Levine v. Manson

• Decision Date: 09 April 1985
• Citation: 490 A.2d 82,195 Conn. 636
• Court: Connecticut Supreme Court
• Parties: Seymour LEVINE v. John R. MANSON, Commissioner of Correction.

Page 82

490 A.2d 82

195 Conn. 636

Seymour LEVINE v. John R. MANSON, Commissioner of Correction.

Supreme Court of Connecticut.

Argued Feb. 5, 1985.

Decided April 9, 1985.

Dominick J. Thomas, Jr., Danby, with whom, on the brief, was Sheila M. Press, Shelton, for appellant (petitioner).

Richard D. Arconti, Sp. Pros. Atty., for appellee (respondent).

Before PETERS, C.J., and HEALEY, PARSKEY, SHEA and SANTANIELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The petitioner, Seymour Levine, was found guilty after a jury trial of one count of assault in the second degree in violation of General Statutes § 53a-60(a)(2) and three counts of threatening in violation of General Statutes § 53a-62. Thereafter, he petitioned for a writ of habeas corpus claiming that he had not received the effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution. ¹ After a full evidentiary hearing, ² the court denied his petition. We find no error.

Some of the facts that the jury could reasonably have found from the conflicting versions of the events that resulted in the petitioner's arrest were the following: The incident that produced the arrest of the petitioner took place on July 24, 1981, on Lyrical Lane in Newtown where the petitioner and the victim, Alfred Duchaine, were neighbors. ³ As Duchaine drove up to his driveway, he saw Susan Levine, the petitioner's daughter, walking an afghan dog owned by the Levines in front of his (Duchaine's) house. The dog stopped and defecated in front of Duchaine's house. Duchaine obtained a short-handled shovel, scooped up the excrement and deposited it on the petitioner's lawn. At that time, the petitioner was watering his flowers and the lawn with a garden hose that had a detachable metal nozzle. The petitioner, who observed Duchaine do this, became involved in a heated argument with Duchaine in the course of which he struck Duchaine in the back of his head with the metal nozzle. This caused the victim to stagger and resulted in a lump on his head.

Two brothers, Robert Mandulak and Michael Mandulak, who were working on Robert's neighboring property, came to the scene upon hearing Duchaine call Robert's name. With Duchaine there and the two Mandulaks approaching him, the petitioner removed a pistol from his pants pocket and stuck it in Duchaine's face. He also said to the approaching Mandulaks: "I have enough here for all of you." Duchaine then walked back to his house with the Mandulaks and he called the police who, after an investigation, arrested the petitioner.

The petitioner's claims of ineffective assistance of counsel directed against his privately retained trial defense counsel are multiple and do not singly, in clusters or cumulatively persuade us of the merits of his claim. These claims include inadequate pretrial investigation; "numerous failures to object to highly prejudicial testimony"; "failure to cross examine properly," the cross-examination being variously characterized as "disorganized," "deficient," "abortive" or "abbreviated"; failure to explore matters important to the defense; failure to call as a witness someone identified in the testimony as present during the commission of the crimes charged; examining the petitioner so as to prejudice him in the eyes of the jury; failure to prepare properly by obtaining documentary evidence that was a public record; failure to take exception to the trial judge's rulings; failure to request appropriate jury instructions at the trial; and indulging in contradictory and disjointed trial strategy.

It is helpful to set out here several postulates that are meaningful to the petitioner's claim. The right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution. This right is equally applicable whether defense counsel is court-appointed or, as in the present case, privately-retained. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); State v. Mason, 186 Conn. 574, 577, 442 A.2d 1335 (1982); State v. Barber, 173 Conn. 153, 155, 376 A.2d 1108 (1977).

Our cases demonstrate that "[t]o succeed in his claim of ineffective assistance of counsel, the petitioner must show that his attorney's performance was not ' "reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law" '; State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975); and further, that this ' "lack of competency contributed to the conviction." ' State v. Clark, supra. See also State v. Gregory, 191 Conn. 142, 143-44, 463 A.2d 609 (1983); State v. Scielzo, 190 Conn. 191, 206, 460 A.2d 951 (1983); State v. Chairamonte, 189 Conn. 61, 63, 454 A.2d 272 (1983)." Williams v. Manson, 195 Conn. 561, 489 A.2d 377 (1985).

We now have additional guidance on the petitioner's constitutional claim from the United States Supreme Court's decision in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, --- U.S. ----, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). "In Strickland the Court, while holding that the Sixth Amendment right to counsel is one of 'effective assistance' ... nevertheless imposed a two-component showing before a claim of deprivation of that right may be made: first, it must be shown that the attorney's performance was so deficient and his errors so serious that 'counsel was not functioning as ... "counsel" ' ... and, second, that those errors functioned so 'as to deprive the defendant of a fair trial, a trial whose result is reliable' ... i.e., that there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Gulliver v. Dalsheim, 739 F.2d 104, 107 (2d Cir.1984); quoting Strickland v. Washington, supra, 104 S.Ct. at 2068. Strickland stated not only that "[j]udicial scrutiny of counsel's performance must be highly deferential" but also that the reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under these circumstances, the challenged action 'might be considered sound trial strategy.' [ Strickland v. Washington, supra, 2065-66]." United States ex rel. Roche v. Scully, 739 F.2d 739, 742 (2d Cir.1984). In fairly assessing the attorney's conduct it is required "that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland v. Washington, supra, 104 S.Ct. at 2065. The petitioner has the burden to demonstrate that counsel's conduct fell below the required standard and that that lack of competency contributed to his conviction. State v. Mason, supra, 186 Conn. at 578, 442 A.2d 1335; State v. Clark, supra, 170 Conn. 283, 365 A.2d 1165; In re King, 133 Vt. 245, 248, 336 A.2d 195 (1975).

The judge in this habeas corpus proceeding could have reasonably believed from the evidence before him, much of it conflicting, the following:

The petitioner's trial defense attorney had been a practicing attorney for about twenty-four years and estimated that he had tried thirty criminal cases to a jury. Prior to trial, the trial defense attorney, who had represented the petitioner in the past and had known him for maybe as "much as twenty [years]," had spoken to him concerning this case "on perhaps twenty occasions" and "probably ten phone calls in addition." These discussions took place before and after the pretrial conferences. Although no pretrial motions were filed by the petitioner's counsel, the state's attorney handed this defense attorney his entire file and he "read it--every single page, both front and back." See State v. Nelson, 38 Conn.Sup. 349, 351, 448 A.2d 214 (1982); cf. Siemon v. Stoughton, 184 Conn. 547, 554, 556, 440 A.2d 210 (1981). He spoke with the petitioner and the wife, son and daughter of the petitioner and also visited the scene of the crimes charged. He decided that the only witness he would call at trial would be the petitioner himself. ⁴

The petitioner sat by his attorney's side during the entire trial and frequently consulted with him; this included suggesting questions to be asked, which the petitioner would write on a pad. He was also "one hundred percent" involved in jury selection, consulting with the attorney on each prospective juror. One potential juror was challenged because that person was unacceptable to the petitioner. Just before evidence was presented the court granted a motion by defense counsel that the witnesses be sequestered.

Upon examination of the trial transcript and that of the habeas hearing, it is abundantly clear that credibility was key and that self-defense was the theory of the defense. Duchaine, who worked on heavy construction, on cross-examination maintained that he had never been "angry" with the petitioner nor had "cross words" with him. Duchaine said that right after he had placed the dog droppings on the petitioner's property, the petitioner swore at him. During that part of the "conversation" he said that he did not have the shovel in his hand but that it "was behind me" as "I threw it down." On cross-examination, he denied making any comments about the petitioner's "parentage."

Robert Mandulak admitted on cross-examination that he had complained to the police "probably less than" five times about the petitioner in the past. He also admitted at that time that his wife had done the same and as a result the petitioner was arrested. In addition,...