State v. Mason

• Decision Date: 30 March 1982
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. William H. MASON.

Page 1335

442 A.2d 1335

186 Conn. 574

STATE of Connecticut v. William H. MASON.

Supreme Court of Connecticut.

Argued Nov. 10, 1981.

Decided March 30, 1982.

Richard Emanuel, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Frank Maco, Asst. State's Atty., for appellee (State).

Before SPEZIALE, C. J., and PETERS, PARSKEY, ARMENTANO and SHEA, JJ.

SPEZIALE, Chief Justice.

After a jury trial, the defendant was convicted of murder in violation of § 53a-54a(a) of the General Statutes. ¹ The defendant has appealed, claiming error in (1) the denial of his right to effective assistance of counsel, (2) the decision of the trial court not to admit evidence concerning one of the deceased's convictions, and (3) the instructions to the jury on intent. We find no error.

The jury could reasonably have found the following facts: On September 1, 1978, the defendant fired a single gunshot at Wilbert Hill which resulted in Hill's death thirty-five days later. The incident arose from a dispute concerning the right to run an outdoor dice game near the intersection of Walter and Pembroke Streets in Bridgeport. A police officer had observed the deceased and the defendant arguing a few hours before the shooting. A witness for the state testified that prior to firing the fatal shot the defendant stated "I'm going to shoot you, you mother fucker" and that after the shot had been fired, the defendant said "I shot you, you mother fucker now I'm going," at which point the defendant fled the scene. The defendant voluntarily surrendered to the police eight days later.

The defendant did not deny that he shot Hill, but he maintained throughout that he had fired in self-defense and only with the intent to incapacitate, not to kill. The defendant presented his own eyewitness who testified that just prior to the shooting he saw the deceased moving quickly toward the defendant while the crowd at the game was dispersing as if they knew something was about to happen. This witness then saw the deceased reach for something in his pants or jacket at which point the defendant fired. The defendant also produced two character witnesses who testified to the deceased's violent reputation and to the defendant's reputation for non-violence. The defendant testified on his own behalf and stated that because he believed that the deceased was about to shoot him he shot first, but only with the intent to incapacitate the deceased so as to prevent him from drawing his gun. No gun was found on the deceased by the police.

I Ineffective Assistance of Counsel

The defendant's principal claim of error is that he was denied the effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, section eight of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed.2d 763 (1970); Reece v. Georgia, 350 U.S. 85, 90, 76 S.Ct. 167, 170-171, 100 L.Ed. 77 (1955); Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932). This right is equally applicable whether defense counsel is court-appointed, or, as in the present case, privately-retained counsel. Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100 S.Ct. 1708, 1716-1717, 64 L.Ed.2d 333 (1980).

The standard employed by this court to assess the effectiveness of counsel is whether the defense counsel's performance was " '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); see State v. Just, --- Conn. ---, ---, 441 A.2d 98 (1981); Siemon v. Stoughton, --- Conn. ---, ---, 440 A.2d 210 (1981); State v. Barber, 173 Conn. 153, 155-56, 376 A.2d 1108 (1977); State v. McClain, 171 Conn. 293, 301, 370 A.2d 928 (1976); Gentry v. Warden, 167 Conn. 639, 645-46, 356 A.2d 902 (1975). " 'The defendant's burden is to show that his counsel's conduct fell below that standard and that the lack of competency contributed to the conviction.' " State v. Clark, supra.

The defendant, now represented by a public defender, alleges numerous errors by his privately-retained trial counsel which are claimed to amount to a denial of the defendant's right to effective assistance of counsel. The alleged errors by counsel concern harmful and prejudicial evidence which either was elicited and introduced into evidence by defense counsel or was admitted without objection. ²

This court has emphasized in other cases that a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal. ³ State v. Just, supra, --- Conn. ---, 441 A.2d 98; State v. Barber, supra, 173 Conn. 154-55, 376 A.2d 1108. Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence which is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency. "The defendant, his attorney, and the prosecutor have an opportunity to testify at such a hearing as to matters which do not appear of record at the trial, such as ... whether for tactical reasons, objection was not made to certain adverse testimony, just how much information the defense attorney received from his client about statements made to others, and other such relevant matters." State v. Barber, supra, 155, 376 A.2d 1108.

The present case is one where the record on appeal is inadequate to allow this court to decide whether the performance of trial counsel was not reasonably competent nor within the range of competence exercised by attorneys with ordinary training and skill in criminal law, and, if so, whether such performance contributed to the defendant's conviction. Therefore, we can not find error on this claim. This conclusion, of course, does not preclude the defendant from pursuing this claim in the appropriate collateral action.

II Admission of Deceased's Conviction

A significant aspect of the defendant's claim of self-defense involved demonstrating the violent character and reputation of the deceased. The defendant assigns as error the trial court's refusal to allow the defendant to introduce evidence concerning the deceased's conviction for the unlawful discharge of a firearm in violation of § 53-203 of the General Statutes. ⁴

This court has made clear that in a homicide prosecution where self-defense is claimed the defendant may employ "evidence of the deceased's conviction of crimes of violence" to attempt to show the violent character of the deceased. State v. Miranda, 176 Conn. 107, 114, 405 A.2d 622 (1978). The admission of such evidence, however, lies within the discretion of the trial court. Id., 114, 405 A.2d 622.

The trial court excluded evidence of the deceased's unlawful discharge conviction because the conviction lacked the element of violence. The defendant contests this conclusion. It is not necessary for us to decide whether the conviction contained the requisite element of violence because, even if it is assumed that it did, the exclusion of evidence concerning the conviction was harmless. In view of the evidence concerning the deceased which the defendant was allowed to introduce, ⁵ evidence concerning the unlawful discharge conviction would have been merely cumulative. See State v. Gooch, 186 Conn. 17, 24, 438 A.2d 867 (1982); State v. Jones, 132 Conn. 682, 683, 47 A.2d 185 (1946). There was, therefore, no abuse of discretion by the trial judge in excluding it.

III Instructions on Intent

The defendant claims two errors in the trial court's instructions to the jury on the element of intent: (A) the instructions violated the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); and, (B) the instructions were inadequate because they did not include the statutory definition of "intent" found in General Statutes § 53a-3(11).

A Sandstrom Claim

The defendant acknowledges that this claim of error was not properly preserved in the court below. See Practice Book §§ 852, 854, 3063. We have held previously, however, that a claim of error under Sandstrom v. Montana, supra, falls within the "exceptional circumstances" rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and, therefore, may be reviewed even though not properly preserved below. State v. Johnson, --- Conn. ---, ---, 440 A.2d 858 (1981); State v. Arroyo, 180 Conn. 171, 173-74, 429 A.2d 457 (1980).

During its instructions on intent, the trial court twice stated: "Every person is presumed to intend the natural and necessary consequence of his acts." In Sandstrom v. Montana, supra, the United States Supreme Court held that a jury instruction that " '(t)he law presumes that a person intends the ordinary consequences of his voluntary acts' " violated the defendant's due process rights because a reasonable jury could have interpreted the instruction as a burden-shifting presumption like that invalidated in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), or as a conclusive presumption like those invalidated in United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), and Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Sandstrom v. Montana, supra, 442 U.S. 517-24, 99 S.Ct. 2455-2459.

Although the instruction language in this case is similar to the language found to be erroneous in Sandstrom v. Montana, supra, the rule of...