Harris v. Commissioner of Correction, 12842
| Decision Date | 06 February 1996 |
| Docket Number | No. 12842,12842 |
| Citation | 40 Conn.App. 250,671 A.2d 359 |
| Court | Connecticut Court of Appeals |
| Parties | Leroy HARRIS v. COMMISSIONER OF CORRECTION. |
Christopher C. Sheehan, Deputy Assistant Public Defender, with whom, on the brief, was Paula Mangini Montonye, Assistant Public Defender, for appellant (petitioner).
Nancy L. Gillespie, Deputy Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Christopher Alexy, Assistant State's Attorney, for appellee (respondent).
Before EDWARD Y. O'CONNELL, LANDAU and FRANCIS X. HENNESSY, JJ.
The petitioner appeals from the judgment of dismissal of his petition for a writ of habeas corpus. He claims that the habeas court improperly (1) denied his motion for a new habeas hearing, (2) denied his petition for certification to appeal the denial of his motion for a new habeas hearing, and (3) dismissed his petition for a writ of habeas corpus. We affirm the judgment of the trial court. 1993 WL 328635.
The petitioner was convicted of three counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4) and one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). The convictions were affirmed by this court in State v. Harris, 22 Conn.App. 329, 577 A.2d 1077 (1990). He brought a writ of habeas corpus claiming ineffective assistance of both trial and appellate counsel. Following a hearing, the habeas court dismissed the petition and subsequently granted the petitioner permission to appeal the dismissal.
The petitioner appealed to this court. In response to the petitioner's request for a transcript of his habeas hearing, the court reporter confirmed that the reporter's notes and the computer diskette of the hearing had been lost. The petitioner then filed a motion for a new trial or reconstruction of the habeas hearing record, 1 which was denied by the trial court. This court then granted a motion for review and ordered the habeas court to reconstruct the record. Additional facts are included in our analysis of each claim.
The petitioner's first two claims pertain to the reconstructed record that replaced the unavailable transcript. The petitioner claims that the habeas court improperly (1) denied his motion for a new trial because reconstruction is never proper in a habeas case, and (2) refused to certify for appeal the denial of his motion for a new trial.
The petitioner argues that the unique nature of a habeas corpus proceeding excludes reconstruction as a possible remedy when reporter's notes are lost. The petitioner's argument that the only proper remedy is a new habeas hearing ignores the peculiar procedural background of this case.
When the petitioner learned that the notes and diskette had been lost, he filed a bifurcated motion in which he asked the habeas court either (1) to grant a new trial or, (2) to hold a hearing to reconstruct the record. When this motion was denied in toto, the petitioner sought review from this court, asking us to reverse the habeas court and order it either to grant a new trial or to conduct a hearing to reconstruct the record.
We considered the motion for review, dismissed the request for a new trial, granted the alternate form of relief expressly sought by the petitioner, ordering the habeas court to conduct a reconstruction hearing. On remand, a habeas court is limited to the specific direction of this court. See Jackson v. Commissioner of Correction, 227 Conn. 124, 129 n. 6, 629 A.2d 413 (1993). In this case, we directed the habeas court only to hold a reconstruction hearing and it complied with our remand.
Following the reconstruction hearing, the petitioner filed an amended motion for a new habeas hearing. The habeas court denied this motion and also denied certification to appeal its denial. In the petitioner's amended motion for a new habeas hearing, he essentially complained that the habeas court should not have carried out our remand. Because this court had already dismissed the petitioner's request for a new habeas hearing, it would have been illogical for the habeas court to certify that issue back to us. Stated simply, the petitioner received what he requested and now complains that it was unlawful for it to be granted to him. Accordingly, under the circumstances of this case, the habeas court properly denied certification to appeal the denial of his motion for a new trial. Thus, we do not reach the petitioner's contention that reconstruction of a habeas corpus proceeding can never be proper.
Because we have concluded that reconstruction is a possible remedy for lost habeas notes, we turn now to whether the reconstructed record and its exhibits are adequate for the purpose of appealing the dismissal of the habeas corpus petition. The original habeas hearing lasted less than three hours and consisted of the testimony of only two witnesses--the petitioner and his counsel from the underlying criminal case. The habeas court had taken extensive and detailed notes during the hearing. These notes were made exhibits in the reconstructed hearing, as were the notes of both counsel. Additionally, counsel agreed to a written stipulation of facts.
When the transcript is unavailable, substitutes such as "[a] statement of facts agreed to by both sides, [or] a full narrative statement based perhaps on the trial judge's minutes taken during [the hearing]" are acceptable "if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise." Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 779, 9 L.Ed.2d 899 (1963). Although the state must ensure that the trial record is adequate for effective appellate review of any claims raised by an indigent defendant, it is not required to furnish him with a verbatim transcript of the underlying trial. State v. Williams, 227 Conn. 101, 105, 629 A.2d 402 (1993). 2 A new trial is required only if the record, as reconstructed, is inadequate for effective appellate review of the defendant's claims. State v. Williams, supra at 105, 629 A.2d 402.
The sufficiency of a reconstructed transcript to enable appellate review is a question of fact. We will affirm the habeas court's determination that a reconstructed record was sufficient unless that determination is clearly erroneous. State v. DePastino, 228 Conn. 552, 557-58, 638 A.2d 578 (1994). The petitioner in the present case contends that the reconstruction is inadequate because some facts may be missing from the record. The petitioner's appellate counsel did not represent him at the habeas hearing and does not know if any significant facts were omitted from the reconstructed record. Nor can this court, through omniscience, know what, if any, important facts are missing. The habeas court was in the best position to determine whether there were any significant facts missing from the reconstruction and the petitioner has not demonstrated that the habeas court finding was clearly erroneous.
Furthermore, before a defendant can establish that he is entitled to a new trial on the basis of an inadequate reconstructed record, he must identify a specific appellate claim that this court would be unable to review effectively using the reconstructed record. State v. DePastino, supra, 228 Conn. at 558, 638 A.2d 578. The defendant has not identified any specific claim that we cannot review on the basis of the reconstructed record. After reviewing the petitioner's specific claims of ineffective counsel, we conclude that raising these claims does not depend on a verbatim transcript of the habeas court testimony. See part II of this opinion.
The petitioner has not demonstrated that the reconstructed record prejudiced him so that he was unable to present his claims to this court for review. We therefore conclude that the habeas court's ruling that the reconstructed record was adequate for effective appellate review was not clearly erroneous.
On his certified claim the defendant argues that he was denied his sixth amendment right to effective assistance of counsel both at his criminal trial and on appeal from his conviction.
The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (Citations omitted; internal quotation marks omitted.) Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 598 (1992).
The petitioner contends that the habeas court improperly denied his petition solely on the basis that he had not satisfied the prejudice prong of Strickland. A court, however, need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim. Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).
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...appellate claim that this court would be unable to review effectively using the reconstructed record." Harris v. Comm'r of Corr., 40 Conn.App. 250, 671 A.2d 359, 363 (1996). We believe our supreme court would follow a rule requiring the party challenging a reconstructed record on appeal to ......
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