Small v. Commissioner of Correction, No. 17803.

946 A.2d 1203

286 Conn. 707

Anthony SMALL v. COMMISSIONER OF CORRECTION.

No. 17803.

Supreme Court of Connecticut.

Argued October 22, 2007.

Decided May 6, 2008.

Joseph Visone, special public defender, for the appellant (petitioner).

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (respondent).

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The issue in this appeal is whether the trial or appellate counsel of the petitioner, Anthony Small, rendered ineffective assistance in failing to object to, or to challenge on direct appeal, the trial court's jury instructions, which did not include the legal definition of "attempt," when the petitioner was charged with felony murder predicated on the crime of attempt to commit robbery in the first degree. We conclude that any error by the petitioner's trial or appellate counsel did not prejudice the petitioner and, therefore, affirm the judgment of the Appellate Court, albeit for reasons different from those on which the Appellate Court relied.

Our prior decision in State v. Small, 242 Conn. 93, 700 A.2d 617 (1997), sets forth the facts that a jury reasonably could have found. "In October, 1990, the [petitioner] was involved in drug trafficking with his friend, Eric Amado. The [petitioner] and Amado stored drugs at the West Haven apartment of Amado's girlfriend, Joanne Bailey. Bailey shared the apartment with Hope Vaughn, who had been dating the [petitioner]. On October 19, 1990, Vaughn, who was upset over statements regarding her allegedly made by the [petitioner] and Amado, decided that she would `put a stop to it.' Vaughn telephoned a friend, Anthony Young, and asked him to come to the apartment she shared with Bailey. She then opened a window and knocked over some of the apartment's furnishings to make it appear as though the apartment had been burglarized. When Young arrived, Vaughn told him that she had some things to bring out and, after Young had backed his car, a red Toyota Celica, up to the door of the apartment building, she loaded two duffel bags and a small safe containing the drugs into the trunk of the car. The two then drove to Young's apartment in Bridgeport, where they were joined by Peter Hall, Vaughn's former boyfriend.

"Meanwhile, the [petitioner] and Amado returned to the West Haven apartment and discovered that the drugs were missing. The two men immediately began to search for the drugs and for whomever had taken them. They were joined in their search by Joanne Bailey, as well as by two associates, John `John-John' Wideman and David `Chico' Bailey. During the course of their search, the group traveled to Stamford so that Amado could consult with a `voodoo man' of his acquaintance. The `voodoo man' told him that Vaughn had taken the drugs. Joanne Bailey informed Amado that Vaughn might be with a friend, Sarita Malloy, who lived in Bridgeport with Young. The group drove in two cars to Young's apartment, where they found Vaughn, Young and Hall standing outside on the porch. At that time, they apparently did not suspect Young or Hall to have been involved in the theft. Joanne Bailey approached Vaughn and told her that Amado wanted to speak with her. Vaughn went over to the car where Amado was waiting, and when he ordered her to get into the car she complied. The group then returned to West Haven, where they spent the night. Throughout the night, Amado and the [petitioner], along with the other two men, questioned Vaughn as to her knowledge of the missing drugs. Amado threatened to shoot her and, at one point, the [petitioner] tied a sock around Vaughn's head while David Bailey threatened her with a gun.

"The next morning, Joanne Bailey asked neighbors whether they had seen anything suspicious. After being told by a neighbor that Vaughn had been seen loading bags into the trunk of a red Toyota, the [petitioner], Amado, Joanne Bailey, Wideman and David Bailey returned to Young's Bridgeport apartment. The men were armed with automatic or semiautomatic weapons, including Uzis. The [petitioner] carried an Uzi.¹ Upon arriving at Young's apartment, Amado told Young that he had come for his `stuff.' Young told him to calm down and to come inside the house, but Amado began yelling and then began shooting. Young and Hall were fatally wounded, and Joanne Bailey was shot in the back of her left thigh. The [petitioner], Amado, Wideman and David Bailey fled the scene. The [petitioner] subsequently left the Bridgeport area, and moved to Queens, New York, where he remained until his arrest for the murders in 1994." Id., at 97-98, 700 A.2d 617.

"The petitioner was originally charged with one count of capital felony in violation of General Statutes (Rev. to 1989) § 53a-54b (8), two counts of felony murder in violation of General Statutes § 53a-54c, one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a)(2) and 53a-48, and one count of kidnapping in the second degree in violation of General Statutes § 53a-94. He was found guilty of all counts, after a jury trial, except for the count of kidnapping. On direct appeal, the conviction of capital felony was vacated, and the case was remanded for resentencing on the felony murder conviction.... On remand, he was sentenced to a total effective term of forty-five years imprisonment. Thus, after direct appeal, the petitioner avoided a sentence of life imprisonment without the possibility of release...." (Citation omitted.) Small v. Commissioner of Correction, 98 Conn. App. 389, 394-95, 909 A.2d 533 (2006).

The petitioner filed a petition for a writ of habeas corpus on February 2, 2000, in which he "raised seven errors of the trial court, thirteen of trial counsel and five of appellate counsel...." Id., at 394, 909 A.2d 533. The habeas court subsequently granted the petitioner permission to amend his habeas petition to add the two claims at issue in this appeal. First, the petitioner claimed that his trial counsel rendered ineffective assistance when he failed to seek a jury instruction on "[c]riminal attempt" as defined in General Statutes § 53a-49 and failed to object to the trial court's omission of such an instruction in its charge to the jury. Second, the petitioner claimed that his appellate counsel rendered ineffective assistance in failing to raise on direct appeal the issue of whether such an instruction was constitutionally required.

A criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); In re Christina M., 280 Conn. 474, 489, 908 A.2d 1073 (2006). To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both "a `performance prong' and a `prejudice prong.' To satisfy the performance prong, a claimant must demonstrate that `counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed ... by the [s]ixth [a]mendment.' [Id.] To satisfy the `prejudice prong,' a claimant must demonstrate that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Id., at 694, 104 S.Ct. 2052. The claim will succeed only if both prongs are satisfied." Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). It is well settled that "[a] reviewing court can find against a petitioner on either ground, whichever is easier." (Emphasis added.) Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); see also Strickland v. Washington, supra, at 697, 104 S.Ct. 2052 ("a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant").

With respect to the petitioner's claims in the present case, the habeas court found the following facts. "[T]he [trial] court charged that the underlying felony to the felony murder charge was criminal attempt to commit robbery. However, the jury was not charged on the elements of attempt....

"The charge was otherwise in order, and the jury was told in the portions dealing with accessories and conspiracy that it must find that the petitioner acted with the mental state required for the commission of the crime. Then, it was told that in order to convict on conspiracy, at least one conspirator must commit an overt act to further the conspiracy." (Citation omitted.) Without addressing whether either trial counsel's or appellate counsel's failure to except to the charge amounted to ineffective assistance, the habeas court concluded that no prejudice resulted from the trial court's failure to charge the jury on the statutory definition of criminal attempt. The habeas court specifically concluded: "[T]his jury found facts so closely related to those required to find an attempt that the failure to charge on attempt was harmless ....

"Under the circumstances of this case with overwhelming evidence of guilt and the jury's finding that [the petitioner] not only participated in but conspired to commit the underlying offense, the court concludes the inclusion of language treating with `attempt' would have had no reasonable effect on the outcome."² (Citations omitted; emphasis added.) Therefore, the habeas court rendered judgment denying the habeas petition. Thereafter, the petitioner sought certification to appeal from the habeas court's judgment, which the habeas c...