waterbury on other business, he had passed through the courtroom where the petitioner was being tried and had observed the petitioner and his attorney. He stated that at that time he had had an opportunity to view the petitioner for a few minutes while court was in session, the jury was present, and evidence was being taken. In its memorandum of decision the habeas court stated that Williams testified: " " 7
Further, at the habeas hearing, a transcript from the petitioner's fourth trial that Borden referred to in forming his opinion was admitted. That transcript evidenced the following colloquy in the courtroom on July 8, 1986, while defense counsel was conducting a voir dire examination of an expert witness outside the presence of the jury.
The habeas court, in its memorandum of decision, appears to have placed considerable weight not only on Borden's expert testimony, but also on Williams' recitation of what he had seen during his brief observation of the petitioner, and Scanlon's viewing of the petitioner when the petitioner's eyes were closed. Lay testimony concerning the petitioner's demeanor during his trial, therefore, seems to have played an influential role in the habeas court's conclusion that the petitioner was incompetent when he was tried in 1986. That is readily understandable. Borden's examination, as previously noted, took place more than four years after the trial. 9 See Drope v. Missouri, 420 U.S. 162, 183, 95 S.Ct. 896, 909, 43 L.Ed.2d 103 (1975) (); Pate v. Robinson, 383 U.S. 375, 387, 86 S.Ct. 836, 843, 15 L.Ed.2d 815 (1966) (); State v. Manfredi, 213 Conn. 500, 511, 569 A.2d 506, cert. denied, --- U.S. ----, 111 S.Ct. 62, 112 L.Ed.2d 37 (1990) (). Something, therefore, was required to link the findings of Borden's 1990 examination with the petitioner's mental condition at the time of his trial in 1986. A significant portion of that linkage was clearly forged for the habeas court by Williams' testimony concerning his observations and Scanlon's colloquy with the trial court.
To counter Williams' testimony and Scanlon's comments, the respondent sought to call, as a witness, Judge Lavery, the presiding judge at the petitioner's fourth trial. 10 The respondent represented to the habeas court that he desired to call Judge Lavery only to testify as to his observations of the petitioner's demeanor during the course of the trial. The respondent assured the habeas court that he would confine his questions of Judge Lavery to his observations and would make no effort to elicit testimony concerning the judge's decision-making process. The petitioner filed a motion in limine, moving that Judge Lavery be precluded from testifying. The habeas court granted the petitioner's motion. In making its ruling the habeas court stated: "The court concludes that although the state may call the judge and he will testify as to what he directly observed in the courtroom, he would then become subject to cross-examination concerning his ability to observe, how he arrived at certain conclusions from his observations, and, therefore his mental process would be delved into upon cross-examination." 11
We conclude that under the circumstances of this case the habeas court abused its...
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