Jenkins v. Commissioner of Correction

• Citation: 52 Conn. App. 385,726 A.2d 657
• Decision Date: 23 March 1999
• Docket Number: (AC 17883)
• Parties: KEITH JENKINS v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

52 Conn. App. 385

726 A.2d 657

KEITH JENKINS v. COMMISSIONER OF CORRECTION

(AC 17883)

Appellate Court of Connecticut.

Argued December 3, 1998.

Officially released March 23, 1999.

Schaller, Hennessy and Sullivan, Js. Jo Anne Sulik, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, Christopher L. Morano, deputy chief state's attorney, and John J. Dropick, former senior assistant state's attorney, for the appellant (respondent).

Elizabeth M. Inkster, assistant public defender, for the appellee (petitioner).

Opinion

SCHALLER, J.

The respondent commissioner of correction appeals from the judgment of the habeas court granting the petitioner's amended petition for habeas corpus, which was based on a claim of ineffective assistance of trial counsel. The respondent claims on appeal that the habeas court improperly (1) applied the Strickland¹ presumption that counsel's acts and omissions constitute reasonable tactical decisions, (2) found that counsel's performance was deficient for failing to object to the prosecutor's argument regarding the credibility of witnesses, (3) found that counsel's performance was deficient for failing to object to the prosecutor's inadvertent mixing of names, (4) found that counsel's performance was deficient for failing to object to the prosecutor's argument regarding alleged excessive force by the police and (5) found that the petitioner suffered prejudice as a result of counsel's failure to object to the state's various arguments. We reverse the judgment of the habeas court.

The following facts and procedural history provide the necessary background to the disposition of this appeal. The petitioner was convicted, after a jury trial, on November 7, 1989, of interference with a search in violation of General Statutes § 54-33d, risk of injury to a child in violation of General Statutes § 53-21 and reckless endangerment in the first degree in violation of § 53a-63 (a). The trial court subsequently sentenced the petitioner to a total effective sentence of twenty years incarceration. On direct appeal, we affirmed the judgment of conviction. State v. Jenkins, 24 Conn. App. 330, 588 A.2d 648, cert. denied, 219 Conn. 903, 593 A.2d 132 (1991).

We determined in Jenkins that the jury reasonably could have found the following facts. "On July 26, 1988, twelve police officers converged on an apartment on Hampton Street in Hartford to execute a search warrant for narcotics, drug paraphernalia and weapons. When the police arrived, the apartment was occupied by a female tenant, her two year old child, a twelve year old child, and by another woman, the [petitioner], and six other males. The officers' initial attempts to gain entry without force failed when the [petitioner] threatened to shoot the officers if they set foot inside the unit. Because of the [petitioner]'s threat, a two hour standoff ensued during which the police called in an emergency response team, notified a hostage negotiator, and evacuated a family from a nearby apartment. The episode caused a crowd, estimated at between 300 and 400 people, to gather outside the building. The police called for backup units to bring sledgehammers to break down the door.

"A refrigerator blocked the first door that the police tried to open. Following their successful forced entry at a second door, Sergeant Frank Campbell and Detective Peter Getz encountered the [petitioner] brandishing a gun and holding the two year old. The officers also observed several other people in the unit. The [petitioner]'s threats to shoot the officers compelled them to back out of the apartment. From their position in the stairway, the police shouted for the [petitioner] to release the women and children. The door then opened and the two women and the twelve year old child emerged. The two year old appeared in the doorway, but the [petitioner] quickly pulled the child back and slammed the door. "Meanwhile, Officer Paul Kutcher, who was positioned outside the building, observed several people in the apartment throwing things into the sink. Kutcher also saw the [petitioner] hold the now crying two year old out the window, shielding himself with the child while shouting threats to the police and attempting to incite the crowd. The police in the stairway heard male voices yelling from inside the apartment that they wanted to surrender. The police told them to crawl out on their stomachs one at a time. Several males exited the apartment in this fashion, leaving only the [petitioner], the child and another male in the unit.

"The police were subsequently approached by the [petitioner]'s attorney, who had apparently been contacted by the [petitioner] during the standoff. The attorney talked with the [petitioner] from outside the apartment door. As a result of this conversation, the [petitioner] released the child and surrendered to the police. The subsequent search of the apartment yielded the following evidence: a handgun and bullets, a gram scale with cocaine residue, vial containers and caps,.38 caliber bullets and a police radio scanner. All of these items were introduced at trial as indicative of a drug outlet operation." Id., 331-33.

Following the disposition of the petitioner's direct appeal, he instituted a habeas corpus proceeding. In a revised amended petition dated December 9, 1996, the petitioner claimed that the prosecutor, assistant state's attorney Christopher Morano, "wrongfully told the jury that the petitioner had been convicted of certain felonies and advised the jury that they could use the petitioner's criminal record to discredit his credibility and ... wrongfully offered the jury his own opinion as to the veracity of the testimony of Edgar Leon Perry, a defense witness." The petitioner alleged that such conduct constituted prosecutorial misconduct and that, because his trial counsel failed to object to the prosecutor's statements, failed to request a curative instruction and failed to file a motion for mistrial, he was denied the effective assistance of counsel.² It is undisputed that the petitioner did not testify at trial and that there was no evidence that he had any felony convictions.

At the habeas trial, the petitioner's trial counsel, William T. Gerace, was called as a witness. Gerace testified that, by the time of the habeas trial, he had no specific recollection of the trial and, because the file was shredded, he could not refresh his recollection with notes. He did testify that the reference to the petitioner in connection with felony convictions appeared to be inadvertent. The habeas court noted that Gerace "testified that as a general proposition counsel should never object during final argument because jurors view interruptions as rude and upsetting. He stated that if he had objected he would have brought an inappropriate focus to the petitioner at that time." Gerace had no recollection of the other remarks of the prosecutor of which the petitioner complained and, therefore, could offer no tactical reasons beyond his general disinclination to object during closing argument.

Louis Avitable, an attorney, testified as an expert witness on the petitioner's behalf. The habeas court noted that Avitable testified that there was no reason based on sound trial tactics or strategy for trial counsel not to have objected to the prosecutor's allegedly improper statements and not to have asked the court for immediate curative instructions to the jury.

The habeas court focused on six comments of the prosecutor that it deemed improper. Those comments will be set forth as they become relevant in the context of the respondent's specific claims. Additionally, the habeas court found that the prosecutor improperly argued facts not in evidence and interjected a personal opinion when he "made a representation to the jury concerning the processing of police brutality complaints. This information was not otherwise before the jury." The habeas court concluded that "counsel's failure to object during closing argument to the assistant state's attorney's statement that the [petitioner] had a criminal record, to his personal comments on the credibility of defense witnesses, and to his statement concerning the role of his office in prosecuting claims of excessive police force, together with his failure to seek curative instructions and a jury charge specifically geared to the offending remarks render the results of the petitioner's trial unreliable." The habeas court found that, but for counsel's failures as stated, there is a reasonable probability that the jury would have had a reasonable doubt as to the petitioner's guilt. In making this assessment, the habeas court noted that "while none of the comments made by the assistant state's attorney were egregious, the statements were all directed to factors and issues central to the proof of the state's case with the exception of attorney Morano's misstatement that Jenkins had a felony record."

At the outset, we note that the trial court, in its instructions to the jury, explained: "In reaching your verdict, you should consider all the testimony and the exhibits received into evidence. Certain things are not evidence and you may not consider them in deciding what the facts are.... [A]rguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their closing arguments and in their questions or any comments to the court is intended to help you to interpret the evidence or me to interpret the law, but it is not evidence. If the facts, as you remember them, differ from the way the lawyers have stated them, your memory and yours alone controls."³ The trial court, however, gave no instructions concerning the prosecutor's specific comments.

The trial court also instructed the jury on the credibility of witnesses, explaining that "[t]he credibility, the believability of the witnesses and the weight to be given their testimony are...