Lacks v. Warden
| Decision Date | 02 July 2003 |
| Docket Number | 559588. |
| Court | Connecticut Superior Court |
| Parties | Alexander Lacks, v. Warden. |
By his amended petition and second amended petition, petitioner seeks a writ of habeas corpus. For reasons hereinafter stated, the petition is denied.
In the amended petition, count one, petitioner alleges a claim of ineffective assistance of counsel. Count two in the second amended petition sets forth what plaintiff claims are improper remarks made by the prosecutor at petitioner's trial. It is claimed that petitioner's attorney failed to object to these improper remarks and that the appellate court declined to review claims of prosecutorial misconduct because of the failure of counsel to object to the remarks. Count three of the second amended petition repeats the essential allegations of the second count and claims that petitioner's attorney failed to preserve the issues by requesting a curative instruction from the trial court. Count four alleges that petitioner's trial counsel failed to request that the jury be instructed that the information was not evidence. Count five also alleges that the trial counsel failed to request a curative instruction. The sixth count alleges a violation of plaintiff's right to due process under the state and federal constitutions.
By way of relief petitioner seeks to vacate the verdict of the trial court and restore the case to the docket for further proceedings as well as such other relief as law and justice may require.
Petitioner was the defendant in a criminal trial and the judicial district of New Haven, in which it was alleged that he committed the crimes of felony murder in violation of Connecticut General Statutes § 53a-54e and robbery in the first degree in violation of Connecticut General Statutes § 53a-134(a)(2). Petitioner was convicted of both offenses on January 8, 1997. His conviction was affirmed on direct appeal. State v. Lacks, 54 Conn. App. 412, cert. den. 254 Conn. 919, 759 A.2d 1026 (2000).
In upholding petitioner's conviction, the appellate court found that the trial jury could reasonably have found the following facts.
On the evening of October 24, 1994, Jose Marrero, Amy Cobain and Devon Mcfarlane went to Louis Hood's apartment on Frank Street in New Haven. The quartet then proceeded to a nearby convenience store on Arch Street, where Marrero sought to obtain change for a $ 100 bill. Three black males, who were later identified as the defendant, Eaker McClendon and Leotis Payne, followed, them.
McFarlane did not enter the store with the others. After Marrero obtained his change, the quartet started walking back to Hood's apartment. The defendant, McClendon and Payne were still following them. Suddenly, Payne approached Cobain, put a gun to her head and demanded money. The defendant and McClendon repeatedly urged Payne to "hurry up" and get the money. Hood pushed Cobain out of the way and urged her to run, which she did. Payne then put the gun to Marrero's head, went through his pockets and took his money. Then, as Payne began to pull the trigger of the gun, Hood pushed Marrero out of the way and Payne shot Hood in the chest. Thereafter, the defendant, McClendon and Payne fled.
Officer Ricardo Rodriguez of the New Haven police department arrived at the scene and observed Hood on the sidewalk, Hood was later pronounced dead from the bullet wound, from which a .25 caliber bullet was extracted. Later, Marrero identified the defendant, McClendon and Payne at the police station as the perpetrators of the crime, and Cobain and McFarlane indicated that Payne was the shooter.
On October 27, 1994, the police entered the apartment of the defendant's girlfriend by use of force, found the defendant and arrested him. McClendon had fled out the back window and subsequently was apprehended. At trial, the defendant testified that on the night of the shooting he was unarmed and unaware of Payne's intentions or that Payne possessed a gun. He testified further that he did not see Payne or any other individual rob anyone and ran because he was fearful of gang members.
State v. Lacks, supra, 58 Conn.App. 414-15.
As a result of his conviction, petitioner was committed to the custody of the Commissioner of Correction for a term of thirty-five years. He remains in the custody of respondent.
Petitioner was represented at trial by Attorney Timothy Aspinwall. On appeal, petitioner was represented by Attorney Suzanne Zitser. In this action, petitioner claims that Attorney Aspinwall was ineffective, as alleged, and that he was therefore denied effective assistance of counsel and due process in violation of his rights under the United States Constitution and the Constitution of the State of Connecticut.
As a defendant in a criminal proceeding, petitioner was Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995).
The general standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, supra, 466 U.S. 668. "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 . . . thus, he must establish not only that his counsel's performance was deficient, but as a result thereof, he suffered actual prejudice, namely, that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . In this context, a reasonable probability, 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 of the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome . . . Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 598 (1992)." Mercer v. Commissioner of Correction, 51 Conn.App. 638, 640-41, 724 A.2d 1130 (1999).
"In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial." Id.
Only if the petitioner succeeds in this herculean task will he receive a new trial. Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13 (2001).
In his brief, petitioner has raised a number of issues. He claims that the disparate results in the appeal of his case and that of Leotis Payne constitutes a denial of due process. It is also claimed that petitioner suffered ineffective assistance of counsel at the trial stage. It is argued also that the ineffective performance of his attorney prejudiced his case on appeal and that the attorney was ineffective in his preparation for trial and in the advice given to petitioner.
The court is not bound to consider any claim not briefed. Shaw v. Planning Commission, 5 Conn.App. 520, 525, 500 A.2d 1338 (1985); Moulton Brothers, Inc. v. Lemieux, 74 Conn.App. 357, 363, 812 A.2d 129 (2002).
Citing California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), petitioner states that due process is tantamount to observing fundamental fairness in criminal prosecution. Petitioner claims that the disparate results in the appeals of Leotis Payne's case and his case constituted a denial of due process to him.
The due process claim is based upon certain procedural aspects of the case. Petitioner and his co-defendants Payne and McClendon were all convicted after separate trials. State v. Lacks, supra, 54 Conn.App. 412; State v. Payne, 63 Conn.App. 583, 777 A.2d 731 (2001); State v. McClendon, 56 Conn.App. 500, 743 A.2d 1154 (2000).
The same attorney prosecuted both petitioner's case and Payne's case. Both trials were presided over by the same judge.
Payne's trial was completed before the start of evidence in petitioner's case. After conviction, both cases were appealed. Petitioner's appeal was considered by the Appellate Court. The decision released on June 27, 2000 upheld the conviction. Id. Certification to the Supreme Court was denied on October 2, 2000. State v. Lacks, 254 Conn. 919, 759 A.2d 1026 (2000). The Appellate Court confirmed Payne's conviction by decision released May 29, 2000. Id. On July 5, 2001, the Supreme Court granted certification of Payne's appeal limited to the question: "In the exercise of our supervisory authority over the administration of justice, should the defendant be afforded a new trial due to pervasive prosecutorial misconduct during closing argument?" State v. Payne, 257 Conn. 904, 777 A.2d 195 (2001). By decision released June 11, 2002, the Supreme Court reversed Payne's conviction and remanded the case for a new trial. State v. Payne, 260 Conn. 446, 797 A.2d 1088 (2002).
After the release of the Supreme Court decision granting Payne a new trial, petitioner's appellate counsel moved the Supreme Court to reconsider certification of his case. Permission to file was granted, but certification was denied. Petitioner has presented no specific Connecticut or federal legal authority for his claim that the granting of a new trial to Payne, who fired...
To continue reading
Request your trial