Small v. Commissioner of Correction

• Decision Date: 14 November 2006
• Docket Number: No. 26245.,26245.
• Citation: 98 Conn.App. 389,909 A.2d 533
• Court: Connecticut Court of Appeals
• Parties: Anthony SMALL v. COMMISSIONER OF CORRECTION.

909 A.2d 533

98 Conn.App. 389

Anthony SMALL v. COMMISSIONER OF CORRECTION.

No. 26245.

Appellate Court of Connecticut.

Submitted on briefs March 31, 2006.

Decided November 14, 2006.

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Joseph Visone, special public defender, filed a brief for the appellant (petitioner).

Susanne E. Gill, senior assistant state's attorney, filed a brief for the appellee (respondent).

McLACHLAN, HARPER and DUPONT, Js.

DUPONT, J.

The petitioner, Anthony Small, appeals following the habeas court's denial of his petition for certification to appeal from the judgment dismissing his petition for a writ of habeas corpus. The dispositive issue to be determined is whether either his trial or appellate counsel rendered ineffective assistance to him arising out of a jury instruction that did not contain the language of General Statutes § 53a-49(a)(2).¹ We agree that his petition for certification to appeal should have been granted as to that issue but conclude that neither counsel rendered ineffective assistance, and, therefore, we affirm the habeas court's judgment on that issue.²

A certifiable issue exists, warranting an appeal to this court, if a petitioner can show that the habeas court abused its discretion. To do so, a petitioner must demonstrate that the resolution of the underlying claim involves issues that are debatable among jurists of reason, that a court could resolve the issues differently or that the questions involved deserve encouragement to proceed further. Bowden v. Commissioner of Correction, 93 Conn. App. 333, 338, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006).

The questions of whether trial counsel should have sought an instruction using the language of § 53a-49(a)(2) or should have excepted to a charge that did not contain that language, or whether appellate counsel, on direct appeal, should have claimed that the lack of such an instruction denied the petitioner a fair trial are questions that are debatable among jurists of reason. No appellate case has decided those precise issues, and the issues are obviously debatable because the appellate panel in this case does not agree on the answers. The questions, therefore, of whether either counsel provided effective assistance to the petitioner deserved encouragement to proceed further, and the petition for certification should have been granted so that these questions could be answered.³ See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

Because certifiable issues, as stated, exist, we next discuss the merits of the petitioner's claim of ineffective assistance of counsel as to them. "The petitioner's right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." (Internal quotation marks omitted.) Nieves v. Commissioner of Correction, 92 Conn.App. 534, 536, 885 A.2d 1268 (2005), cert. denied, 277 Conn. 903, 891 A.2d 2 (2006).

"The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . .

"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Citation omitted; internal quotation marks omitted.) Bova v. Commissioner of Correction, 95 Conn.App. 129, 135, 894 A.2d 1067, cert. denied, 278 Conn. 920, 901 A.2d 43 (2006).

The same two part analysis also applies to the petitioner's claim that his appellate counsel rendered ineffective assistance. "The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions. . . . Indeed, [e]xperienced advocates since time beyond memory, have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. . . .

"To satisfy the prejudice prong, a petitioner must . . . establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt." (Citations omitted; internal quotation marks omitted.) Vivo v. Commissioner of Correction, 90 Conn.App. 167, 171-73, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005).

The petitioner's habeas corpus petition, filed February 2, 2000, raised seven errors of the trial court, thirteen of trial counsel and five of appellate counsel, none of which involved the basic issue of this appeal for which the petitioner deems a new trial for felony murder is necessary. A second amended petition, filed March 31, 2000, for the first time, alleged ineffective assistance of both counsel for their failures to address this issue.⁴ Not even the petitioner, therefore, originally viewed the issue as of paramount importance.

No expert witness at the habeas trial testified for the petitioner that either counsel's performance was deficient. An expert witness is not essential to show that an attorney's performance was so deficient that it fell below the standard of reasonably effective assistance, but in many cases, expert testimony is useful. The habeas court, in this case, without any expert testimony that either counsel was ineffective, ruled that neither of them rendered ineffective assistance to the petitioner.

The petitioner was originally charged with one count of capital felony in violation of General Statutes § 53a-54b(8), two counts of felony murder in violation of General Statutes § 53a-54c, one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134(a)(2) and 53a-48,⁵ and one count of kidnapping in the second degree in violation of General Statutes § 53a-94. He was found guilty of all counts, after a jury trial, except for the count of kidnapping. On direct appeal, the conviction of capital felony was vacated, and the case was remanded for resentencing on the felony murder conviction. State v. Small, 242 Conn. 93, 116, 700 A.2d 617 (1997). On remand, he was sentenced to a total effective term of forty-five years imprisonment. Thus, after direct appeal, the petitioner avoided a sentence of life imprisonment without the possibility of release on the count of capital felony and, after trial, avoided a sentence for the class B felony of kidnapping in the second degree "for which three years of the sentence imposed may not be suspended or reduced by the court." General Statutes § 53a-94(b).

The petitioner claims that he was charged with felony murder on the basis of the predicate crime of attempt to commit robbery in the first degree and that the jury should have been instructed on attempt as provided in § 53a-49(a)(2). The flaw in the petitioner's statement of the issue is that he was not charged with the predicate crime of attempt to commit robbery pursuant to § 53a-49(a)(2). The petitioner could have been charged properly with both felony murder; General Statutes § 53a-54c; and attempt to commit the crime of robbery; General Statutes § 53a-49(a)(2); see State v. Gayle, 64 Conn.App. 596, 781 A.2d 383, cert. denied, 258 Conn. 920, 782 A.2d 1248 (2001); but the petitioner was not charged with both crimes.⁶

The court began its substantive instructions by defining robbery in the first degree, as set forth in § 53a-134(a)(2).⁷ It then instructed the jury with respect to the essential elements of felony murder as follows: "[A] person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit . . . robbery in the first degree and in the course of and in the furtherance of such crime or flight therefrom, he or another participant, if any, causes the death of [a] person other than one of the participants. . . .

"In order for you to find the accused guilty of felony murder, the state must prove beyond a reasonable doubt each of these following elements: that the accused, acting alone or with one or more other persons, committed or attempted to commit the crime of robbery in the first degree ....