Opinion
CV124004952
03-13-2019
Nabil (Nabeel)[1] KADDAH v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
I. Procedural History
The petitioner was the defendant in two separate matters in the Judicial District of Fairfield in connection with the attempted murder by manual strangulation of one woman and the strangulation killing of a second, both in the early morning hours of the same day. Following a jury trial, where he was represented by Attorney James Ruane, he was convicted of murder, attempted murder, and first degree unlawful restraint and given a total effective sentence of seventy-five years. He appealed those convictions, represented by Attorney Glen Falk, which were affirmed. State v. Kaddah, 250 Conn. 563, 736 A.2d 902 (1999). The petitioner then filed his first habeas corpus petition, TSR-CV01-0807618, where he was represented by Attorney Salvatore Adamo and alleged that Attorneys Ruane and Falk had provided ineffective assistance. That petition was denied following trial by White, J. on December 19, 2003. An appeal was filed, but subsequently withdrawn for unknown reasons. The petitioner then filed his second habeas action, TSR-CV04-0004429, represented by Attorney Joseph Visone, where he alleged that Attorney Adamo had provided ineffective assistance in his first habeas trial. That second petition was denied by Fuger, J., on May 5, 2006, following trial and the decision was ultimately affirmed on appeal. Kaddah v. Commissioner, 105 Conn.App. 430, 939 A.2d 1135, cert. denied, 286 Conn. 908, 943 A.2d 1101 (2008). The self-represented petitioner then filed a third habeas petition, TSR-CV08-4002736, which was dismissed on grounds of res judicata without a hearing pursuant to Practice Book § 23-29(3), Nazzaro, J., on November 26, 2008, a decision which was also affirmed on appeal. Kaddah v. Commissioner of Correction, 299 Conn. 129, 7 A.3d 911 (2010).
The Supreme Court exercised its discretion to transfer the appeal to itself pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.
The present petition was filed on September 28, 2012. The amended petition contained six claims, however, all but claims three and six were dismissed prior to trial. Count three alleged that Attorney Visone had provided ineffective representation, for failing to prove that Attorney Adamo was ineffective, for failing prove that both trial and appellate counsel were ineffective for not properly raising claims regarding the trial court’s jury instruction on mental disease or defect. Count six made the same claim, but with respect to the trial court’s jury instruction on intent. Those claims were tried before Sferrazza, J. in May 2014. Subsequent to the close of evidence, Sferrazza, J. raised the issue of whether those two remaining counts failed to state a claim upon which habeas relief could be granted pursuant to Practice Book § 23-29. More specifically, the Court raised the issue of whether the holding in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992) recognizing a cognizable claim of ineffective assistance against first habeas counsel extended ad infinitum to all future habeas counsel. After allowing the parties the opportunity to submit post-trial briefs, the Court dismissed both counts for failure to state a claim upon which relief could be granted. Kaddah v. Arnone, Commissioner of Correction, Superior Court judicial district of Tolland, Docket No. CV12-4004952 (Sferrazza, S.J., Sept. 29, 2014) . The petitioner appealed, and the Supreme Court reversed and remanded with respect to counts three and six only, and ordered further proceedings in accordance with law. Kaddah v. Commissioner of Correction, 324 Conn. 548, 153 A.3d 1233 (2017) (finding, in pertinent part, that the right to effective representation existed throughout the habeas process).
The parties appeared before the Court on October 2, 2018, for further proceedings on the remanded counts. Both parties waived the right to present additional evidence or witnesses, and stipulated that the matter could be decided on the record that had already been placed before the habeas court during the original trial. In its original return to the amended petition, the respondent pled the special defense of procedural default, asserting that the petitioner had failed to raise his claims regarding the trial court’s jury instructions on appeal or in any prior habeas proceeding. Additional procedural history and facts will be presented as needed throughout this decision.
Decision on the remanded counts was referred to this judge pursuant to Practice Book § 1-22(a).
Without need for excessive discussion, the Court found the allegations of ineffectiveness and evidence at trial sufficient to overcome procedural default and warrant addressing these claims on their merits.
II. Law and Discussion
In the context of cases where a petition for writ of habeas corpus claiming ineffective assistance of trial counsel has been denied, and the petitioner files a subsequent habeas alleging ineffective assistance of habeas counsel, which would legally require the petitioner to also establish that trial counsel was ineffective in order to prevail, an issue that one could claim has already been fully litigated, our Supreme Court has said as follows with regard to the application of the doctrine of res judicata:
[T]he subject of the writ— that is, whether the accused had reasonably competent habeas and trial counsel— are matters that ultimately challenge the underlying conviction ...
To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient ... Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable ... Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.
The respondent raises the claim that res judicata prohibits a second habeas proceeding because the issue of ineffective assistance of trial counsel was already litigated in the first habeas proceeding ... We disagree.
First, the United States Supreme Court has long held that the strict application of the doctrine of res judicata should not control successive petitions for habeas corpus. In Salinger v. Loisel, [ 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924) ], we held that in the federal courts the doctrine of res judicata does not apply to a refusal to discharge a prisoner on habeas corpus; but that in those courts, where the prisoner presents a second petition, the weight to be given to the prior refusal is to be determined according to a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the subject. Wong Doo v. United States, 265 U.S. 239, 240, 44 S.Ct. 524, 68 L.Ed. 999 (1924).
We agree with the Appellate Court that the second habeas petition is not predicated on the same issues addressed in the first petition. Although the petitioner must, by necessity, repeat his allegations of trial counsel’s inadequacy, there may never have been a proper determination of that issue in the first habeas proceeding because of the allegedly incompetent habeas counsel. The claim of ineffective assistance of habeas counsel, when added to the claim of ineffective assistance of trial counsel, results in a different issue.(Citations omitted; internal quotation marks omitted.) Lozada v. Warden, 223 Conn. 834, 842-44, 613 A.2d 818 (1992).
CLAIM THREE— INEFFECTIVENESS FOR FAILURE TO CHALLENGE JURY INSTRUCTION ON MENTAL DISEASE OR DEFECT
In claim three, the petitioner alleges that his prior habeas attorneys were ineffective for failing to show that his trial counsel and appellate counsel were ineffective for failing to challenge the trial court’s instruction to the jury on his defense of mental disease or defect. Specifically, the petitioner alleges that the proper instruction on mental disease or defect should have been, in pertinent part, that "it shall be an affirmative defense that the defendant, at the time of the proscribed act or acts, lacked the substantial capacity as the result of mental disease or defect either to appreciate the wrongfulness of (his/her) conduct or to conform his conduct within the requirements of the law," but that the trial court omitted the "either to appreciate the wrongfulness of (his/her) conduct" portion of the instruction, and prior habeas counsel failed properly raise and litigate a claim of ineffectiveness against trial or appellate counsel for not raising the issue.
"An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension ... In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case ... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge ... The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result." (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284-85, 664 A.2d 743 (1995). If the jury instruction is found to be erroneous, "[w]e must go on to determine whether there is any possibility that this shortcoming in the trial court’s instruction misled the jury to an improper verdict ... The harmlessness of an error in a jury instruction is gauged by reference to both the evidence and issues in the case and the charge as a whole." (Citation omitted.) Id., 288.
Any error in this instruction was harmless, when viewed in context of the evidence and the case as a whole. Id. The evidence of guilt was overwhelming and uncontroverted and the evidence the petitioner offered in the way of this affirmative defense was insufficient to overcome it. The petitioner’s expert witness offered a theory that the petitioner was suffering from hypoglycemia (low blood sugar) brought on by alcohol consumption, which, in combination with epilepsy he developed approximately 8 years before and mild brain damage he’d had since birth, combined on the night of the incidents to cause the petitioner to go into a violent fit, prohibiting him from being able to control his actions, or remember his acts. To put it plainly, however, the testimony was overly credible even on direct examination, and was entirely discredited during the State’s cross. When viewed in light of the substantial evidence of guilt, as discussed further below, any error was harmless and unlikely to have resulted in an improper verdict. Id.
For a few examples, the State forced the witness to admit that he’d authored a letter to petitioner’s trial counsel opining that the petitioner had been "coached" by the police in advance of his audio-taped questioning, that he appeared to be eligible to assert a mental disease or defect defense, after only reading police reports and listening to the interrogation tapes, but months before he ever have actually met or evaluated the petitioner; that he spent only 90 minutes actually meeting with the petitioner before offering his formal opinion, did not take a mental health or physical medical history from the petitioner, and never asked the petitioner what, if anything, he remembered about the events of the evening in question or if he’s actually been coached by the police. The witness was also forced to admit that he could not point to any actual medical evidence where hypoglycemia or the mental state just before or after an epileptic seizure was connected with any violent homicidal conduct. In fact, he admitted that most people in the midst of an epileptic seizure, while they can become disoriented and agitated, often lose the muscle control. Finally, it also came out on cross examination that the petitioner, despite his "brain damage," was described as an overachieving student and athlete through high school, had obtained some college credits, and always held regular employment.
CLAIM SIX— INEFFECTIVENESS FOR FAILURE TO CHALLENGE TRIAL COURT’S JURY INSTRUCTION ON INTENT
In claim six, the petitioner alleges that his prior habeas counsel were ineffective for failing to show that trial and appellate counsel were ineffective for not challenging the trial court instruction on intent. More specifically, the gravamen of his claim is that the trial court gave the jury instructions for both "general" intent and "specific" intent with respect to the crimes of murder, attempted murder and unlawful restraint in the first degree when all of those crimes require specific intent as a state of mind. He also claims that the Court gave the same erroneous instruction after the jury sent out a note asking about the meaning of "intent" during deliberations. The petitioner argues that inclusion of the instruction for "general" intent allowed the jury to find him guilty by finding only that he intended to engage in the particular conduct, such as strangulation of the deceased victim, instead of finding that he specifically intended the ultimate result, the victim’s death, and that his prior attorneys were ineffective for not raising this issue. The respondent denies that the jury was misled by the jury instructions.
An example of the difference is that "general" intent is the intent to engage in certain conduct (to throw a rock), whereas "specific" intent is the desire to achieve a specific result (to break the car window by throwing that rock).
"The [petitioner’s] contention ... that the court’s instructions failed to inform the jury adequately of all the essential elements of the crimes charged raises the possibility of a due process violation affecting the fairness of the trial ... [D]ue process is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of error which may occur to a party upon microscopic examination of the trial record ... Our review of such claims is limited to determining whether, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled." (Citations omitted; internal quotation marks omitted.) State v. McMurray, 217 Conn. 243, 253-54, 585 A.2d 677 (1991). "[I]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury ... [I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge ... The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rule of law ... Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to a proper verdict ... and not critically dissected in a microscopic search for possible error." (Citations omitted; internal quotation marks omitted.) State v. Holmes, 75 Conn.App. 721, 736, 817 A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003). If the jury instruction is found to be erroneous, "[w]e must go on to determine whether there is any possibility that this shortcoming in the trial court’s instruction misled the jury to an improper verdict ... The harmlessness of an error in a jury instruction is gauged by reference to both the evidence and issues in the case and the charge as a whole." State v. Prioleau, supra, 235 Conn. at 288.
The petitioner was convicted of three crimes which required a showing of "specific" intent, murder, attempted murder, and unlawful restraint first degree. As to the murder and attempted murder, the Court finds that the petitioner suffered no prejudice, because the instructions did not "mislead" the jury. Id. As a result, the Court also finds that counsel was not ineffective for failing to object.
During its instructions to the jury, the trial court mentions murder and/or attempted murder on multiple occasions during the charge to the jury. In its initial instruction on murder, the Court specifies that the petitioner "in causing the death of [Ms.] Williamson, did so with the intent to cause her death. In other words, is that what he intended to do, cause her death?" Shortly after that, the Court then provides the jury the complained of definition of "intent," where it reads the jury both the definition for specific intent (to cause a result) and general intent (to engage in conduct. Four paragraphs later, however, as the Court was summarizing the definition of intent, and each other time the Court mentioned murder, it indicated that the intent required was the intent to cause the death of the victim. When instructing the jury as to the crime of attempted murder, the Court also properly instructs them that "the defendant must have acted with the kind of intent required for the commission of the crime for which he was attempting, that is, murder, and therefore, the intent is an intent to kill." In summarizing attempted murder, the Court again, correctly, informs the jury that it must find the petitioner had the specific intent to cause death. Finally, while the petitioner is correct that part of the Court’s response when the jury sent out the question on the meaning of intent during deliberations was to read the jury instructions that included reference to "general" and "specific" intent, the Court finished the instruction with reminding the jury, "but to convict anyone of murder the intent must be to cause death ..." Therefore, while the trial Court may have included the definition for general on two occasions while instructing the jury, the overall instructions did not mislead the jury into believing the petitioner could be found guilty of murder or attempted murder without finding the specific intent to cause death. State v. Holmes, supra, 75 Conn.App. at 736.
Transcript, State v. Kaddah, F02B-CR9440100558 and FB02-CR9940100560, July 25, 1996, p. 982-86, 1012, 1014, and 1030.
Transcript, State v. Kaddah, July 25, 1996, p. 981.
Transcript, July 25, 1996, p. 982.
Do not be confused by the word ‘intent.’ It does not require any specific length of time to form an intent. Intent can be formed in an instant, but to convict anyone of murder, the intent must be to cause death, and in summary, in order for the accused to be found guilty of murder, you must find proven beyond a reasonable doubt that the defendant killed [Ms.] Williamson and that he did so with the specific intention of doing so.
Transcript, State v. Kaddah, July 25, 1996, p. 985.
The first element again is intent. An intent is the act or omission done with the intent to commit some other crime. Thus, the defendant must have acted here with the intent to commit the crime of murder, and specific intent is the intent to kill .
Transcript, July 25, 1996, p. 1061.
Transcript, July 25, 1996, p. 1062.
"At some point, appellate review should consist of more than a numerical count of how many times the instruction was correct rather than incorrect." See, State v. Sivak, 84 Conn.App. 105, 112, 852 A.2d 812, cert. denied, 271 Conn . 916, 859 A.2d 573 (2004).
Even if it were presumed for sake of argument that the trial court’s overall instruction on murder was erroneous, that error was harmless. State v. Prioleau, supra, 235 Conn. at 288. The evidence in this case was overwhelming. There was no question, and no challenge offered at trial, that the petitioner was not the person whom committed the acts in question against the two women. The clothing of both women, who were naked when found, were found in the defendant’s vehicle, and he admits to having been with them. Considering all of the evidence supporting guilt that could reasonably have been found by the jury, the only real issue for it to decide was whether there was any support in the evidence for any of the petitioner’s defenses— mental disease or defect or extreme emotional disturbance. When viewed against all of the other evidence in this case, the evidence offered at trial in support of these defense theories was insignificant and not entirely credible. So, even if there were error in the instruction, the Court finds no "possibility that this shortcoming in the trial court’s instruction misled the jury to an improper verdict ..." Id.
To put it plainly, the expert witness, and the testimony he offered in support of the defenses at trial, were thoroughly discredited on cross examination.
The petitioner also complains that prior habeas counsel were ineffective for not proving that trial and appellate counsel were ineffective for failing to challenge the trial court’s jury instruction on unlawful restraint in the first degree for the same reason— that the instruction allowed the jury to convict if they found he had the general intent to engage in conduct, rather than with the specific intent to restrain the victim’s liberty. Here, trial court only instructed the jury, or otherwise specifically mentioned this charge, on one occasion, which is when the jury was given their instruction on the elements of the offense. While the initial instruction directing the jury that is must find that the petitioner acted with "specific intent" is correct, unlike the situation with the murder and attempted murder charges, there was no other reference to this crime, or to the intent required for conviction, throughout the remainder of the jury instructions. Also unlike the murder-related charges, there was no follow-up reference redirecting the jury to the need to find "specific" intent in order to find the petitioner guilty of unlawful restraint first degree after the trial court responded to the jury’s question on the meaning of intent.
Transcript, State v. Kaddah, July 25, 1996, p. 988-91.
This case is somewhat analogous to that of State v. Youngs, where the trial court in that case referred the jury back to its "prior instructions on intent," but which prior instructions included instructions on both general and specific intent. State v. Youngs, 97 Conn.App. 348, 904 A.2d 1240, cert. denied, 280 Conn. 930, 909 A.2d 959 (2006). In Youngs the court found that "[t]he [trial] court’s reference to its previous instruction, without indicating whether it was referring the jury to its instructions on the element of specific intent or general intent, [was] ... problematic." Id., 359. This case is similar, because the trial court’s response to the jury’s question did not clarify whether "specific" or "general" intent applied to any particular crime, other than those related to murder. Id. This, however, does not end the analysis. Id.
"When a jury is misinstructed on an essential element of a crime and a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed ... Further, [an erroneous jury instruction] constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error ..." Id., 361 (citing, State v. Padua, 273 Conn. 138, 166-67, 869 A.2d 192 2005). "The court’s reference to its previous instructions on the element of intent within the same charge was a misinstruction, not an omission. Further analysis ... therefore, requires us to examine whether the ‘record developed at trial establishes guilt beyond a reasonable doubt ...’" State v. Youngs, supra, 97 Conn.App. at 361.
In the present case, any error in the jury instructions relating to the crime of unlawful restraint first degree was harmless, because the evidence of guilt was overwhelming and uncontested. Id. The State needed to prove beyond a reasonable doubt that the petitioner specifically intended to unlawfully restrain the victim (Kollar) in a way that substantially interfered with her liberty by moving her from one place to another or by confining her, and that he did so under circumstances that exposed the victim to a substantial risk of physical injury. The facts which the jury could reasonably have found at trial, were that the petitioner and Ms. Kollar were in his vehicle and she demanded to be paid for the sex they were about to engage in, and he suddenly started choking her with both hands around her neck and ordered her to take her clothes off. She complied and began to remove part of her clothing, when the petitioner reclined the passenger seat and began choking her again, with both hands. The petitioner then repositioned himself to the middle of the front seat and placed his elbow in the victim’s neck. While he was subsequently forcing the victim to give him oral sex, she attempted to open the door, but found that it had been locked. When the petitioner realized she had made an attempt for the door, he grabbed her by the neck, told her to "shut up" when she began to scream, and began striking her in the face. When the petitioner next ordered her to get onto her hands and knees intending to have forced intercourse with her from behind, she took the opportunity to attempt to escape again by partially opening the door, but the petitioner grabbed her by the neck and pulled her back into the car on to his lap, and began punching her in the face, again. This resulted in the victim being oriented so her feet were hanging out of the partially open door, but the petitioner ordered her to put them back into the car. The victim did so, but then made an immediate attempt to jump out of the car again, which the petitioner tried to prevent. As the victim continued to struggle for her freedom, she ended up falling out of the vehicle onto her back with the petitioner kneeling top of her, and he started choking her again with both hands. Only after the victim struck him in the groin did the petitioner release his grip and jump off of the victim, but immediately grabbed her again as she was trying to get away and strangled around her neck until she felt like she was going to pass out. Fighting for her life, she began to scratch and punch the petitioner again, forcing him to release his grip for the final time when she knocked his glasses off of his face. Only then was she able to run to a nearby home to yell for help, and the petitioner fled. Given these facts, which were uncontested, there was more than ample evidence to find that the petitioner "specifically" intended to restrain the victim, that it was against her will, and that she was exposed to a substantial risk of physical harm. As such, any instructional error was harmless. Id., 362. Based on the foregoing, the petitioner suffered no prejudice, even if there was deficient performance, so the claim fails. Lozada v. Warden, supra, 223 Conn. at 842-44.
Transcript, State v. Kaddah, July 16, 1996, p. 254-60.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED.
(Emphasis added.) Transcript, State v. Kaddah, July 25, 1996, p. 983.
It is not enough to show that the [petitioner] acted intending to do some other unspecified criminal act. He must have acted with the same intent, the same state of mind required for the crime of murder which I have just explained to you .(Emphasis added.) Transcript, July 25, 1996, p. 986.