Opinion
KNLCR130123144
10-26-2016
State of Connecticut v. Mozzelle Brown
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR PERMISSION TO WITHDRAW AS APPELLATE COUNSEL
Hillary B. Strackbein, J.
Appellate counsel for the petitioner in the above-captioned matter has filed a motion for permission to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel asserts there is no non-frivolous issue to pursue on appeal. This court has not received any written materials from the petitioner in support of the appeal.
Following a jury trial in the Judicial District of New London, Jongbloed, J., the defendant was convicted of Murder and Conspiracy to Commit Murder in violation of Conn. Gen. Stat. § § 53a-54a(a) and 53a-48a and 53a-54a. He was sentenced to fifty-eight years of incarceration to run consecutively to a separate fifteen-year federal sentence.
The defendant appealed on March 18, 2015. On July 31, 2015, 2139 pages of trial transcripts were completed. On August 10, 2015, the Office of the Chief Public Defender assigned this matter to Attorney Max Simmons.
FACTUAL BACKGROUND
Dr. Eugene Mallove, a noted physicist, was murdered on May 14, 2004. Witness testimony presents the situation surrounding this murder. Chad Schaffer's mother and stepfather were evicted from their rental home at 119 Salem Turnpike in Norwich CT. for nonpayment of rent. They left many items there including two non-working cars. Dr. Mallove owned the home and was there cleaning so he could rent it out. A relative notified Mr. Schaffer's mother that the landlord had a dumpster and was disposing of items left there. She then told Chad to go there to retrieve belongings before they were disposed of. Other testimony indicates there may have been drugs in the garage there belonging to the defendant.
Chad Schaffer and Mozzelle Brown went to 119 Salem Tpke. ostensibly to retrieve belongings but they proceeded to attack Dr. Mallove. They left but subsequently decided to return to make the attack look like a robbery. They returned with Candace Foster, Chad's girlfriend. Ms. Foster testified against her own interest that Dr. Mallove was still alive when they returned and he spoke and begged for help. Instead, they killed him and attempted to make him unrecognizable. Ms. Foster also stated that Mr. Schaffer forced her to participate in hitting Dr. Mallove which she did out of fear after Chad Schaffer hit Ms. Foster to force her participation. They stole some items and the van belonging to Dr. Mallove.
Witnesses testified that a couple of days after the murder Mozzelle Brown stated that " we fubared that motherfucker" referring to Dr. Mallove. Fubar means " fucked up beyond all recognition." Ultimately, all three were arrested. Chad Schaffer and Candace Foster pled guilty. Mozzelle Brown went to trial and was convicted by a jury of Murder and Conspiracy to Commit Murder.
DISCUSSION
The right to appointed counsel for an appeal is available where there exists a non-frivolous claim. Anders v. California, supra, 386 U.S. 744-45; State v. Pascucci, 161 Conn. 382, 385, 288 A.2d 408 (1971). If, after a conscientious examination, the appointed counsel finds the petitioner's case to be wholly frivolous, appointed counsel should so advise the court and request permission to withdraw. Anders v. California, supra, 386 U.S. 744; State v. Pascucci, supra, 161 Conn. 385, Connecticut Practice Book § 43-34.
After a full consideration of all the proceedings the court must decide if the appeal is wholly frivolous. If the court so finds, it may grant counsel's request to withdraw. If the court finds, however, that any of the legal points are arguable on the merits and therefore not frivolous, the court must afford an indigent defendant the assistance of counsel. Anders v. California, supra, 386 U.S. 744; CT. Practice Book § 43-37.
The appellate counsel reviewed over 2000 pages of trial transcripts and nearly 500 pages of trial file and notes and determined that the only matter of meaningful contention involved the motion to suppress the defendant's statements to the police. Upon a conscientious review of the transcripts, trial counsel's notes and file and relevant caselaw, the appellate counsel concluded there are no non-frivolous grounds for appeal and filed a motion to withdraw as appellate counsel pursuant to Connecticut Practice Book § § 43-34, 43-35 and 62-9(d), Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Pascucci, 161 Conn. 382, 288 A.2d 408 (1971).
LAW REGARDING THE MOTION TO SUPPRESS
The defendant had filed a motion to suppress which was heard at the time of trial. Regarding that motion, the trial court pointed out that the controlling Connecticut case regarding the requirements that a defendant be informed of his Miranda rights is State v. Kirby, supra, 280 Conn. 393-94, in which the Connecticut Supreme Court stated:
Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation . . . Thus, in determining whether Miranda rights are required, the only relevant inquiry is whether a reasonable person in the defendant's position would believe that he or she was in police custody of the degree associated with a formal arrest. The defendant bears the burden of proving that he was in custody for Miranda purposes . . . Two discrete inquiries are essential to determine custody: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave . . . The first inquiry is factual, and we will not overturn the trial court's determination of the historical circumstances surrounding the defendant's interrogation unless it is clearly erroneous . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts.(Quoting State v. Turner, 267 Conn. 414, 434-35, 838 A.2d 947 (2004); (emphasis added).
In reaching its decision to deny the defendant's motion to suppress, the trial court in this case plainly stated that it credited the testimony of Detectives Micken and Dolan that the defendant was always free to leave and that they engaged in no restraining, coercive or threatening behavior that would reasonably suggest that the defendant was not free to terminate the conversation at any time. (Tr., 9/30/14, p. 36.) Indeed, it would have been virtually impossible for the trial court to not credit the testimony of Mickens and Dolan since the court had no other evidence before it. The defendant did not testify, call witnesses or submit any documentary or physical evidence of any kind, much less evidence sufficient to establish that the court was " clearly erroneous" in its factual determinations about what actually took place when the defendant made his statements to the police.
The court is required to undertake an assessment of whether the appeal is wholly frivolous independent of appellate counsel's assessment. Connecticut Practice Book § 43-36 states that " the presiding judge shall fully examine the briefs of counsel and of the defendant, and shall review the transcript of the trial. If, after such examination, the presiding judge concludes that the defendant's appeal is wholly frivolous, such judge may grant counsel's motion to withdraw and refuse to appoint new counsel."
The court has carefully reviewed the following:
1. Appellate counsel's motion to withdraw and supporting brief.
2. The entire transcript of the trial which includes over 2, 000 pages.
After review of these materials the court held a hearing regarding this matter on October 26, 2016. The defendant was not present due to his incarceration in Pennsylvania. However, appellate counsel had sent a copy of the motion to withdraw to the defendant and this court gave the defendant an extra 30 days to respond if he chose to do so. Further, appellate counsel spoke to the defendant by telephone and informed the defendant that although appellate counsel would be withdrawing, the defendant could continue his appeal on his own (pro se). The court is satisfied that Mr. Brown first had ample opportunity to respond to the appellate lawyer's motion which was filed on 12/23/15, and also that Mr. Brown is aware he can continue his appeal as a pro se litigant.
CONCLUSION
After a thorough review of appellate counsel's motion and supporting brief, comments by appointed counsel and a careful review of the trial transcript, this court concludes that there are no grounds for appealing the conviction which would not be wholly frivolous. Therefore, in accordance with these findings and conclusions, the motion to withdraw as appellate counsel is granted. It is further ordered that new counsel will not be appointed.
SO ORDERED.