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DULL v. COMMISSIONER OF CORRECTIONS

Connecticut Superior Court Judicial District of Danbury at Danbury
Oct 27, 2005
2005 Ct. Sup. 13938 (Conn. Super. Ct. 2005)

Opinion

No. CV03-0347849S

October 27, 2005


MEMORANDUM OF DECISION


In this petition for a writ of habeas corpus, dated December 6, 2002, the petitioner claims that he is being confined illegally for the following reasons:

A. He was arrested on January 28, 1997, and charged with having committed the crime of murder in violation of § 53a-54a of the Connecticut General Statutes on or about January 20, 1997 in the town of Groton.

B. He was represented by the public defender for the judicial district of New London.

C. Upon information and belief, the same public defender suffered from a conflict of interest in that he and/or his office previously had represented the victim, the victim's girlfriend, and several of the victim's business associates.

D. Although there was a sound factual basis for doing so, the said public defender did not contest the petitioner's factual guilt but instead assumed his guilt and presented only the defense of mental disease or defect.

E. Had the public defender challenged the state's ability to prove that the petitioner was the person who committed the homicide in question, it is probable that the state would have been unable to prove its ease beyond a reasonable doubt and the petitioner would have been acquitted.

F. The said public defender waived the petitioner's right to a jury trial without a knowing, voluntary or CT Page 13938-gl intelligent waiver of that right by the petitioner.

G. At the petitioner's trial, the public defender permitted evidence, adverse to his claim that the petitioner was not guilty by reason of mental disease or defect, to be introduced without the testimony of the witness offering such evidence although he could have precluded such evidence by a timely objection to it on the grounds of hearsay and/or violation of the petitioner's state and federal constitutional right to confront his accusers.

H. At the petitioner's trial, the public defender failed to present the testimony of an expert witness known to him who would have strongly supported the contention that the petitioner was not guilty by reason of mental disease or defect.

I. The public defender presented the testimony, at petitioner's trial, of a physician from the West Haven Veterans Administration Hospital. He failed to prepare the witness to testify before presenting the witness and failed to examine the records of the witness prior to presenting the witness or to cause the witness to bring such records to court as exhibits. As a result, vital evidence in support of the petitioner's claims was not presented to the court and the testimony of the witness was significantly impaired.

J. The public defender failed to interview prior to trial the only mental health professional known to be opposed to his contention that the petitioner was not guilty because of mental disease or defect, yet permitted the written evidence of such witness to be presented in evidence without objection.

K. At his trial, as a result of the aforesaid failures of the public defender, the petitioner was found guilty of murder and was thereafter sentenced to a term of thirty-five (35) years in prison.

L. On direct appeal, the petitioner's conviction was affirmed by the Appellate Court.

M. In the ways described previously in this CT Page 13938-gm paragraph, the petitioner was deprived of his Sixth Amendment right to the effective assistance of trial counsel. The conduct of defense counsel fell below the minimum standard of care for a criminal defense attorney at the time and had it not been for such failure it is probable that the result of the petitioner's trial would have been different than it was.

THE PETITIONER'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

In order for a petitioner to prevail on a claim of ineffective assistance of counsel, it is necessary that the petitioner meet the criteria established in Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 105 S.Ct. 2052. Strickland held that there are two components to a claim of ineffective assistance of counsel that have to be met in order to require reversal of a conviction: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudices the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable . . ." Strickland held that the role of the Court in an ineffective assistance claim to be as follows: "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a Court examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or admission of counsel was unreliable . . . A fair assessment of attorney performance requires 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct CT Page 13938-gn falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption under the circumstances, the challenged action `might be considered sound trial strategy' . . . Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Emphasis provided.)

The petitioner's claims will be considered in the order they were briefed by the petitioner.

1. THE PETITIONER'S CLAIM THAT UPON INFORMATION AND BELIEF HIS PUBLIC DEFENDER SUFFERED FROM A CONFLICT OF INTEREST TN THAT HE AND/OR HIS OFFICE PREVIOUSLY HAD REPRESENTED THE VICTIM, THE VICTIM'S GIRLFRIEND, AND SEVERAL OF THE VICTIM'S BUSINESS ASSOCIATES.

The petitioner in his brief in support of petition for a writ of habeas corpus dated October 2, 2005 raises the following claim:

The actual conflict of interest here arose from the fact that defense counsel's former client was, not simply a witness or potential witness at the trial — which would have been no more than a potential conflict, but was actually in a position to benefit monetarily from the petitioner's conviction — as, indeed, she ultimately did. The court may take judicial notice of the records of the Superior Court, attached hereto as Exhibit A, in the case of Salina Barnhill, Administratrix v. Nathan Dull, Docket Number CV-99-0549477-S in the Superior Court at New London.

Although some courts have held that an actual conflict of interest is not presented when defense counsel in a murder prosecution formerly represented the victim in an unrelated matter, e.g., Moseley v. Scully, 908 F.Sup. 1120 (E.D.N.Y. 1995), but see Mickens v. Taylor, 227 F.3d 203 (4th Cir. 2000) (holding that prior representation of the murder victim in an unrelated matter creates an actual conflict of CT Page 13938-go interest prohibiting representation of the accused murderer), it is well-established that an actual conflict does exist when the former client is not the victim but the representative of the victim's estate. That is so for the obvious reason that the estate's representative has a present and existing financial interest in the defendant's conviction. McConico v. State of Alabama, 919 F.2d 1543 (11th Cir. 1990); Strouse v. Leonardo, 928 F.2d 548 (2nd Cir. 1991); People v. Coslet, 67 Ill.2d 127, 131-36, 7 Ill. Dec. 80, 364 N.E.2d 67, 69-71 (1977).

The court is not persuaded by that argument.

In discussing the issue of conflict of interest, the court in Phillips v. Warden, 220 Conn. 112 (1991) stated, in part as follows:

Where, however, the defendant claims that his counsel was" burdened by an actual conflict of interest" id., 692; the defendant need not establish actual prejudice. Id. Where there is an actual conflict of interest, prejudice is presumed because "counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests." Id. In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) "that counsel `actively represented conflicting interests'" and (2) that "`an actual conflict of interest adversely affected his lawyer's performance.'" Id., quoting Cuyler v. Sullivan, supra, 350; see also Burger v. Kemp, 483 U.S. 776, 783, 107 S.Ct. 3114, 97 L.Ed.2d 638, reh. denied, 483 U.S. 1056, 108 S.Ct. 32, 97 L.Ed.2d 820 (1987); State v. Rodriquez, 200 Conn. 685, 696, 513 A.2d 71 (1986). (Emphasis provided.)

A. The issue of whether defense counsel actively represented conflicting interests.

In support of his claim that defense counsel actively represented conflicting interests, counsel for the CT Page 13938-gp petitioner has cited Moseley v. Skully, 908 F.Sup. 1120 (E.D.N.Y. 1995); Mickens v. Taylor, 227 F.3d 203 (4th Cir. 2000); McConico v. State of Alabama, 919 F.2d 1543 (11th Cir. 1990); Strouse v. Leonardo, 928 F.2d 548 (2nd Cir. 1991); and People v. Coslet, 67 Ill.2d 127, 131-36, 7 Ill. Dec. 80, 364 N.E.2d 67, 69-71 (1977).

These cases will be discussed seriatim.

The court finds the following additional fact regarding this claim:

The court finds that the petitioner's public defender did represent Salina Barnhill in the mid to late 1980s. Salina Barnhill is the mother of the victim's child.

The court finds that none of those cases are factually similar to this case.

(a) Moseley v. Skully, supra.

The petitioner properly recognizes that Moseley stands for the proposition that an actual conflict of interest is not presented when defense counsel in a murder prosecution formerly represented the victim in an unrelated matter. In Moseley the court held, in part, as follows:

2. Sparrow Did Not Labor Under An Actual Conflict Which Adversely Affected His Performance (a) No Actual Conflict Of Interest Existed

In Strouse, the Second Circuit addressed the question of whether a habeas corpus petitioner's trial counsel labored under an actual conflict of interest due to the counsel's prior representation of a murder victim. Indeed, the victim in that case was the petitioner's own mother and his lawyer's prior representation of the mother consisted of not one matter handled years earlier, but three separate, unrelated matters — including drafting the mother's will over the course of a number of years. Despite the obvious intimate ties between the mother and lawyer, the court held that no actual conflict of interest existed, stating conclusively: "We can discern no way in which this prior work for [the mother] created a conflict in [the lawyer's] representation of [the petitioner] at his murder trial." Strouse, 928 F.2d at 553. CT Page 13938-gq

(b) Mickens v. Taylor, supra.

The petitioner cites Mickens v. Taylor, 227 F.3d 203 (4th Cir. 2000) for the proposition that prior representation of the murder victim in an unrelated matter creates actual conflict of interest prohibiting representation of the accused murderer. The decision referred to by the petitioner in 227 F.3d 203 was one in which a divided panel of the court reversed the decision of the district court. The Commonwealth's petition for rehearing en banc was granted and the case was again argued before the en banc court. The en banc court held, in part, as follows:

Because we find that Mickens has failed to show an adverse effect, we affirm the decision of the District Court and deny Mickens' petition without deciding whether Mickens has demonstrated that his attorney labored under an actual conflict of interest.

The Supreme Court granted sertiorari, 526 U.S. 970 (2001). The decision of the Supreme Court in 535 U.S. 162 (2002) held in part as follows:

Lest today's holding be misconstrued, we note that the only question presented was the effect of a trial court's failure to inquire into a potential conflict upon the Sullivan rule that deficient performance of counsel must be shown. The case was presented and argued on the assumption that (absent some exception for failure to inquire) Sullivan would be applicable — requiring a showing of defective performance, but not requiring in addition (as Strickland does in other ineffectiveness-of-counsel cases), a showing of probable effect upon the outcome of trial. That assumption was not unreasonable in light of the holdings of Courts of Appeals, which have applied Sullivan, "unblinkingly" to "all kinds of alleged attorney ethical conflicts," Beets v. Scott, 65 F.3d 1258, 1266 (CA 5 1995) (en banc). They have invoked the Sullivan standard not only when (as here) there is a conflict rooted in counsel's obligations to former clients . . .

The factual scenario in Mickens is totally different from the factual scenario in the case before this court. In the case before this court, defense counsel did not previously represent the victim. In the case CT Page 13938-gr before this court, the petitioner has failed to prove that his public defender "actively represented conflicting interests" and has failed to prove that "an actual conflict of interest adversely affected his lawyer's performance."

The petitioner's argument that "it is well established that an actual conflict does exist when the former client is not the victim but the representative of the victim's estate for the obvious reason that the estate's representative has a present and existing financial interest in the defendant's conviction" also does not apply to of the facts of this case.

(c) McConico v. State, supra.

In McConico, the court held in part as follows:

Appellant argues that the actual conflict was Pickard's simultaneous representation of him in his criminal trial and of Brenda McConico in her insurance claim. Appellant contends that Pickard necessarily faced divided loyalties when he cross-examined his client Brenda McConico at appellant's trial, especially as the matters were so closely related. The insurance policy contained an exclusion clause that denied payment if the policy holder died from "Participation in, or as a result of having participated in the committing of an assault or felony." At the criminal trial, Pickard argued that McConico shot in self-defense and that Morton was the aggressor in the May 23 incident that resulted in his death. In order to preserve the insurance proceeds payable upon Morton's death to Pickard's client Brenda McConico and to avoid the exclusion clause of the policy, however, Pickard was required to take the position in the insurance claim that Morton was not the aggressor in the incident. This position negated McConico's claim of self-defense.

Appellant must show "inconsistent" interests and must demonstrate that the attorney made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other.

CT Page 13938-gs

("Actual conflict of interest is evidenced if, during the course of the representation, the defendants' interests diverge with respect to a material factual or legal issue or to a course of action."). A conflict may arise from a lawyer's simultaneous or successive representation of adverse interests. Whether the representation is simultaneous or successive does not conclusively determine the question of actual conflict, although it is generally easier to prove actual conflict arising from simultaneous representation than from successive representation.

In this case, the record shows that Pickard simultaneously represented conflicting interests. McConico retained Pickard for his criminal defense in May 1983. Pickard represented him at his initial appearance June 3, 1983 and handled his plea of not guilty at the preliminary hearing June 20, 1983. Pickard represented him at the criminal trial January 4-5, 1984 and filed the notice of appeal and a motion for new trial before withdrawing from the case January 24, 1984. Pickard also represented Brenda McConico in the insurance matter during much of that same period.

Moreover, even if Brenda McConico had not testified against her husband, the existence of the exclusion clause in the insurance policy placed Pickard between two clients in adverse positions. A vigorous defense of appellant based on self-defense that resulted in acquittal would necessarily have made Ricky Morton the aggressor in the shooting incident. That would have called into question Brenda McConico's and Rodney Morton's entitlements to benefits payable on the policy. Although the insurance company never attempted to deny payment based on the exclusion, Pickard's duty as an advocate required him to anticipate such a position and to be prepared to argue that the exclusion did not apply in order to secure Brenda's portion. Evidence in the record, which the state does not contest, indicates that had the appellant been acquitted, the insurance company could have recouped the payments under Alabama law based on the exclusion clause. That necessarily conflicted with Pickard's duty at appellant's trial to prove that Ricky Morton CT Page 13938-gt was the aggressor and forced Pickard to choose evidence less convincing for appellant's case of self-defense than was available. Pickard conceded at the evidentiary hearing that he was probably aware of the insurance policy's exclusion clause when he represented appellant in the criminal trial. Despite Pickard's assertion that dual representation did not actually hamper his defense of appellant, nonetheless he was in a situation of inherent conflict. Had Pickard had any doubt about the possibility of conflict, he could have raised it with his client or the trial court, but he did not.

Since Strickland, however, it has been clear that a showing of adverse effect is required. LoConte, 847 F.2d at 754; Lightbourne, 829 F.2d at 1024; Smith, 815 F.2d at 1404; Stevenson, 774 F.2d at 1562-63. A petitioner need not show that the result of the trial would have been different without the conflict of interest, only that the conflict had some adverse effect on counsel's performance. LoConte, 847 F.2d at 754 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).

The petitioner's reliance on Exhibit A found in his brief in petition for Writ of Habeas Corpus dated October 2, 2005 is totally misplaced. Exhibit A shows that Salina Barnhill, Admx, filed suit against the petitioner in the Judicial District of New London on January 25, 1999 with a return date of February 23, 1999. The last action date was March 18, 2003. The disposition date was July 15, 2002. She was represented by the law firm of Suisman, Shapiro, Wool, Brennan Gray. Nathan Dull, the petitioner herein and the defendant in the New London lawsuit was represented by Attorney John Williams in the New London lawsuit who also represents the petitioner in the habeas trial. There is absolutely no evidence to show that the public defender who represented the petitioner in his criminal trial had anything whatsoever to do with the civil action brought in New London County. There is absolutely no evidence that during the period of time that the public defender represented the petitioner that the public defender attempted to or did in fact represent Salina Barnhill, Admx in the New London suit against the petitioner. In the case before this court, the petitioner CT Page 13938-gu has failed to prove that the public defender actively represented conflicting interests. Further, there is absolutely no evidence that an actual conflict of interest adversely affected his lawyer's performance.

(d) Strouse v. Leonardo, supra.

In Strouse, the court held in part as follows:

Strouse's claim that Cally's prior representation of Mrs. Strouse gave rise to a conflict of interest in his representation of Strouse is without merit. Cally's work for Mrs. Strouse, in addition to drafting her will, consisted of occasional real estate work and handling small matters relating to her divorce. We can discern no way in which this prior work for Mrs. Strouse created a conflict in Cally's representation of Strouse at his murder trial. See, e.g., Kirkpatrick v. Butler, 870 F.2d 276, 284 (5th Cir. 1989) (no conflict where defense counsel had friendship with and had in the past represented members of murder victim's family), cert. denied, U.S. 110 S.Ct. 854, 107 L.Ed.2d 848 (1990); Crisp v. Duckworth, 743 F.2d 580, 588 (7th Cir. 1984) (no conflict where defense counsel represented murder victim in unrelated criminal action and informed defendant of the prior representation), cert. denied, 469 U.S. 1226, 105 S.Ct. 1221, 84 L.Ed.2d 361 (1985). Moreover, as one court has pointed out, such representation may, under some circumstances, be desirable. See Kirkpatrick, 870 F.2d at 284. Strouse could well have thought that the jury would look favorably upon his choosing his mother's lawyer to defend him.

We cannot as easily dismiss Strouse's claim that Cally labored under an actual conflict of interest because he allegedly hoped to become executor upon Strouse's conviction and thus obtain executor fees. Cally's post-trial conduct in seeking to obtain testamentary letters as alternate executor could suggest that Cally's loyalty to Strouse, who was named in the will as primary executor, had been undermined. Nonetheless, on the state of the record before us, we conclude that Strouse has not yet satisfied the requirement of showing an actual CT Page 13938-gv conflict that adversely affected his lawyer's performance.

Strouse argues that in determining whether there was an actual conflict of interest in this case "it is immaterial whether Cally succeeded in seizing the executorship; his belief that he could become executor controls," and that we need only look at "what Cally believed to be his pecuniary interests when he represented [Strouse]." We disagree with this argument.

We cannot say on the basis of this record that Cally, either objectively or subjectively, labored under an actual conflict of interest. First, objectively, it was far from certain that Cally would be appointed executor if Strouse was convicted. As the district court noted, the will provided that Cally would be appointed executor only if Strouse predeceased his mother.

The evidence of a subjective conflict on Cally's part is similarly equivocal. The most serious indication that Cally was anticipating appointment as executor is his actions in seeking that position by filing papers with the Surrogate's Court. However, as respondent argues, Cally's motive in applying for the executorship may have been to expedite the distribution of the estate assets. This claim is not implausible. Cally waited more than eight months after the conclusion of the trial before applying for the executorship.

However, Cally's post-trial conduct in seeking the appointment raised a sufficient threat of conflict so that this claim should not have been summarily dismissed by the district court. [Citations omitted.] Where a habeas petitioner alleges facts that, if proven, would entitle him to relief, a federal court "must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court." [Citations omitted.] No hearing was ever held on this issue in state or federal court.

CT Page 13938-gw

Accordingly, we vacate the denial of Strouse's petition to the extent it denied, without an evidentiary hearing, Strouse's conflict of interest claim. On remand, the district court should conduct a hearing to determine whether an actual conflict existed. The hearing should develop the circumstances surrounding Cally's application for appointment as executor in greater detail. As Strouse's counsel indicated at oral argument, Cally's files may be helpful in determining whether Cally, at the time of trial, expected to secure the executorship through a conviction.

The claim of the petitioner that his public defender labored under a conflict of interest as the result of having previously represented the mother of a minor child who was the child of the deceased does not in any way create a conflict of interest.

As opposed to the facts in Strouse, in this case there is no evidence that the petitioner's public defender ever represented Salina Barnhill, Admx, in her New London county civil claim against the petitioner or ever anticipated representing her in that claim. In the case before this court, the petitioner has failed to prove that his public defender "actively represented conflicting interests" and has failed to prove that "an actual conflict of interest adversely affected his lawyer's performance."

(e) People v. Coslet, supra.

In People v. Coslet, the court held in part as follows:

Defendant's right of survivorship to properties held by her and her husband as joint tenants was barred by the trial court during the settlement of Jackie Lloyd Coslet's estate as a matter of public policy because of her conviction for voluntary manslaughter. Consequently, her conviction resulted in her husband's interests in certain properties becoming a part of his estate rather than passing to her as the surviving joint tenant. Therefore a controversy arose, as defendant has suggested in her brief, as to whether CT Page 13938-gx the defendant was entitled to inherit through the estate because of her conviction.

Mr. Lee, as attorney for the administrator of the estate of Mr. Coslet, had a duty to collect all of the assets he could muster and distribute them to the heirs, since Mr. Coslet died intestate. Defendant was not his sole heir; there were others. Her conviction at least raised the possibility that the estate would be enriched. This court holds that he therefore was in a conflict-of-interest position in defending her from the charge of murdering her husband — the charge that led to her conviction of voluntary manslaughter.

Testimony also established that Mr. Lee was awarded $1,000 as a fee for acting as the attorney for the administrator of Mr. Coslet's estate even though a normal estate of this size would generate a fee of only $500.

The facts in Coslet are also totally dissimilar from the facts in this habeas case. There is no evidence in this case that the public defender who represented the petitioner had anything whatsoever to do with the civil action brought in New London County against the petitioner. In the case before this court, the petitioner has failed to prove that his public defender "actively represented conflicting interests" and has failed to prove that "an actual conflict of interest adversely affected his lawyer's performance."

2. THE PETITIONER'S CLAIM THAT ALTHOUGH THERE WAS A SOUND FACTUAL BASIS FOR DOING SO, THE PUBLIC DEFENDER DID NOT CONTEST THE PETITIONER'S FACTUAL GUILT BUT INSTEAD ASSUMED HIS GUILT AND PRESENTED ONLY THE DEFENSE OF MENTAL DISEASE OR DEFECT. 3. THE PETITIONER'S CLAIM THAT HAD THE PUBLIC DEFENDER CHALLENGED THE STATE'S ABILITY TO PROVE THAT THE PETITIONER WAS THE PERSON WHO COMMITTED THE HOMICIDE IN QUIESTION, IT IS PROBABLE THAT THE STATE WOULD HAVE BEEN UNABLE TO PROVE ITS CASE BEYOND A REASONABLE DOUBT AND THE PETITIONER WOULD HAVE BEEN ACQUITTED.

The court finds the following facts as found by the Appellate Court in CT Page 13938-gy State v. Dull, 59 Conn.App. 579 (2000):

The court reasonably could have found the following facts. The defendant had a long history of mental instability and substance abuse prior to the victim's murder. In the summer of 1990, the defendant enlisted in the United States Marine Corps and began basic training at Parris Island. Thereafter, he was sent to Okinawa, where he experienced psychological and behavioral problems that resulted in his hospitalization at Bethesda Naval Hospital and treatment with antipsychotic medications. In the fall of 1992, he was discharged from the marines and classified as being 50 percent mentally disabled from paranoid schizophrenia, which entitled him to receive disability benefits. Thereafter, the defendant's condition had worsened and he was reclassified as being 100 percent mentally disabled as of September 1995.

In the fall of 1996, the defendant moved to Groton. The victim and his friend, Richard Vanenburg, were crack cocaine dealers from Brooklyn and occasionally stayed at the defendant's home. The defendant sometimes purchased cocaine from the victim and Vanenburg with his monthly disability check or obtained the drug in exchange for allowing them to use his apartment.

At approximately 8 a.m. on January 20, 1997, Vanenburg went to the defendant's apartment for a prearranged meeting, but the defendant's car was not in the parking lot. Vanenburg returned at 9 a.m. with a key to unlock the door. He entered the apartment where he discovered the victim's body on the bathroom floor. The evidence suggested that the victim died from multiple blows to the head and face by a baseball bat.

The defendant was located several hours later in Rhode Island, where he was interviewed by a detective. Although he admitted to using marijuana and crack cocaine on the day of the murder, he did not admit to killing the victim. Forensic evidence linked the defendant to the killing, however, and, subsequently, CT Page 13938-hz he was charged with murder.

The court also finds the following additional facts. The petitioner's public defender believed that the state had a strong circumstantial case against the petitioner and had enough evidence to convict him. The state's theory was that the petitioner had killed the decedent with a baseball bat and there was a great deal of blood splatter evidence in the petitioner's apartment. There was evidence that the petitioner's blood splattered clothes with the blood type and enzyme marker of the decedent were found secreted in a plastic bag in a stone wall in a small town in Rhode Island on the property or nearby the property of a friend of the petitioner's, a Michael Anderson. There was evidence that the petitioner had lied about phone calls that he had made. The petitioner had told the police during an interview that he had dropped the victim off at the petitioner's apartment sometime around midnight and that he, the petitioner, never went into the apartment. Telephone records contradicted those statements made by the petitioner to the police. The petitioner had told the police that he and the victim had gone to New York and that upon their return he dropped the victim off at the petitioner's apartment and went directly to Rhode Island to Mr. Anderson's house. The state had evidence that there was a time when the petitioner was at his own apartment and that he made a phone call from his apartment to Rhode Island hours after he said he would have arrived in Rhode Island. There was a witness who received the phone call and said that the petitioner called in the middle of the night looking for Michael Anderson's phone number. Sometime during the commencement by the public defender's representation of the petitioner, the state provided the public defender with an arrest warrant application. The information in that arrest warrant application was one of the items the public defender considered in advising the petitioner not to contest his factual guilt. The bag that was found in the stone wall near Michael Anderson's property contained a pair of pants with blood spatters and a pair of Fila sneakers. There were also footwear impressions in the blood on the floor of the petitioner's apartment. Those impressions matched the size, shape and sole impressions of the Fila sneakers that were found in CT Page 13938-ha the bag by the stone wall.

The court finds that there was not a sound factual basis to contest the petitioner's factual guilt. The court finds that had the state's ability to prove that the petitioner was the person who committed the homicide been challenged that the state would have been able to prove its case and the petitioner would have been found guilty. The petitioner, with the benefit of hindsight, would now claim that his attorney should have required the state to prove that he had committed the crime in question and that his failure to do so constitutes ineffective assistance. The petitioner would have this court do exactly what Strickland cautions should not be done. Strickland cautions that the role of the court in an ineffective assistance claim is to be highly differential to counsel's performance. The court should not second guess counsel's assistance after conviction and to conclude that particular act of counsel was unreliable after the conclusion of the trial. The court should make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances of counsel challenged conduct and evaluate the conduct of counsel's perspective at the time.

The court finds that in evaluating the conduct of the petitioner's public defender from counsel's prospective at the time in recommending that the petitioner not challenge the state to prove its case, that that recommendation falls within the wide range of reasonable professional assistance and was made in the exercise of reasonable professional judgment.

4. THE PETITIONER'S CLAIM THAT THE PUBLIC DEFENDER WAIVED THE PETITIONER'S RIGHT TO A JURY TRIAL WITHOUT A KNOWING, VOLUNTARY OR INTELLIGENT WAIVER OF THAT RIGHT BY THE PETITIONER.

The court finds that the petitioner's public defender did not waive the petitioner's right to a jury trial. The waiver of a right to a jury trial was done by the petitioner and the petitioner only.

5. THE PETITIONER'S CLAIM THAT AT THE CT Page 13938-hb PETITIONER'S TRIAL THE PUBLIC DEFENDER PERMITTED EVIDENCE ADVERSE TO HIS CLAIM THAT THE PETITIONER WAS NOT GUILTY BY REASON OF MENTAL DISEASE OR DEFECT, TO BE INTRODUCED WITHOUT THE TESTIMONY OF THE WITNESS OFFERING SUCH EVIDENCE ALTHOUGH HE COULD HAVE PRECLUDED SUCH EVIDENCE BY A TIMELY OBJECTION TO IT ON THE GROUNDS OF HEARSAY AND/OR VIOLATION OF THE PETITIONER'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSERS.

The court finds the following additional facts regarding this claim. The petitioner's public defender retained Dr. Peter Zeman, a psychiatrist, and Dr. Frank Stoll, a psychologist. The defense that was presented at the trial was that of insanity. That defense was discussed by the petitioner's public defender with the petitioner on a number of occasions. The theory of defense at trial was that the petitioner suffered a psychotic break that prevented him from appreciating the wrongfulness of his conduct or conforming his behavior to the law. The theory of the defense was that the petitioner suffered from a severe mental illness and that he was not on his medication and the failure to be on his medication was the cause of the homicide that his mental illness legally excused him. In investigating whether or not an insanity defense would be wise, the petitioner's public defender spent a great deal of time talking to the petitioner's mother and father and also talking to a minister who had met the petitioner upon his return from military service and felt like the petitioner was not himself upon his return from the service. The public defender also had military records. Dr. Zeman thought that there was a valid insanity defense. Dr. Stoll did not think there was a valid insanity defense. Dr. Zeman was chosen by the petitioner's public defender because of the respect Dr. Zeman had with the state's attorney's office. He had testified not only for the public defender and other defense lawyers but had also testified for prosecutors. Dr. Zeman was a person who had credibility. The state had reason to believe or had evidence that the petitioner was, at the time of the murder and just prior CT Page 13938-hc to the murder, addicted to crack cocaine. The voluntary ingestion of illegal substances is not a basis for an insanity defense. Dr. Zeman felt very strongly that notwithstanding the petitioner's voluntary ingestion of drugs, that the mental illness was the motivating factor in the killing. A key factual dispute was whether the petitioner's behavior was caused by his mental illness or his addiction to crack cocaine. Dr. Zeman had recommended to the petitioner's public defender that there be a thorough psychological examination and felt that Dr. Stoll should be selected to perform that evaluation. Dr. Zeman referred to Dr. Stoll's evaluation in his own report. The petitioner's public defender knew that if he called Dr. Zeman as a witness, that Dr. Stoll's reports and conclusions would come in through cross-examination. Notwithstanding that, the public defender decided to call Dr. Zeman as a witness because he believed Dr. Zeman would testify very persuasively that the petitioner suffered from a significant mental illness that would rise to the level of a legal defense of insanity. Although Dr. Stoll did not concur, Dr. Zeman felt Dr. Stoll was wrong. The petitioner's public defender believed that Dr. Zeman would testify persuasively in support of his, that is, Dr. Zeman's, own conclusions. One of the reasons Dr. Zeman gave in explaining why he disagreed with Dr. Stoll's finding was because he, Dr. Zeman, knew that Dr. Stoll had not seen the petitioner where the petitioner was psychotic or not on his medication.

The petitioner makes the following argument in his brief in support of petition for writ of habeas corpus.

The psychologist's report which defeated the insanity defense here was obvious hearsay, not admissible for its truth if offered by the state. But the defense attorney introduced the exhibit himself. His claimed "strategic reason" for doing so was his anticipation that the prosecutor would use it to cross-examine his expert witness, Dr. Zeman, and he didn't want to appear to be hiding something. This, of course, is no explanation at all. It is the obligation of every lawyer to object to inadmissible evidence. That report clearly would have been inadmissible for its truth; and it could have been kept out even as CT Page 13938-hd impeachment evidence by utilizing either of two obvious strategies which defense counsel acknowledged at the habeas corpus hearing: (1) elicit an opinion from Dr. Zeman not based in any degree upon the psychologist's report; or (2) retain another expert not tainted by that report. He elected to do neither and never was able to offer any explanation for his failure to do so.

The court is not persuaded by that argument.

(1) The petitioner's argument is that the public defender should have elicited an opinion from Dr. Zeman not based in any degree on the psychologist's report.

The public defender was concerned that if he had tried to do that, that one of the first questions the prosecutor would have asked Dr. Zeman would have been what else he relied upon in coming to his conclusion. As soon as the petitioner's public defender received Dr. Zeman's report, he turned it over to the state pursuant to § 40-18, the rules of practice, since the defendant's public defender intended to call Dr. Zeman as a witness. There is no credible evidence that Dr. Zeman would have rendered an opinion that was not based in any degree upon the report of Dr. Stoll. Dr. Zeman's report itself said that he reviewed the comprehensive psychological evaluation report of the petitioner by Dr. Stoll and that Dr. Stoll had done his evaluation at the request of Dr. Zeman. Dr. Zeman's report also stated in part that in enclosing the report of Dr. Stoll, that the report of Dr. Stoll was meant to be read in conjunction with Dr. Zeman's report.

The public defender believed that the state's attorney who represented the state through cross-examination of Dr. Zeman would be able to introduce the substance of the report of Dr. Stoll. The public defender believed that strategically or tactically that it was wiser to deal with the report of Dr. Stoll on direct examination of Dr. Zeman and present the report through Dr. Zeman and then ask Dr. Zeman why he disagreed with the report of Dr. Stoll. The public defender believed that if the three judge panel felt that the public defender was trying to hide something, that there would be a loss of all credibility in the trial before the three judge panel. The public defender felt confident that Dr. Zeman could deal with the report of Dr. Stoll. He discussed the report of Dr. Stoll at length with Dr. Zeman. The decision was made to try to persuade the factfinders to conclude that Dr. Stoll was wrong in his conclusion.

The petitioner's position that the public defender should have CT Page 13938-he attempted to elicit an opinion from Dr. Zeman not based in any degree upon the psychologist's report or to retain another expert is one that is based on hindsight. It is second-guessing the public defender after the conviction. In evaluating the conduct of the public defender from his prospective at the time of trial, the court finds that his action was sound trial strategy and that he rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

(2) The petitioner claims that the public defender should have retained another expert not tainted by the report of Dr. Stoll.

The petitioner has presented no evidence that another expert would have testified in accordance with the opinion of Dr. Zeman.

The petitioner has also failed to present any evidence that the claimed failure to retain another expert prejudiced the defense.

In conclusion, the court finds that the petitioner has failed to meet both the performance prong and the prejudice prong regarding the claimed ineffective assistance of counsel.

The remaining claims of the petitioner in his writ of habeas corpus are disposed of in Lewis v. Commissioner of Correction, 89 Conn.App. 850, 877 A.2d 11 (2005) where the court stated in part as follows:

In Collins v. Goldberg, 28 Conn.App. 733, 738, 611 A.2d 938 (1992), we held that "[b]ecause the plaintiff failed to brief the other claims set forth in the complaint, the trial court properly considered them abandoned." Similarly, our Supreme Court has stated that reviewing courts "are not required to review issues that have been improperly presented to th[e] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . .

Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court." (Citation omitted; emphasis added; internal quotation marks omitted.) Connecticut Light CT Page 13938-hf Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

On the basis of the principles set forth in Connecticut Light Power Co. and Collins, we conclude that the court properly determined that any allegation raised in the petition that was not briefed was abandoned and waived. We decline to review the substantive merits of the issue.

The court finds that the remaining claims that were not briefed have been abandoned and waived.

ORDER

The petition for a writ of habeas corpus is ordered dismissed.

CT Page 13940-a


Summaries of

DULL v. COMMISSIONER OF CORRECTIONS

Connecticut Superior Court Judicial District of Danbury at Danbury
Oct 27, 2005
2005 Ct. Sup. 13938 (Conn. Super. Ct. 2005)
Case details for

DULL v. COMMISSIONER OF CORRECTIONS

Case Details

Full title:NATHAN DULL v. COMMISSIONER OF CORRECTIONS

Court:Connecticut Superior Court Judicial District of Danbury at Danbury

Date published: Oct 27, 2005

Citations

2005 Ct. Sup. 13938 (Conn. Super. Ct. 2005)