No. CV03-0004175 S
June 8, 2010
SUPPLEMENTAL MEMORANDUM OF DECISION
On March 23, 2010, this court rendered judgment denying the petition for a writ of habeas corpus, as articulated in a memorandum of decision filed with the clerk that date. On March 31, 2010, the petitioner filed a petition for certification to appeal, which this court denied on April 7, 2010. On April 5, 2010, the petitioner filed both a motion to reargue and a motion to admit evidence nunc pro tunc. This court granted both motions on May 10, 2010. On April 26, 2010, the petitioner filed an appeal, which has been docketed in the Appellate Court as Edgar Tatum v. Commissioner of Correction, A.C. 32198. The matter was set down for a hearing on May 25, 2010, at which time the petitioner filed a supplemental memorandum of law in support of the motion to reargue and the parties presented their respective arguments. For the reasons stated more fully below, the court's judgment denying the petition, in particular count eight, remains unmodified.
In count eight of the operative amended petition, the petitioner alleged ineffective assistance by appellate counsel, Sally S. King, Steven M. Barry and Alicia B. Davenport, for their failure to bring a claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), challenging the trial court's intent instruction as embracing both specific and general intent. This court applied the standard enunciated by the Supreme Court in Small v. Commissioner of Correction, 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, U.S., 129 S.Ct. 481, 172 L.Ed.2d 336 (2008), for claims of ineffective appellate counsel. "This requires the reviewing court to [analyze] the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm . . ." (Internal citation and quotation marks omitted.) Moore v. Commissioner of Correction, 119 Conn.App. 530, 535, 988 A.2d 881, cert. denied, 296 Conn. 902 (2010).
The petitioner's supplemental memorandum of law in support of the motion to reargue identifies the following portions of the jury charge:
The court instructed the jury on murder as follows:
In order to find the defendant guilty as alleged by the state of the crime of murder, the state must prove beyond a reasonable doubt the following two elements, which, if established beyond a reasonable doubt, constitute the crime of murder: one, that the defendant intended to cause the death of another person and secondly, that in accordance with that intent, the defendant caused the death of that person. (3/1/1990 TT 109.)
The court proceeded to define intent:
A person acts intentionally with respect to a result or conduct described by a statute when his conscious objective is to cause such result or to engage in such conduct. ( Id., at p. 111.)
The court defined assault in the second degree in its jury instructions as follows:
[A] person is guilty of assault in the second degree when, with intent to cause physical injury to another person, he causes such physical injury by means of a deadly weapon. ( Id., pg. 114.)
The court went on to define intent:
A person acts intentionally with respect to a result or conduct, as I have said before, when his conscious objective is to cause such result or to engage in such conduct. ( Id., at p. 115.)
During deliberations, the court received a note from the jury which read, "[C]ould we hear the part of the charge dealing with how to determine intent . . . (3/2/1990 TT 8.) The court reiterated its over-inclusive definition of intent:
A person acts intentionally with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or engage in such conduct.
Relying on State v. Francis, 246 Conn. 339, 358-59, 717 A.2d 696 (1998), the petitioner argues that these instructions were erroneous because they included general intent and both murder and assault in the second degree are specific intent crimes.
As originally noted in this court's March 23, 2010, memorandum of decision, the trial court gave the following instruction on intent to the jury:
The second element which the state must prove beyond a reasonable doubt is that the defendant, in causing the death of the victim, did so with the intent to cause his death.
Intent relates to the condition of mind of the person who commits the act, that is, his purpose in doing it. Intent is a mental process. A person's intention may be inferred from his conduct. It is often impossible and never necessary to prove criminal intent by direct evidence. Ordinarily, intent can be proven only by circumstantial evidence, as I have explained that term to you. A person acts intentionally with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.
As I have said before, intent is a mental process. To discern what a person is thinking, the question of intent may be determined by considering all of the facts and circumstances leading up to, surrounding and following the events in question. You may consider any statement made and act done or omitted by the defendant, along with all other facts and circumstances in evidence and from those you may infer what his intention was. An intent to cause death may be inferred from circumstantial evidence, such as the type of weapon used, manner in which it was used, the number of shots, the type of wounds inflicted and the events leading to and immediately following the death.
What a man's purpose[,] intention or knowledge has been is necessarily a matter of inference. No person can be able to testily that he looked into another person's mind and saw therein a certain purpose or intention or certain knowledge to do harm. The only way in which a jury can determine what a man's intention or knowledge was at any given time is by determining what the man's conduct was and what the circumstances were surrounding that conduct and from that evidence infer what his purpose, intention or knowledge was. To draw such an inference is not only the privilege, but also the duty of the jury, provided, of course, that the inference drawn is reasonable and it is drawn beyond a reasonable doubt.
In making your determination on the question of intent, you should keep in mind that an intent to cause death does not have to exist for any specified length of time. On the one hand, it may come into existence well in advance of the act causing the death or on the other hand, it may be formulated in a matter of seconds, just before or at the very moment of the commission of the act causing the death.
If you find that the state has failed to . . .
The motions to reargue and admit evidence nunc pro tunc sought to add the missing transcript page on which the intent instruction continued and have the court reconsider the claim. Continuing where the March 23, 2010 memorandum of decision left off, the intent instruction given by Judge Heiman went on as follows:
prove beyond a reasonable doubt — Let me go back. All of these facts, facts that I have talked about, the state claims that you may infer the requisite intent to cause death. Again, what facts you find to be true and what inferences you draw are things totally vested in your good judgment.
You find the state has failed to prove beyond a reasonable doubt that the defendant caused the death of the victim, then you must return a verdict of not guilty with respect to the count of murder. If, however, you find that the state has proven beyond a reasonable doubt, but that the state has failed to prove — Sorry. Let me start that sentence again.
If, however, you find that the state has proven beyond a reasonable doubt that the defendant caused the death of Larry Parrett, but that the state has failed to prove beyond a reasonable doubt that the defendant had the intention to cause his death, then you must find the defendant not guilty.
If, however, you find the state has proven beyond a reasonable doubt, first, that the defendant had the intent to cause the death of the victim, Larry Parrett, and in addition, you find that he, in point in fact, did cause his death, then you may return a verdict of guilty as charged.
That completes the charge with respect to murder.
As this court previously noted, reading the court's entire charge, without artificially isolating the intent instruction at issue from the rest of the charge, this court still fails to see how the jury was somehow misled by the court's intent instruction.
Furthermore, the petitioner cites to State v. Francis, supra, in support of his claim that the jury instruction was defective. The Supreme Court holding in Francis in no way supports the petitioner's claim and argument, as the Supreme Court there noted that "[t]he defendant's claim is foreclosed by our decision in State v. Prioleau, 235 Conn. 74, 321-22, 664 A.2d 743 (1995), wherein we concluded that an instruction, almost identical to that at issue here, did not warrant reversal. In State v. Prioleau, supra, 322, the trial court instructed the jury on the entire statutory definition of intent, referring to both intent to cause a result, death, and intent to engage in proscribed conduct, shooting. Yet, we concluded that the instruction, viewed in its entirety, was not misleading because the trial court `repeatedly instructed the jury that in order to find the defendant guilty of murder, it first had to find that he had intended to cause the death of the victim.' Id. The present case is indistinguishable because, although the trial court provided the entire statutory definition of intent in its instruction, it also repeatedly instructed that in order to find the defendant guilty of murder, the jury had to conclude that the defendant had intended to cause the death of the victim . . ." (Citations omitted.) State v. Francis, supra, 246 Conn. 358.
The instant case is not distinguishable from Francis and Prioleau. Judge Heiman repeatedly instructed the jury that in order for them to find the petitioner guilty of murder, they would have to conclude that the petitioner had intended to cause the death of the victim. Reading the court's entire instruction on the murder charge, now also including page 113, inexorably leads to the identical conclusion this court previously reached: the jury was not misled by the court's instruction.