Miller v. Comm'r of Corr.

154 Conn.App. 78

105 A.3d 294

Khari MILLER

v.COMMISSIONER OF CORRECTION.

No. 35788.

Appellate Court of Connecticut.

Argued Sept. 11, 2014.

Decided Dec. 9, 2014.

Michael D. Day, Plainville, for the appellant (petitioner).

Maria del Pilar Gonzalez, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and SHELDON and SULLIVAN, Js.

Opinion

SULLIVAN, J.

The petitioner, Khari Miller, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying the petition for certification to appeal and improperly determined that (1) his trial counsel rendered effective assistance despite failing to “properly and adequately develop and raise a claim of self-defense at the petitioner's underlying criminal trial,” specifically, by failing to call the petitioner to testify; (2) his trial counsel rendered effective assistance although he did not object to or otherwise challenge the trial court's initial jury charge on intent; and (3) his appellate counsel rendered effective assistance despite failing to raise a claim of instructional error on direct appeal with respect to intent. We agree that the court abused its discretion in denying certification to appeal. Nevertheless, we conclude that the court properly determined that the petitioner failed to prove that either trial or appellate counsel rendered ineffective assistance. Accordingly, we affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner's appeal. In 2000, following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a–54a and possession of a weapon in a motor vehicle in violation of General Statutes § 29–38. The trial court imposed a total effective sentence of fifty years incarceration. This court affirmed the judgment of conviction on direct appeal. State v. Miller, 67 Conn.App. 544, 787 A.2d 639, cert. denied, 259 Conn. 923, 792 A.2d 855 (2002). The petitioner subsequently petitioned our Supreme Court for certification to appeal. On February 6, 2002, the Supreme Court denied the petition. State v. Miller, 259 Conn. 923, 792 A.2d 855 (2002).

On direct appeal, this court noted that the jury reasonably could have found the following facts: “On the night of October 1, 1998, the [petitioner] and two others were talking in the front yard of a house on Burnham Street in Hartford. Shortly before midnight, the victim drove up to the house. He parked, leaving his three year old son in the car, and joined the men. The victim initially was calm, but soon thereafter began to shout at the [petitioner].

“After three to five minutes, the conversation turned violent, and the [petitioner] shot the victim in the neck from a distance of four or five feet. The victim ran to his car and began to drive away, but crashed into a nearby fence. He died shortly thereafter as a result of the shooting. The police considered the [petitioner], who had left the scene, to be a suspect.

“The next day, October 2, police officers saw the [petitioner] getting into a car. They stopped the car and arrested him pursuant to an outstanding warrant related to an alleged felony murder committed on January 25, 1998. The [petitioner] was taken to the police station for questioning and signed a Miranda¹ waiver for the January, 1998 murder. While being questioned about that murder, he made an inculpatory statement about the October, 1998 murder that is the subject of this appeal. The police also found a gun wrapped in a shirt in the backseat of the car [in which the petitioner was apprehended]. They later determined that it was the one used to shoot the victim.” (Footnotes altered.) State v. Miller, supra, at 67 Conn.App. 545–46, 787 A.2d 639.

On November 13, 2012, the petitioner filed his third amended petition for a writ of habeas corpus. In count one, he alleged, inter alia, that his trial attorney, William Shea, had rendered ineffective assistance by (1) failing to call the petitioner to testify in support of his defense at trial and (2) failing to object to the trial court's jury charge on intent. The petitioner claimed that but for his trial counsel's deficient performance, the result of the trial would have been more favorable. In count two, the petitioner alleged that his appellate attorney, Suzanne Zitser, had rendered ineffective assistance by failing to challenge on appeal the trial court's charge on intent. The petitioner claimed that “but for appellate counsel's failure to properly and adequately raise [that issue] on appeal, [he] would have prevailed in his direct appeal.”²

At the habeas trial on November 13, 2012, the court heard testimony from the petitioner, Shea, and Attorney Jeffrey Kestenband, the petitioner's expert witness. In a memorandum of decision filed May 17, 2013, the court, Cobb, J., denied the third amended petition. Thereafter, the petitioner filed a petition for certification to appeal pursuant to General Statutes § 52–470(g).³ The court denied the petition for certification to appeal, and this appeal followed. Additional facts will be set forth as necessary to review each of the petitioner's claims.

I

On appeal, the petitioner argues that the habeas court abused its discretion in denying his petition for certification to appeal. He argues that the question of whether his trial and appellate counsel were constitutionally deficient was not frivolous and, therefore, certification should have been granted. We agree.

In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994), this court adopted the factors identified by the United States Supreme Court in Lozada v. Deeds,

498 U.S. 430, 431–32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. “Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion.... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason ... [the] court could resolve the issues [in a different manner] ... or ... the questions are adequate to deserve encouragement to proceed further.... The required determination may be made on the basis of the record before the habeas court and applicable legal principles.... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Crespo v. Commissioner of Correction, 292 Conn. 804, 811, 975 A.2d 42 (2009) ; see also Simms v. Warden, supra, at 612, 646 A.2d 126.

“In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria identified in Lozada and adopted by this court for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” Taylor v. Commissioner of Correction, 284 Conn. 433, 449, 936 A.2d 611 (2007).

Further, this court has held that it is improper for a trial court to reference in its instructions the portion of General Statutes § 53a–3 (11)⁴ addressing the intent to engage in proscribed conduct where the defendant has been charged with a specific intent crime. See, e.g., State v. Holmes, 75 Conn.App. 721, 736–37, 817 A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003).

Upon review of the three claims raised by the petitioner, we agree with the petitioner that the habeas court abused its discretion in denying his petition for certification to appeal. The petitioner's claim that his trial counsel rendered ineffective assistance in not objecting to the trial court's initial charge on intent, which was subsequently repeated verbatim in its charge in response to a question from the jury regarding the definition of intent, is the kind of claim that warrants further consideration by this court. See Lozada v. Deeds, supra, 498 U.S. at 432, 111 S.Ct. 860.

In the present case, the trial court, Dewey, J., orally instructed the jury on two occasions, reciting the entire definition of intent. The jury was then provided with an exact written copy of these improper instructions. Subsequently, the court correctly instructed the jurors, on approximately nine occasions, that to find the petitioner guilty of murder, they must find that he caused the death of the victim with the specific intent to cause his death. The habeas court acknowledged that, although “it is improper for a court to refer in its instruction to the entire definitional language of § 53a–3 (11), including the intent to engage in conduct, when the charge relates to a crime requiring only the intent to cause a specific result ... a trial court's improper instruction on general intent does not necessarily mean that the jury was misled.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Jurists of reason could disagree as to whether it is reasonably possible that the charge, viewed in its entirety, misled the jury. See State v. Holmes, supra, 75 Conn.App. at 737, 817 A.2d 689. Accordingly, we conclude that the court...