Hull v. Warden

628 A.2d 32, 32 Conn. App. 170, 1993 Conn. App. LEXIS 329
CourtConnecticut Appellate Court
DecidedJuly 20, 1993
Docket11462
StatusPublished
Cited by27 cases

This text of 628 A.2d 32 (Hull v. Warden) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hull v. Warden, 628 A.2d 32, 32 Conn. App. 170, 1993 Conn. App. LEXIS 329 (Colo. Ct. App. 1993).

Opinion

O’Connell, J.

This is an appeal from the denial of a petition for a writ of habeas corpus. The petitioner claims that the habeas court (1) improperly concluded that the failure of the petitioner’s trial counsel to object to or otherwise address certain rebuttal testimony by the state’s expert psychiatric witness did not constitute ineffective assistance of counsel,1 and (2) abused [172]*172its discretion by failing to consider all of the trial exhibits. We affirm the judgment of the habeas court.

In 1987, the petitioner was convicted of murder, in violation of General Statutes § 53a-54a, arising out of the stabbing of his wife. The conviction was affirmed on appeal. State v. Hull, 210 Conn. 481, 556 A.2d 154 (1989). Because the facts of the crime are detailed in the Supreme Court opinion, we will not repeat them here. For purposes of this appeal it is sufficient to state that it is not disputed that the petitioner killed his wife; the issue is the petitioner’s state of mind at the time of the killing.

At trial, the petitioner called Walter Borden, a psychiatrist, in an effort to establish a defense of extreme emotional disturbance. Borden testified to problems in the petitioner’s background including family abuse as a child, alcoholism, death of his three sons and a history of a dysfunctional relationship with his wife, the victim. Borden diagnosed the petitioner as having a mixed personality disorder with alcoholism. The critical testimony was Borden’s opinion that the petitioner was not “capable of forming a conscious intent to stab his wife on June 19, 1985.”

The state called Donald Grayson, another psychiatrist, to rebut Borden’s opinion. The state’s attorney posed a lengthy hypothetical question to Grayson culminating in a request that Grayson state if he had “an opinion as to whether the defendant at the time of the stabbing was capable of forming a conscious objective to cause his wife’s death; that is, was he capable of forming an intent to kill his wife?” There was no objection and Grayson responded in the affirmative. The petitioner was convicted and, following an appeal, the conviction was affirmed. The petitioner’s subsequent petition for a writ of habeas corpus was denied and this appeal followed.

[173]*173Central to the petitioner’s first claim is his contention that Grayson’s response was an opinion on an ultimate issue in violation of General Statutes § 54-86Í.2 Section 54-86Í provides: “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.” The defendant argues that the failure of his trial counsel to object to Gray-son’s testimony “was clearly below the level of reasonable competence for criminal defense attorneys in 1987; and that his error caused the petitioner to be convicted

The petitioner’s claim is without merit for two reasons. First, Grayson’s response was not objectionable. Grayson merely agreed that the petitioner had the capacity to form an intent to kill his wife at the time of the attack; he did not offer an opinion as to whether the petitioner actually had such an intent. Section 54-86Í, which is to be narrowly construed; State v. Joyner, 225 Conn. 450, 480, 625 A.2d 791 (1993); does not proscribe expert opinion testimony concerning a defendant’s capacity for a certain mental state; it proscribes testimony concerning whether a defendant actually had the relevant mental state at the time the crime charged was committed. State v. Forrest, 216 Conn. 139, 149, 578 A.2d 1066 (1990). Moreover, nei[174]*174ther Grayson’s response nor the state’s question tracked the language of the statute under which the petitioner was convicted. See State v. Raguseo, 225 Conn. 114, 137-38, 622 A.2d 519 (1993) (expert testimony did not violate § 54-86Í even though it closely proximated the statutory language establishing the defense of mental disease or defect because the testimony did not explicitly track the statutory language). Consequently, Grayson’s response was not in violation of § 54-86L

Second, even if we agreed that the petitioner’s attorney could have successfully objected, his failure to do so does not constitute ineffective assistance of counsel. To prevail in such a claim, the petitioner “must show that: (1) his counsel’s performance was deficient in the sense that the counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment; and (2) the deficient performance prejudiced the defense ... in the sense that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citation omitted; internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991), quoting Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

To demonstrate the requisite deficiency of performance, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness. ... In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. [Levine v. Manson, 195 Conn. 636, 688, 490 A.2d 82 (1985)]. Judicial scrutiny of counsel’s performance must be highly deferential, and courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable [175]*175professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). In the present case, the habeas court, after first concluding that Grayson’s testimony was not objectionable, recognized that even if it were objectionable, the petitioner had not overcome the presumption that his counsel was employing sound trial strategy. The court observed that the evidence “clearly shows that [counsel’s action] very well could have been, and probably was, a tactical decision.”

Grayson’s testimony was in rebuttal to the testimony of the defendant’s own witness, Borden, who opined that the petitioner did not have the capacity to form the requisite intent.

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Bluebook (online)
628 A.2d 32, 32 Conn. App. 170, 1993 Conn. App. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hull-v-warden-connappct-1993.