Small v. Commissioner of Correction, No. 17803.
Decision Date | 06 May 2008 |
Docket Number | No. 17803. |
Citation | 946 A.2d 1203,286 Conn. 707 |
Court | Connecticut Supreme Court |
Parties | Anthony SMALL v. COMMISSIONER OF CORRECTION. |
Joseph Visone, special public defender, for the appellant (petitioner).
Susann E. Gill, senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (respondent).
ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.
The issue in this appeal is whether the trial or appellate counsel of the petitioner, Anthony Small, rendered ineffective assistance in failing to object to, or to challenge on direct appeal, the trial court's jury instructions, which did not include the legal definition of "attempt," when the petitioner was charged with felony murder predicated on the crime of attempt to commit robbery in the first degree. We conclude that any error by the petitioner's trial or appellate counsel did not prejudice the petitioner and, therefore, affirm the judgment of the Appellate Court, albeit for reasons different from those on which the Appellate Court relied.
Our prior decision in State v. Small, 242 Conn. 93, 700 A.2d 617 (1997), sets forth the facts that a jury reasonably could have found. "In October, 1990, the [petitioner] was involved in drug trafficking with his friend, Eric Amado. The [petitioner] and Amado stored drugs at the West Haven apartment of Amado's girlfriend, Joanne Bailey. Bailey shared the apartment with Hope Vaughn, who had been dating the [petitioner]. On October 19, 1990, Vaughn, who was upset over statements regarding her allegedly made by the [petitioner] and Amado, decided that she would `put a stop to it.' Vaughn telephoned a friend, Anthony Young, and asked him to come to the apartment she shared with Bailey. She then opened a window and knocked over some of the apartment's furnishings to make it appear as though the apartment had been burglarized. When Young arrived, Vaughn told him that she had some things to bring out and, after Young had backed his car, a red Toyota Celica, up to the door of the apartment building, she loaded two duffel bags and a small safe containing the drugs into the trunk of the car. The two then drove to Young's apartment in Bridgeport, where they were joined by Peter Hall, Vaughn's former boyfriend.
1 Id., at 97-98, 700 A.2d 617.
(Citation omitted.) Small v. Commissioner of Correction, 98 Conn. App. 389, 394-95, 909 A.2d 533 (2006).
The petitioner filed a petition for a writ of habeas corpus on February 2, 2000, in which he "raised seven errors of the trial court, thirteen of trial counsel and five of appellate counsel...." Id., at 394, 909 A.2d 533. The habeas court subsequently granted the petitioner permission to amend his habeas petition to add the two claims at issue in this appeal. First, the petitioner claimed that his trial counsel rendered ineffective assistance when he failed to seek a jury instruction on "[c]riminal attempt" as defined in General Statutes § 53a-49 and failed to object to the trial court's omission of such an instruction in its charge to the jury. Second, the petitioner claimed that his appellate counsel rendered ineffective assistance in failing to raise on direct appeal the issue of whether such an instruction was constitutionally required.
A criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); In re Christina M., 280 Conn. 474, 489, 908 A.2d 1073 (2006). To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). It is well settled that "[a] reviewing court can find against a petitioner on either ground, whichever is easier." (Emphasis added.) Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); see also Strickland v. Washington, supra, at 697, 104 S.Ct. 2052 ().
With respect to the petitioner's claims in the present case, the habeas court found the following facts. "[T]he [trial] court charged that the underlying felony to the felony murder charge was criminal attempt to commit robbery. However, the jury was not charged on the elements of attempt....
(Citation omitted.) Without addressing whether either trial counsel's or appellate counsel's failure to except to the charge amounted to ineffective assistance, the habeas court concluded that no prejudice resulted from the trial court's failure to charge the jury on the statutory definition of criminal attempt. The habeas court specifically concluded: "[T]his jury found facts so closely related to those required to find an attempt that the failure to charge on attempt was harmless ....
"Under the circumstances of this case with overwhelming evidence of guilt and the jury's finding that [the petitioner] not only participated in but conspired to commit the underlying offense, the court concludes the inclusion of language treating with `attempt' would have had no reasonable effect on the outcome."2 (Citations omitted; emphasis added.) Therefore, the habeas court rendered judgment denying the habeas petition. Thereafter, the petitioner sought certification to appeal from the habeas court's judgment, which the habeas c...
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