Opinion
No. CV-97-0402388 S
April 28, 2006
MEMORANDUM OF DECISION
This is a habeas corpus action wherein the petitioner, Brian Barrett, seeks to have his conviction for manslaughter in the first degree vacated on the grounds of juror misconduct. Trial of the present matter took place on February 10, 2006. Following the completion of evidence and oral argument, a briefing schedule was established. For the reasons set forth below, the court finds that the petitioner has failed to prove his claims and the petition is ordered dismissed.
The briefing schedule called for the petitioner to file his brief by March 10, 2006, the respondent to file a brief by April 7, 2006 and the petitioner to file a reply brief by April 21, 2006. To date, the petitioner has not filed any brief. On April 7, 2006, the respondent filed a motion for judgment.
FACTS
Based on the evidence presented at the habeas trial, the court finds the following facts.
The petitioner was charged with murder and related charges in the matter known as State of Connecticut v. Brian Barrett, docket number CR 94-0107728, judicial district of Stamford/Norwalk at Stamford. Following a jury trial, the petitioner was convicted of one count of manslaughter first degree by extreme emotional disturbance. On August 29, 1996, he was sentenced by the trial court (Dean, J.) to twenty years imprisonment.
Prior to and during his trial, petitioner was represented by Attorney Joseph Bruckman of the Public Defender's Office. Attorney Bruckman also initially represented petitioner on his direct appeal, but he eventually moved to withdraw as counsel. This motion to withdraw was supported by a so-called Anders brief.
Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct 1396 (1967).
On or about November 15, 1996, Attorney Bruckman became aware that a member of the jury at petitioner's trial, Keith Felcyn, had written an article about the trial that had been published in the November 1996 issue of Greenwich Magazine. The article described Mr. Felcyn's experience as a juror on petitioner's trial from jury selection to verdict. In the article, Mr. Felcyn states the following:
"Two of us jurors, separately and unknown to the other, visited Southfield Village to get our own sense of its geography and character . . ."
Exhibit 1. Southfield Village was the location of the alleged murder.
Following the publication of the article, an investigator for the Public Defender's office, Matthew Whalen, interviewed Mr. Felcyn and the other juror mentioned. Both jurors stated that during deliberations they had driven past Southfield Village. Neither one had left their car and neither one had visited the area where the shooting took place. The jurors each told Investigator Whelan that nothing they saw during these drives influenced the verdict. Mr. Felcyn further stated that after the conclusion of the trial, he went to the actual scene of the shooting in order to write the article. Investigator Whelan prepared a report of his interviews (Exhibit 1) and provided it to Attorney Bruckman.
After reading Whelan's report, Attorney Bruckman concluded that it was not going to help petitioner in the future. He nevertheless provided a copy of the magazine article, and possibly Whelan's report, to petitioner. Attorney Bruckman did not request a hearing on this matter with the trial court because he did not believe he had a ground for a hearing.
Keith Felcyn completed the article about his juror experience in or around September 1996. Sometime prior to the verdict he drove up and down a street adjacent to Southfield Village but did not go to the inner area where the crime occurred. After the trial, he went back to the area accompanied by a police officer and entered the inner portion of Southfield Village which was the scene of the crime. Mr. Felcyn's observations prior to the verdict did not influence his decision.
DISCUSSION
Petitioner asserts that his conviction was the product of juror misconduct. He further asserts that he was entitled to hearing pursuant to State v. Brown, 235 Conn. 502 (1995) and that Attorney Bruckman did not pursue such a hearing. The respondent asserts that the petitioner's remedy for the alleged juror misconduct was a petition for new trial pursuant to General Statutes § 52-270 and Practice Book § 42-55, and that such a petition is now time-barred based on the three-year statute of limitations for a petition for new trial contained in General Statutes § 52-582. The respondent further asserts that petitioner has not established the requisite cause and prejudice to excuse this procedural default. The court agrees with the respondent.
In Summerville v. Warden, 229 Conn. 397 (1994) our Supreme Court stated that "a habeas corpus petition is not a surrogate for a time barred petition for a new trial." Id., 429. Moreover, where there has been a procedural default, Connecticut has adopted the "cause and prejudice" standard for reviewability in a habeas proceeding of constitutional claims not adequately preserved at trial. Johnson v. Commissioner of Correction, 218 Conn. 403, 409 (1991); Summerville v. Warden, supra 229 Conn. 428.
In the present case, the petitioner has not satisfied the cause and prejudice standard. As to cause, the petitioner has offered neither evidence nor argument as to any good cause for his failure to bring a timely petition for new trial. Petitioner was aware of the magazine article when Attorney Bruckman sent it to him in or around November 1996. To date, he has not filed a petition for new trial. More significantly, the petitioner has not established actual prejudice from the failure to seek a hearing regarding potential juror misconduct. The uncontradicted evidence is that (1) neither Mr. Felcyn nor the other juror, prior to verdict, visited the actual scene of the crime; (2) their drive-by of the general area had no influence on their deliberations or verdict. Had a Brown hearing been held either by the trial court or pursuant to a petition for new trial, such a hearing would not have resulted in a finding of juror misconduct that affected the verdict. To the contrary, the evidence offered before this court clearly indicates that verdict was uninfluenced by the visits to Southfield Village.
The respondent asserts that the trial court lacked jurisdiction to consider any claim of juror misconduct because the claim arose after judgment had entered.
In sum, the court finds that the petitioner's juror misconduct claim should properly have been brought as a petition for new trial and that petitioner has failed to establish either cause or prejudice for his failure to file such a petition. The court further finds that petitioner has failed to prove that his manslaughter conviction was a result of juror misconduct. In addition, although not explicitly alleged in this way, to the extent that petitioner asserts that the failure to seek a Brown hearing was due to ineffective assistance by Attorney Bruckman, such claim is rejected. Attorney Bruckman's assessment of the import of the Greenwich Magazine article was correct and, as stated above, pursuing such a claim would not have affected the result of petitioner's case.
It is unnecessary to resolve the substantial question of whether Attorney Bruckman even represented petitioner with respect to pursuing legal remedies arising from the article.
CONCLUSION
For the reasons set forth above, the habeas petition is ordered dismissed.
So ordered.