Reynolds v. Commissioner of Correction ( 2016 )

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RICHARD REYNOLDS v. COMMISSIONER
OF CORRECTION
(SC 19071)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued April 29, 2015—officially released June 28, 2016
John Holdridge, with whom was Paula Mangini
Montonye, for the appellant (petitioner).
Harry Weller, senior assistant state’s attorney, with
whom were Cynthia S. Serafini, senior assistant state’s
attorney, and, on the brief, Maureen Platt, state’s attor-
ney, and Brenda L. Hans and Elizabeth Tanaka, assis-
tant state’s attorneys, for the appellee (respondent).
Opinion
EVELEIGH, J. The petitioner, Richard Reynolds,
appeals from the denial of his petition for a writ of
habeas corpus challenging his sentence of death under
General Statutes (Rev. to 1991) § 53a-46a and his under-
lying conviction for a capital felony under General Stat-
utes (Rev. to 1991) § 53a-54b (1).1 The petitioner was
convicted by a three judge panel and sentenced to death
by a jury for the murder of a municipal police officer,
Walter Williams, Jr., in the early morning hours of
December 18, 1992. On direct appeal, this court affirmed
the petitioner’s conviction and sentence. State v. Rey-
nolds, 264 Conn. 1, 836 A.2d 224 (2003), cert. denied,
541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
The facts relating to the petitioner’s crime, his convic-
tion, and his sentence are set forth in greater detail in
our decision in his direct appeal. Id., 18–24. After we
issued our decision in the petitioner’s direct appeal, the
petitioner filed a petition for a writ of habeas corpus
claiming, among other things, his criminal trial and
appellate counsel rendered constitutionally ineffective
assistance by failing to raise or sufficiently present a
plethora of claims during the criminal proceedings.
After an evidentiary hearing, the habeas court rejected
each of the petitioner’s claims and rendered judgment
denying the petition. The habeas court granted certifica-
tion to appeal from its judgment pursuant to General
Statutes § 52-470 (g) and the petitioner appealed to the
Appellate Court. The petitioner later filed a motion to
transfer the appeal to this court, which we granted. See
General Statutes § 51-199 (c); Practice Book § 65-2.
On appeal, the petitioner raises thirteen separate
issues with the habeas court’s decision. Most of the
issues concern his death sentence, but a few relate to
his capital felony conviction.2 We note at the outset
that, in light of our decisions in State v. Santiago, 318
Conn. 1, 112 A.3d 1 (2015), and State v. Peeler, 321
Conn. 375, A.3d (2016), the petitioner’s death
sentence can no longer stand. Accordingly, we reverse
the judgment of the habeas court with respect to the
petitioner’s sentence. Three claims remain regarding
the underlying capital felony conviction: (1) that the
criminal trial court lacked subject matter jurisdiction
to hear the charges; (2) that his criminal trial counsel
rendered constitutionally ineffective assistance during
the guilt phase of the petitioner’s trial; and (3) that
international law precludes his conviction for a capital
felony. We reject each of these claims and affirm the
judgment of the habeas court with respect to the peti-
tioner’s underlying conviction.
I
The petitioner first claims that the substitute long
form information charging him with a capital felony
failed to describe each and every element of the offense
charged, thus depriving the trial court of subject matter
jurisdiction. The state initially charged the petitioner
with a short form information alleging that he commit-
ted the offense of capital felony in the city of Waterbury
on or about December 18, 1992, in violation of General
Statutes (Rev. to 1991) § 53a-54b (1). The petitioner
later filed a motion for a bill of particulars asking for
more information about the nature of the charge. The
state filed a substitute long form information in
response. The long form information alleged that the
petitioner ‘‘did commit the crime of [capital felony] in
violation of Connecticut General Statutes [Rev. to 1991]
§ 53a-54b (1) in that on or about [December 18, 1992],
at approximately [4 a.m.], at or near the intersection
of Orange and Ward Streets [in] Waterbury . . . the
[petitioner] did commit [murder] of a member of a local
police department, to wit: [Officer Williams] of the
Waterbury . . . Police Department.’’ The parties agree
that the long form information did not allege that Officer
Williams was acting within the scope of his duties at
the time of the offense, one of the elements of a capital
felony under (Rev. to 1991) § 53a-54b (1).
According to the petitioner, the state’s failure to
allege every element of the capital felony offense
deprived the trial court of subject matter jurisdiction
over that charge, thus rendering his conviction and
resulting sentence invalid. In response, the respondent,
the Commissioner of Correction, asserts that the peti-
tioner did not preserve this issue for our review because
he failed to raise this claim before the habeas court,
preventing him from raising it for the first time in this
appeal. The respondent also argues that the petitioner’s
claim, even if raised, cannot overcome the procedural
hurdles required to mount a collateral attack on the
subject matter jurisdiction of the original trial court.3
We do not address the respondent’s arguments about
whether the petitioner is procedurally barred from pre-
senting this collateral attack because, assuming for the
sake of argument that we could properly review his
claim, which presents a question of law; Stepney Pond
Estates, Ltd. v. Monroe, 260 Conn. 406, 417, 797 A.2d
494 (2002); its merits are so obviously lacking that we
have no trouble rejecting it out of hand.
An information need not allege every element of an
offense to invoke the Superior Court’s criminal jurisdic-
tion—it need only allege the statutory citation or name
of the offense, along with the date and place the alleged
offense occurred.4 See, e.g., State v. Commins, 276
Conn. 503, 513–14, 886 A.2d 824 (2005) (rejecting sub-
ject matter jurisdiction challenge when information
failed to allege element of offense because it was ‘‘suffi-
cient for the state to set out in the information the
statutory name of the crime with which the defendant is
charged’’ [internal quotation marks omitted]), overruled
on other grounds by State v. Elson, 311 Conn. 726, 754,
91 A.3d 862 (2014); State v. Crosswell, 223 Conn. 243,
265, 612 A.2d 1174 (1992) (‘‘[i]t is settled law that the
original information, because it set forth by name and
statutory reference the crime with which the defendant
was charged, was sufficient to invoke the jurisdiction
of the court’’); State v. Alston, 141 Conn. App. 719,
732, 62 A.3d 586 (‘‘an information that states the exact
section and subsection of the statute under which a
defendant is charged, as well as the time and place of
the alleged unlawful event, is sufficient to charge a
defendant with such offense’’), cert. denied, 308 Conn.
943, 66 A.3d 884 (2013); State v. Reed, 55 Conn. App.
170, 176–77, 740 A.2d 383 (‘‘The long form information
. . . provided the defendant with the exact section and
subsection of the statute under which he was charged.
. . . Because the information was adequate, we con-
clude that the trial court had jurisdiction over this mat-
ter.’’), cert. denied, 251 Conn. 921, 742 A.2d 361 (1999);
State v. Walton, 34 Conn. App. 223, 227, 641 A.2d 391
(‘‘The original short form information set forth the
crimes with which the defendant was charged by name
and statutory references. The information was suffi-
cient, therefore, to invoke the jurisdiction of the
court.’’), cert. denied, 230 Conn. 902, 644 A.2d 916
(1994); see also State v. Vlahos, 138 Conn. App. 379, 385,
51 A.3d 1173 (2012) (information sufficiently charged
offense when it ‘‘provide[d] the defendant with the stat-
utory section under which he was charged as well as
the time and place of the incident’’), cert. denied, 308
Conn. 913, 61 A.3d 1101 (2013); State v. Akande, 111
Conn. App. 596, 603, 960 A.2d 1045 (2008) (same), aff’d,
299 Conn. 551, 11 A.3d 140 (2011).
Once the state files an information with the required
allegations, the Superior Court’s criminal jurisdiction
is invoked and any claim the information lacks enough
factual detail to allow the defendant to prepare a
defense goes to the sufficiency of the notice given to
the defendant. See, e.g., State v. Alston, supra, 141 Conn.
App. 730–31. The petitioner has not claimed in the pre-
sent case that a lack of factual detail in the informations
prevented him from preparing a defense;5 he claims
only that the trial court lacked jurisdiction.
It follows from our case law that the trial court in
the present case had jurisdiction to hear the capital
felony charge against the petitioner. The state filed a
short form information charging the petitioner with a
capital felony and included the statutory citation for
the alleged offense and the date and place the offense
allegedly occurred. Nothing more was required to
invoke the trial court’s jurisdiction. The fact that the
substitute long form information contained additional
factual allegations relating to some, but not all, of the
elements of the crime had no impact on the trial court’s
jurisdiction. State v. Crosswell, supra, 223 Conn. 264–66;
State v. Walton, supra, 34 Conn. App. 227–28. The peti-
tioner further contends that, under the common law,
failure to allege every element of a crime rendered an
information defective, citing to this court’s decisions
in State v. Tyrrell, 100 Conn. 101, 122 A. 924 (1923),
State v. Keena, 63 Conn. 329, 28 A. 522 (1893), and State
v. Costello, 62 Conn. 128, 25 A. 477 (1892). These cases
do not, however, discuss whether the alleged defects in
the information rendered the trial court without subject
matter jurisdiction to hear the charges. More import-
antly, whatever this court may have held in those cases
about the sufficiency of an information under the com-
mon law, that view is clearly not in accord with our
modern jurisprudence. See, e.g., State v. Commins,
supra, 276 Conn. 513–14; State v. Crosswell, supra, 264–
66. We therefore conclude that the petitioner’s jurisdic-
tional claim is meritless.6
II
The petitioner also claims that his criminal trial coun-
sel did not provide constitutionally adequate represen-
tation during the guilt phase of his criminal trial because
his counsel failed to effectively use the state’s preferen-
tial treatment of Anthony Crawford, who was with the
petitioner when Officer Williams was murdered, to sup-
port the petitioner’s defense. Specifically, the petitioner
asserts that his trial counsel should have brought a
claim of misconduct against the state because the peti-
tioner believes the state improperly granted leniency
to Crawford to induce Crawford to testify against the
petitioner. The petitioner also argues that his trial coun-
sel did not adequately use the state’s favorable treat-
ment of Crawford to challenge Crawford’s credibility
at the petitioner’s trial.7
According to the petitioner, the state could have
charged Crawford with more severe offenses, including
murder and attempted sale of cocaine. Evidence given
at the petitioner’s trial shows that shortly before Officer
Williams was murdered, the petitioner and Crawford
were walking down a street in Waterbury, each carrying
about 175 bags of cocaine worth approximately $3500.
State v. Reynolds, supra, 264 Conn. 18–19. Officer Wil-
liams, who was on patrol in the area, spotted the peti-
tioner and Crawford and ordered them to stop. Id., 19.
Crawford continued walking, but the petitioner stopped
for the officer. Id. Officer Williams began to pat down
the petitioner, an altercation ensued, and the petitioner
ultimately shot and killed Officer Williams. Id., 19–21.
Both the petitioner and Crawford ran from the scene,
but were later apprehended. Id., 20–21.
The state charged the petitioner with the murder of
Officer Williams and charged Crawford with hindering
prosecution based on Crawford’s ‘‘silence’’ about the
petitioner’s involvement in the shooting when police
canvassed the neighborhood shortly after the murder.
Neither of them were charged with any drug crimes.8
Crawford was acquitted of the hindering prosecution
charge after a bench trial on the basis that his ‘‘silence’’
was, as a matter of law, not an act of concealment
under the hindering prosecution statute. Crawford later
testified against the petitioner. The petitioner claimed
that Crawford had shot Officer Williams, but Crawford
named the petitioner as the shooter in his trial testi-
mony. The three judge panel ultimately found that the
petitioner shot Officer Williams. Crawford testified that
the state had neither made a deal with him nor given
any promises in exchange for his testimony.
The petitioner contends that the state could have
charged Crawford as an accomplice in Officer Williams’
murder and for the attempted sale of cocaine, but that
the state did not do so because it had an undisclosed
deal with Crawford to forgo more serious charges in
return for Crawford’s testimony against the petitioner.
The petitioner further claims that the state, as part of
its undisclosed ‘‘ruse’’ to secure Crawford’s testimony,
intentionally bungled its case against Crawford to all
but ensure that he would be acquitted on the hindering
prosecution charge. The petitioner argues that trial
counsel was deficient for failing to argue that the state’s
charging decisions amounted to misconduct because
they ‘‘corrupt[ed] the truth seeking function’’ of the trial.
He also argues that trial counsel should have argued
the existence of a secret deal between the state and
Crawford as a means to attack Crawford’s credibility.
The respondent asserts that there was no misconduct
for the petitioner’s trial counsel to raise, because the
state enjoys broad discretion to charge defendants, and
was under no obligation to bring more severe charges
against Crawford. The respondent also asserts that the
petitioner has provided no evidence that a deal existed
between the state and Crawford, and notes that both
the trial prosecutor and Crawford denied that any deal
existed. Consequently, the respondent argues that the
petitioner’s trial counsel cannot be faulted for failing
to make an issue of any purported deal with Crawford.
We agree with the respondent and reject the petition-
er’s claims.
Before turning to the petitioner’s claims, we observe
that the petitioner’s burden and our standard of review
are explained in detail in Small v. Commissioner of
Correction, 286 Conn. 707, 712–13, 946 A.2d 1203 (2008).
We briefly note that to succeed on a claim of ineffective
assistance of counsel, the petitioner must prove both
that his trial counsel’s performance was constitutionally
deficient and that his defense suffered prejudice as a
result. Id.
As for the misconduct argument, the petitioner has
not shown that his counsel’s performance was deficient
because he has not shown that any misconduct
occurred. Both the decision to criminally charge an
individual and the choice of which crime should be
charged lie within the discretion of the state and are
not ordinarily subject to judicial review. See, e.g., State
v. Kinchen, 243 Conn. 690, 699–700, 707 A.2d 1255
(1998) (explaining in detail reasons for this deference).
To be sure, this discretion is not unlimited. See, e.g.,
State v. Webb, 238 Conn. 389, 518 n.81, 680 A.2d 147
(1996) (state cannot charge out of vindictiveness nor
on impermissible basis such as race, religion or sex);
see also State v. Corchado, 200 Conn. 453, 460, 512 A.2d
183 (1986) (statute permits court to dismiss charges
with prejudice if circumstances are compelling). The
petitioner has not, however, directed us to any author-
ity, and we are aware of none, that the state commits
misconduct if it chooses not to bring the most severe
charges possible against a cooperating witness. To the
contrary, prosecutors frequently show leniency toward
witnesses who cooperate in a prosecution, a practice
that has been upheld by courts time and again. See,
e.g., United States v. Cervantes-Pacheco, 826 F.2d 310,
315 (5th Cir. 1987) (noting that ‘‘[n]o practice is more
ingrained in our criminal justice system’’ than prosecu-
tors giving leniency to testifying witnesses). Further-
more, barring the state from this practice could severely
hinder the state’s ability to gather evidence from copar-
ticipants, who frequently hold the best evidence avail-
able about the crimes charged. See United States v.
Dailey, 759 F.2d 192, 196 (1st Cir. 1985) (noting that
coparticipants are frequently present at crime scenes
and can be most knowledgeable witnesses available).
Without demonstrating any legal basis for a claim of
misconduct, the petitioner has not established that his
counsel were deficient by failing to raise it.
But even if the petitioner could show some form
of misconduct, the petitioner’s claim fails nevertheless
because he has provided no argument whatsoever in
his briefs about how this alleged deficiency prejudiced
him. The petitioner has not provided us any authority
to show what remedy the trial court could have pro-
vided the petitioner had his counsel raised a charge of
misconduct. The petitioner does not suggest—and we
are aware of no authority holding—that the state’s
leniency toward Crawford somehow precluded the
state from charging the petitioner with more severe
crimes than Crawford or required his acquittal. Nor
has the petitioner suggested that leniency by the state
rendered Crawford an incompetent witness.9 Having
failed to provide any argument or authority to support
a finding of prejudice, the petitioner cannot succeed
on his claim based on this alleged misconduct. See
Small v. Commissioner of Correction, supra, 286 Conn.
713 (failure to prove prejudice defeats claim for ineffec-
tive assistance of counsel).
As for the petitioner’s argument that his trial counsel
failed to adequately attack Crawford’s credibility at
trial, we conclude his counsel’s actions were reasonable
and, thus, not deficient. According to the petitioner, his
counsel should have done more to challenge Crawford’s
credibility by arguing the existence of a clandestine
deal. The petitioner faults his trial counsel for not rely-
ing on Crawford’s acquittal on what the petitioner calls
a ‘‘bogus’’ hindering prosecution charge and the state’s
failure to charge Crawford with homicide or drug
charges to argue that the state had ‘‘obviously cut a
deal’’ with Crawford in exchange for his testimony.
It is hardly unreasonable for counsel to choose to
preserve credibility with the finder of fact by declining
to pursue an argument that is supported by nothing
more than conjecture. The petitioner has not cited any
evidence that a deal existed other than mere speculation
based on the state’s lenient treatment of Crawford. One
of the petitioner’s trial attorneys testified that he had
no evidence of any deal and Crawford denied that the
state had made any promises in exchange for his tes-
timony.
The petitioner’s trial counsel also reasonably could
have chosen not to imply the existence of a deal to
avoid raising an unsupported implication that the state
had acted improperly. Had there been a deal, the state
would have been obligated to disclose it. State v. Floyd,
253 Conn. 700, 736, 756 A.2d 799 (2000). Had the state
neglected to disclose the deal initially, it would have
been obligated to correct the record when Crawford
testified that no deal existed. Adams v. Commissioner
of Correction, 309 Conn. 359, 368–69, 71 A.3d 512 (2013).
Thus, to imply that a secret deal was struck is to imply
that the state violated its obligations.
Rather than make such accusations without any sup-
porting evidence, the petitioner’s trial counsel opted
for the eminently reasonable alternative of questioning
Crawford about an unrelated charge pending against
him as a means to suggest that Crawford was lying or
embellishing his testimony because he hoped, even in
the absence of a deal, that the state might be more
lenient in his other case.10 Although the petitioner
claims that his counsel should have exposed to the three
judge panel that Crawford was acquitted of hindering
prosecution because the charge was ‘‘bogus,’’ his coun-
sel reasonably could have chosen to avoid revealing
Crawford’s acquittal, lest it make Crawford appear less
culpable for Officer Williams’ death in the eyes of the
fact finder. We therefore conclude that his trial coun-
sel’s performance was not deficient and we do not con-
sider whether any purported deficiency prejudiced the
petitioner, an element of his claim that, as we have
previously noted, the petitioner did not brief in this
court.11
III
Lastly, the petitioner asserts that the habeas court
improperly concluded that international law did not bar
his conviction for a capital felony. We decline to address
this argument, however, because the petitioner did not
adequately brief it. Although the petitioner makes a
passing statement that his conviction violates interna-
tional law, the petitioner’s claim appears aimed at his
sentence, which is governed by our decisions in State
v. Santiago, supra, 318 Conn. 1, and State v. Peeler,
supra, 321 Conn. 375. The petitioner spends all of his
argument explaining that international law prohibits a
sentence of death, but cites no authority and provides
no argument that international law also prevents a capi-
tal felony conviction, which does not necessarily carry
a sentence of death. See General Statutes (Rev. to 1991)
§ 53a-46a. Consequently, we deem the petitioner’s claim
waived insofar as it challenges his capital felony convic-
tion. Electrical Contractors, Inc. v. Dept. of Education,
303 Conn. 402, 444 n.40, 35 A.3d 188 (2012) (‘‘[c]laims
are inadequately briefed when they are merely men-
tioned and not briefed beyond a bare assertion’’).
The judgment of the habeas court is reversed only
with respect to the petitioner’s claim regarding the sen-
tence of death and the case is remanded to that court
with direction to render judgment granting the petition
for a writ of habeas corpus as to that claim, vacating
the petitioner’s sentence of death, and ordering the trial
court to impose a sentence of life imprisonment without
the possibility of release; the judgment is affirmed in
all other respects.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD and ROBINSON, Js., concurred.
1
The petitioner was also convicted of murder in violation of General
Statutes (Rev. to 1991) § 53a-54a, but that conviction was merged into the
capital felony count.
2
After the habeas trial, but before the petitioner completed briefing this
appeal, the legislature passed No. 12-5 of the 2012 Public Acts (P.A. 12-5),
which abolished the death penalty for crimes occurring after its effective
date. After its passage, the petitioner asked permission to address for the
first time on appeal issues concerning the impact of P.A. 12-5 on his death
sentence. We denied the request without prejudice to the petitioner’s right
to refile after the release of a decision in State v. Santiago, 318 Conn. 1,
122 A.3d 1 (2015), which raised identical claims. This court has released its
decision in Santiago, which concluded that imposing or carrying out a
sentence of death violates article first, §§ 8 and 9, of the Connecticut constitu-
tion. Id., 15–17.
3
Relying on a decision in a civil case, In re Shamika F., 256 Conn. 383,
407–408, 773 A.2d 347 (2001), the respondent argues that the petitioner
cannot collaterally attack the trial court’s jurisdiction unless he first shows
that the jurisdictional defect was entirely obvious, that he was prevented
from raising the claim during the original proceeding, or that justice requires
permitting him to litigate the issue for the first time in the collateral proceed-
ing. Because we do not address the respondent’s procedural objections, we
take no position on the application of these hurdles to a collateral attack
on the original trial court’s subject matter jurisdiction over a criminal pro-
ceeding.
4
This rule is now so well entrenched in our jurisprudence that it is reflected
in the requirements for an information set forth in our rules of practice.
See Practice Book § 36-13.
5
It is unlikely that the petitioner would have succeeded on such a claim.
Even though the informations did not specifically allege that Officer Williams
was acting within the scope of his duties at the time of the offense, the
petitioner contested this very element at his trial. The state specifically
alerted the trial court and the petitioner that the operative information did
not include factual allegations for this element and acknowledged that it
had the burden of proving that fact beyond a reasonable doubt. See State
v. Reynolds, supra, 264 Conn. 28 n.18. The petitioner subsequently moved
for a judgment of acquittal on the ground that the state failed to prove that
element, which the trial court denied. Id. The three judge panel hearing the
case ultimately found that the state had proven this element beyond a
reasonable doubt. It thus appears that the petitioner was fully on notice
that the state would try to prove this element at trial and that he prepared
his defense accordingly.
6
The petitioner has also claimed, for the first time on appeal, that his
trial and appellate counsel’s failure to raise this subject matter jurisdiction
claim during the criminal trial and direct appeal proceedings amounted
to ineffective assistance of counsel. Because the petitioner’s stand-alone
jurisdiction claim is meritless, his related ineffective assistance claim must
also fail.
7
The petitioner also argues that his counsel rendered ineffective assis-
tance with respect to Crawford at the petitioner’s sentencing, but we need
not address that argument in the present appeal in light of this court’s
decisions in State v. Santiago, supra, 318 Conn. 1, and State v. Peeler, supra,
321 Conn. 375.
8
The state did allege, as part the aggravating factors it put forth in support
of its case for applying the death penalty, that the petitioner committed
the murder during the commission of an attempted sale of cocaine. That
allegation related only to enhancement of the petitioner’s sentence, not the
crimes he was charged with committing.
9
Indeed, such a claim would likely fail. We have held that the state is
free to unilaterally choose to show leniency toward a witness, and doing
so does not violate the defendant’s due process rights. See State v. Ferrara,
176 Conn. 508, 513–15, 408 A.2d 265 (1979) (state’s unilateral decision not
to prosecute cooperating witness did not amount to deal that had to be
disclosed to defense). Moreover, the legislature has specifically authorized
the state to seek immunity from prosecution as a means to compel a witness’
testimony. General Statutes § 54-47a.
10
At the time of his trial testimony, Crawford had an unrelated charge of
escape pending against him.
11
The petitioner raises, in his brief, an independent claim alleging that the
habeas court improperly concluded that it could not consider the cumulative
effect of counsel’s errors when considering whether those errors prejudiced
the petitioner’s defense. In support of this claim, the petitioner cites, among
other cases, Kyles v. Whitley, 514 U.S. 419, 436, 115 S. Ct. 1555, 131 L. Ed.
2d 490 (1995), and Strickland v. Washington, 466 U.S. 668, 695–96, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Having concluded that the performance
of the petitioner’s trial counsel was not deficient, however, we need not
address this claim.