Opinion
No. CV97-0406002 S
June 10, 2003
MEMORANDUM OF DECISION
The petitioner, Dana Mozell, is incarcerated and filed the above-captioned petition for writ of habeas corpus in October 1997. The petitioner was convicted of the charges of possession of narcotics with the intent to sell, in violation of General Statutes § 21a-278, and conspiracy to sell narcotics, in violation of General Statutes § 21a-278 and § 53a-48, after a jury trial. The petitioner was sentenced by the trial court on March 12, 1993, to a total effective sentence of 14 years, execution suspended after the petitioner serves 10 years, followed by 5 years probation. The petitioner's conviction in file CR6-346313 was affirmed on direct appeal. State v. Dana Mozell, 36 Conn. App. 631, cert. denied, 232 Conn. 917 (1995). The defendant was represented by counsel at trial and by the Public Defender's office on appeal.
The petitioner's Amended Petition dated February 19, 2002, was subsequently filed on February 19, 2002 by his Special Public Defender. The respondent, thereafter, filed his Return To Amended Petition; on August 16, 2002. The petitioner's Amended Petition consisting of two counts alleges ineffective assistance of counsel by both trial and appellate counsel.
In Count One, the petitioner alleged ineffective assistance of trial counsel in that: (a) trial counsel did not file and pursue a written motion in limine to exclude evidence of the petitioner's gang affiliation; (b) that trial counsel did not file and pursue a motion in limine to exclude evidence of a co-conspirator's possession of a gun; and (c) that trial counsel failed to request additional peremptory challenges during jury selection.
In Count Two, the petitioner alleges ineffective assistance of appellate counsel in that: appellate counsel failed to raise on appeal the following claims: (a) a claim that the trial court erred in denying the petitioner's motion to sever his trial from the trial of his brother, Troy Mozell; (b) a claim that the trial court erred in allowing evidence of the petitioner's membership in a gang; (c) a claim that the trial court erred in allowing testimony that a co-conspirator possessed a gun; (d) a claim that the trial court erred in denying the petitioner's motion in limine concerning evidence that drugs were "destroyed" by the state; (e) a claim that the trial court erred in permitting testimony concerning laboratory testing of the missing/destroyed drugs; and (f) that the trial court erred in denying the petitioner's motion to exclude the testimony of a witness, whose tape-recorded statement had been lost.
Testimony in the trial on the petitioner's habeas corpus petition commenced on September 27, 2002. After one day of testimony and prior to the commencement of the second day of testimony on December 16, 2002, the petitioner notified the court that he was withdrawing all claims of ineffective assistance of trial counsel contained in Count One, and therefore, was proceeding only on Count Two of his Amended Petition, regarding his claims of ineffective assistance of appellate counsel. The hearing thereafter concluded on December 16, 2002. Thereafter, the parties submitted briefs stating their claims of law, the last of which were filed on April 14, 2003. As the petitioner has withdrawn his claims of ineffective assistance of trial counsel, the court will only consider the remaining claims of ineffective assistance of the petitioner's appellate counsel.
A review of the petitioner's trial transcripts reveals that in early 1991, the New Haven Police were investigating a group of individuals known as the "Island Brothers Gang," who were suspected of selling cocaine at a local housing project. The petitioner's involvement was suspected because he was seen leaving this housing project and thereafter proceeded to a residence at 343 Peck Sweet, New Haven. Subsequently, the petitioner left this location and proceeded to another location where he was observed by the police handing a ziploc bag to another individual. These observations by the police made them suspicious that the petitioner was linked to a drug conspiracy. The petitioner's brother, Troy Mozell, was also a target in this conspiracy; was also under surveillance by the police; and was tried jointly with the petitioner.
At trial, testimony was given that the petitioner's brother had been seen meeting with known drug dealers on many occasions, and that the brother was seen collecting money from another individual in a drug buy. This information was part of the basis for a search warrant for 343 Peck Street, which was the residence of a Milicent Parker. During the search of Parker's residence, the police seized a safe containing 1192 vials of suspected cocaine, as well as numerous empty vials. Parker was arrested and gave a statement implicating the petitioner, his brother Troy and two additional individuals, Ernest Williams and Terrence Thompson, all of whom had access to the area where the cocaine was stored in a safe.
As part of the police investigation, the home of Nicole Lowery was also searched and a hand gun was seized. Lowery gave a taped statement to the police, but the taped statement was erased prior to the trial. Lowery, however, testified at the trial of the petitioner and his brother, and stated that the gun belonged to Williams, who was associated with "Troy," the petitioner's brother. Lowery's testimony was admitted by the court over defense counsel's objection.
Thompson, who also had been arrested as a result of the execution of the search warrant at the Parker residence, gave a statement implicating the petitioner and his brother Troy, as distributors in the cocaine conspiracy. He testified at trial that Parker's residence at 343 Peck Street was used to store and package the cocaine, but he only implicated Troy Mozell, and further testified that he was now unaware of the petitioner's involvement in the conspiracy.
An additional witness for the prosecution, Charles Mack, testified that the petitioner's brother was present the evening the drugs were packaged, but that the petitioner was not present.
At the habeas trial the petitioner's trial attorney testified that the state's case against Troy Mozell was much stronger than the case against the petitioner. The petitioner's attorney moved to sever the petitioner's case from his brother's case on three occasions during trial. The trial court denied each of these motions. Petitioner's counsel testified that he would have "pointed the finger" at the petitioner's brother if he was not forced to go to trial with the petitioner. He conceded that he did not have a strong argument for severance and that his reason in asking for severance was tactical.
Trial counsel also testified that he made numerous objections at trial to references to the petitioner's affiliation with the Island Brothers gang, labeling these reference as more prejudicial than probative. These objections were overruled. Trial counsel testified that he tries to object to anything that he thinks might bring a colorable claim for appeal to preserve them for appellate counsel to pick and choose what might be the strongest or "most likely to be successful."
Trial counsel further explained at the habeas trial that the reason that he did not request that the drugs be tested prior to the discovery that they had been lost or destroyed, was that he had no reason to believe that they were anything but drugs. "The issue was whether they could be tied to my client. I wasn't seeking to preserve additional evidence of the quantity or quality by my own independent expert." He also objected to testimony of the state's forensic expert concerning the alleged drug vials given to the lab and the lab's subsequent testing results. Counsel had moved to suppress this evidence based on the fact that the lab tested only one of the seized 1192 vials for cocaine. The remaining 1191 vials were lost or destroyed by the state prior to the petitioner's trial. The court denied the motion to suppress and admitted the testimony.
Counsel further testified that the trial court erroneously admitted Lowery's statement concerning a co-conspirator's gun which was found during the search of her apartment. Counsel argued that the state had not made a prima facie case tying the gun to the conspiracy, and that the state had not presented a foundation for admissibility of the weapon by tying it to one of the co-conspirators and to the co-conspiracy. The court disagreed and admitted the testimony of Lowery regarding Williams's gun against both the petitioner and his brother Troy. Lowery testified at trial that Williams had left the gun at her apartment two weeks prior to their arrest and that Troy Mozell had accompanied Williams. At trial the state did not present any witnesses to link this gun to the petitioner or his brother. The trial court in denying trial counsel's objection to the admission of this testimony held that it was admissible despite the fact that Lowery's taped statement was erased because Lowery's testimony was not complicated or extensive, and further, that the admission of this testimony was not prejudicial to the petitioner.
Appellate counsel testified at the habeas trial that she has been a public defender since 1978, handling both trials and appeals. She has been an attorney in the Appellate Unit of the public defender's office for over 10 years and has done approximately 100 criminal appeals. After reading trial transcripts and reviewing exhibits, she researches potential issues for the purposes of an appeal.
She testified that she did not feel the denial of the motion to sever was an issue to pursue because she did not feel that the defendants had antagonistic defenses. She did not pursue the gun issue because she felt there was enough evidence to find the gun relevant. She did not pursue the issue of Lowery's erased taped statement regarding the fact that defendant Williams had brought the gun to her apartment because she felt that this issue would not succeed. She did not pursue the references at trial to the gang affiliation because she felt that trial counsel had "imperfectly preserved" the issue and that such evidence was not uncharged misconduct. In her opinion, this type of issue rarely succeeds on appeal since the determining factor is relevance and gang affiliation is not usually found to be irrelevant.
Regarding the issue of the destroyed drugs, she testified that while it is a good issue to argue to a jury, it is not a good appellate issue. She was aware of the case law regarding lost or destroyed evidence and stated that this was not a Morales issue. See State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995), adopting the balancing test concerning lost or destroyed evidence. She explained that even residue of narcotics is sufficient to convict and that the petitioner was not claiming that the lost evidence was exculpatory.
Appellate counsel stated at the habeas trial that the two issues she raised on appeal concerned constitutional issues: jury selection and the jury charge on reasonable doubt. See State v. Dana Mozell, 36 Conn. App. 631, 652 A.2d 1038 (1995), cert. denied, 232 Conn. 917, 655 A.2d 261 (1995). She felt that these constitutional claims had more potential for success versus challenging evidentiary rulings that are non-constitutional and where the test is relevancy.
In support of his claims for ineffective assistance of appellate counsel, the petitioner presented the testimony of Attorney Lori Welch-Rubin as his expert witness. Welch-Rubin testified that she has done approximately 15 to 20 criminal appeals. She reviewed the trial transcript, appellate counsel's appellate brief, the decision in State v. Dana Mozell, supra, 36 Conn. App. 631, 652 A.2d 1038 (1995); the decision in State v. Troy Mozell, 36 Conn. App. 672, 652 A.2d 1060 (1995); and the amended habeas petition. She did not review the trial exhibits or the voir dire from the jury selection process.
Welch-Rubin agreed that the jury was entitled to consider both the trial testimony and the trial exhibits, which included the statement of Charles Mack who stated the petitioner and his brother were both present the evening the packaging of the drugs occurred. However, she testified that appellate counsel should have pursued the issues of admissibility of the gun and corresponding testimony on appeal, as well as, the issue of severance. She conceded that the decision of what issues to pursue on appeal is left to the discretion of appellate counsel, and that she, herself, does not necessarily raise every possible issue on appeal. She agreed that there can be a difference of opinion among appellate counsel as to what issues to pursue on appeal.
I
A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States constitution and article first § 8 of the Connecticut constitution. Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995). In Strickland, the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable . . ." Mezrioui v. Commissioner of Correction, 66 Conn. App. 836, 787 A.2d 3 (2001); citing Strickland v. Washington, supra at 687.
In order to prevail on a claim of ineffective assistance of counsel, the petitioner must show that defense counsel's performance was not reasonably competent or within the range of competence expected of attorneys with ordinary training and skill in criminal law; Strickland v. Washington, supra at 466 U.S. 687-88; and but for counsel's substandard performance, there is a reasonable probability that the result of the proceeding would have been different. Id. at 694; Siano v. Warden, 31 Conn. App. 94, 98, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
"The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness . . . In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 70-72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001); Mezrioui v. Commissioner of Correction, supra at 837-38. The right to counsel, however, is the right to effective assistance and not perfect or error free representation. Commissioner of Correction v. Rodriguez, 222 Conn. 469, 478, 610 A.2d 631 (1992).
The constitutional right to effective assistance of counsel also includes the right to such assistance on the defendant's first appeal as of right. Our courts have adopted the two-part Strickland analysis in the context of a claim of ineffective assistance of appellate counsel. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992). "Thus, since the purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding . . . that `proceeding' must be regarded as the entire continuum of the adjudicatory process, both trial and appeal." (Citation omitted; internal quotation marks omitted.) Id. 460; Crump v. Commissioner of Correction, 68 Conn. App. 334, 791 A.2d 984 (2002).
If the issue not raised by his appellate counsel lacks merit, the petitioner cannot sustain even the first part of the dual burden imposed by Strickland, since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation. Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990); Mozell v. Commissioner of Correction, 51 Conn. App. 818, 820-21, 725 A.2d 971 (1999); Tillman v. Commissioner of Correction, 54 Conn. App. 749, 756-57, 738 A.2d 208 (1999). "While appellate counsel must provide effective assistance, he is not under an obligation to raise every conceivable issue." Mozell v. Commissioner, supra, 51 Conn. App. 822. "It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate assistance of counsel under the sixth amendment. A reviewing court must be highly deferential to counsel's decision and judge the action from the counsel's perspective at the time." Id. at 822.
To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on direct appeal. In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction. Bunkley v. Commissioner of Correction, supra, CT Page 7985 222 Conn. 460-61.
II
The petitioner claims that appellate counsel's failure to raise on appeal the trial court's denial of the motion to sever the petitioner's case from his co-defendant fell below the reasonable standard of competent attorneys in appellate criminal representation and resulted in prejudice to the petitioner. The court disagrees.
"Whether to consolidate or sever the trials of defendants involved in the same criminal incident lies within the sound discretion of the trial court . . . Ordinarily justice is better served where parties are tried together . . . Joint trials of persons jointly indicted or informed against are the rule, and separate trials will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused . . . [T]he phrase prejudicial to the rights of the [accused] means something more than a joint trial will probably be less advantageous to the accused than separate trials." State v. Booth, 250 Conn. 611, 620, 737 A.2d 404 (1999). `The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded." Id. "Such compelling prejudice does not arise where the conflict concerns only minor or peripheral matters which are not at the core of the defense." Id. at 621. "The defendant's mere assertion that intended to blame each other for the crime is not sufficient to overcome the presumption of a joint trial." Id. at 620-21.
Trial counsel was aware that the state had previously moved to join the cases for trial and that the court had granted this motion. Trial counsel claimed that the petitioner would be seeking to call his brother as a witness, and vice-versa, although Troy might wish to assert a fifth amendment privilege. There was no offer as to what Troy Mozell would say or any indication that he had given a statement that would help his brother, the petitioner. The state argued that trial counsel cannot call a witness whom he knows would assert a fifth amendment privilege.
Trial counsel renewed his motion to sever arguing that the state had delayed disclosure of potentially exculpatory information, in that he perceived discrepancies between the disclosed statements of witnesses Terrance Thompson and Charles Mack, when compared to the statement of Milicent Parker. The court had previously denied a motion to suppress this testimony. Trial counsel argued that the testimony of Mack would be "potentially conflicting" with the defense that Troy Mozell's attorney may choose to present for him. Trial counsel's claim was speculative and was denied.
Later, trial counsel moved for severance again, following the testimony of co-conspirator Thompson. Thompson was a part of the Island Brothers gang and had known the petitioner and Troy Mozell for seven years. He testified that he and Williams had brought the safe to Parker's house and that during the week prior to the execution of the search warrant that the petitioner and his brother were involved in the sale of narcotics at the subject housing project. He also testified that Williams and Troy Mozell owned the narcotics and were the "operators" at the project and that others assisted them. The petitioner acted as a look-out to protect the drugs. Trial counsel claimed that this testimony "has just taken Dana [Mozell] completely out of the picture." The trial court disagreed and denied the motion.
Neither the petitioner or his brother testified at trial. Neither presented witnesses to implicate the other. The defense was that the drugs did not belong to either of them. Appellate counsel was not ineffective in not raising this issue on appeal.
III
The petitioner next claims that his appellate counsel was ineffective for not pursuing the claim concerning the admissibility of the gun on appeal. Petitioner argues that the co-conspirator's gun was not properly linked to the conspiracy. The petitioner cites State v. Troy Mozell, supra, 36 Conn. App. 672, in support of his position, which held that the trial court's admission of this same gun evidence was an abuse of discretion and constituted error. The appellate court held that there was no evidence tying the seized gun to the alleged conspiracy. Id. at 673. However the decision also holds that the admission of the gun was harmless error because the case against Troy Mozell was so strong and that the exclusion of this evidence would probably not have affected the outcome of the trial. Id. The petitioner argues that the evidence against him was substantially less, when compared to the evidence against his brother, Troy.
The issue in this habeas petition is whether appellate counsel was reasonably competent in not raising this issue in behalf of the petitioner. Appellate counsel recognized this issue as one of relevancy, and as such, the petitioner would have to prove both trial court error and harm. Using this type of burden in her assessment, the court cannot say that her representation of the petitioner was ineffective. The rulings of the trial court are given great deference when considering issues of relevancy. The petitioner himself cites State v. Coleman, 35 Conn. App. 279, 287-88, 646 A.2d 213 (1994), where the Appellate Court held that the admission of knives not directly linked to the commission of crimes charged was error, but not harmful error. The state in light of this decision affirming the conviction did not choose to contest this analysis further. The defendant Coleman was a defendant in multiple criminal trials. In each case he used a sharp cutting tool to gain entrance to a victim's home and to confront the victim. In each of his criminal cases, the state offered a series of knives seized from his car, even though no one particular knife could be linked as the tool used in the crime. In State v. Coleman, supra, 35 Conn. App. 279, the admission of the knives was held to be harmless error. However, in State v. Coleman, 42 Conn. App. 78, 679 A.2d 950 (1996), the same evidence was ruled to be reversible error in another of Coleman's trials. In reviewing the Appellate Court, the Supreme Court determined that the same evidence was relevant and reversed the Appellate Court. State v. Coleman, 241 Conn. 784, 699 A.2d 91 (1997). This recitation of the Coleman decisions illustrates the choices confronting appellate counsel when choosing whether or not to raise the gun issue in the petitioner's appeal. Clearly appellate counsel was reasonable in her assessment not to pursue this claim.
When viewing this evidence in light of the other evidence against the petitioner, it can be said that the petitioner's participation in the drug conspiracy was well proven. Parker, Thompson and Mack, other co-conspirators linked the petitioner to the drug activity, as did Detective Kendall of the New Haven Police Dept. The testimony of Lowery regarding the gun was not stressed as relating to the petitioner particularly. An analysis of all of the evidence does not show that the evidence of the gun was so clearly harmful error, as to require his appellate counsel to raise this issue.
IV
The petitioner argues that his appellate counsel was ineffective in not raising the issue of gang affiliation. The state claimed that there was a charge of conspiracy, that members of this group had an allegiance to the gang, and that this allegiance to the Island Brothers helped bond the conspiracy together. Co-conspirator Thompson identified himself, the petitioner and his brother and the other conspirators as members of this gang.
It is well settled that questions of relevance are committed to the sound discretion of the trial court. State v. Talton, 63 Conn. App. 851, 856, 779 A.2d 166 (2001). While the evidence may be prejudicial in nature, it is admissible if the trial court determines that its probative value, for one or more purposes for which it is admissible, outweighs its prejudicial impact onto accused. State v. Dana Mozell, 40 Conn. App. 47, 51, 668 A.2d 1340 (1996); cert. denied 236 Conn. 910, 671 A.2d 824 (1996).
State v. Mozell, 40 Conn. App. 47 (1996), was an appeal of the petitioner's conviction for being an accessory to manslaughter in the 2nd degree and conspiracy to commit murder. Evidence of the petitioner's gang membership was admitted over the petitioner's objection regarding relevancy.
The references to gang membership were not expanded beyond the issue at trial which concerned narcotics trafficking. There were no references to any other illegal activities that might constitute "uncharged misconduct," or undue prejudice concerning criminal activity outside of the context of narcotics. Appellate counsel did not err in determining that the trial court's admission of this gang membership evidence was relevant, and thus, she did not err in contesting the trial court's ruling.
V
The petitioner's next claim is that his appellate counsel rendered ineffective assistance of counsel to him when she failed to raise on appeal the trial court's denial of the petitioner's motion in limine seeking to exclude evidence of drugs destroyed by the state and the laboratory tests confirming said drug substances.
The police seized 1192 vials of a white powder substance when executing the search and seizure warrant at Milicent Parker's residence. The police thereafter sent the vials to the state's forensic laboratory for testing. The laboratory tested one vial which showed positive results for cocaine. The remaining 1191 vials were lost or destroyed by the state prior to trial. The lab was then given empty vials from the same seizure. Testing on these vials revealed the presence of cocaine residue. The petitioner's trial counsel filed a motion in limine to suppress this evidence and also moved to exclude the testimony of the Doctor Milzoff from the forensic lab concerning this evidence. Counsel asserted that the doctor could not testify or give a final report because he could not locate the evidence. Habeas counsel and the petitioner now argue that the admission of this evidence by the trial court created substantial prejudice to the petitioner. See State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988). The jury was allowed to hear that 1192 vials were seized and one vial tested positive for cocaine. The jury was then free to conclude that even though the remainder of the vials were not tested and could not be examined, that all of the 1192 vials were cocaine. The petitioner concedes that a General Statutes § 21a-278 does not require proof of possession of a large quantity of cocaine, but extreme prejudice resulted to the petitioner from this unreliable evidence and has resulted in a substantial injustice.
Sec. 21a-278. (Formerly Sec. 19-480a). Penalty for illegal manufacture, distribution, sale, prescription or administration by non-drug-dependent person.
(a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years, or (2) such person's mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.
(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years, or (2) such person's mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.
Trial counsel testified at the habeas trial that he did not seek any testing of the evidence prior to being informed that the cocaine was missing. Trial counsel requested that the trial court review State v. Gonzalez, 206 Conn. 213, 224-25, 537 A.2d 460 (1988), and the trial court did so. The court then weighed the various requisite factors, such as the reason for the unavailability of the cocaine; the materiality of the evidence; the likelihood of mistaken interpretation of it by witnesses to the jury; and the prejudice to the petitioner. The trial court then allowed the evidence at trial. This is the same weighing test later adopted in State v. Morales, 232 Conn. 707, 719-20, 657 A.2d 585 (1995).
Appellate counsel pointed out at the habeas trial that the evidence showed that the petitioner did not satisfy the Morales analysis. The drugs were videotaped when seized and photos were available for the jury. A field test analysis was done by the police on at least one randomly selected vial. The empty vials were available and were sent to the lab where they tested positive for cocaine residue. Lastly, the defense at trial for the petitioner and his brother was that the narcotics did not belong to them.
There was no showing that the trial court did not undertake the proper analysis in weighing the various factors. Appellate counsel was not ineffective in her representation of the petitioner in choosing not to pursue this issue on appeal.
VI
The last issue facing the court is whether appellate counsel rendered ineffective assistance of counsel in not raising the issue regarding the trial court's admission of Nicole Lowery's testimony at trial despite that fact that her previously taped statement to the New Haven police was erased prior to trial. The written transcript of that four-page statement was available to Lowery. She did review it and she did state that the transcript was accurate.
The petitioner argues that the trial courts denial of his trial counsel's motion to strike Lowery's statement, due to the destruction of her tape-recorded statement constituted reversible error in accordance with the holding in State v. Williamson, supra, 14 Conn. App. 108, which was affirmed in State v. Williamson, 212 Conn. 6, 562 A.2d 470 (1989). The Williamson decisions found that the New Haven Police Department's continual destruction of evidence after sufficient warnings from the Connecticut courts could be considered conduct performed in bad faith. "This case presents us with no less than our sixth occasion since 1981 to consider whether the New Haven police department's destruction or loss of a witness' statements requires the striking of the witness' testimony in an ensuing criminal trial." State v. Williamson, supra, 212 Conn. 6. See State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988); State v. Santangelo, 205 Conn. 578, 534 A.2d 1175 (1987); State v. Mullings, 202 Conn. 1, 519 A.2d 58 (1987); State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984); State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S.Ct. 1027, 71 L.Ed.2d 312 (1982); see also State v. Sims, 12 Conn. App. 239, 530 A.2d 1069, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987).
In affirming the Appellate Court's decision in State v. Williamson, supra, 14 Conn. App. 108, the Supreme Court stated that "the Appellate Court reversed, reasoning that, because the New Haven Police Department had intentionally and not inadvertently destroyed the tapes after publication of our decision in State v. Milum, 197 Conn. 602, 616, 500 A.2d 555 (1985), the destruction exhibited bad faith. The [Appellate] court then held that because the police had acted in bad faith, the only relevant question becomes what prejudice, if any, the defendant suffered. The court also held that, although the defendant ordinarily must establish that he was prejudiced by the non-production of discoverable material; see State v. Palmer, 206 Conn. 40, 57, 536 A.2d 936 (1988); the burden of proof on the issue of prejudice shifted to the state because the tapes had been destroyed in bad faith." (Internal quotation marks and citations omitted.) State v. Williamson, supra, 212 Conn. 12. "[T]he state should be required to show that the nonproduction of the tape was harmless." Id. at 18.
The court in State v. Williamson, supra, 212 Conn. 12, was requested to determine whether the state was required to prove harmlessness beyond a reasonable doubt but it did not answer that question. Instead the court stated "[W]e need not decide whether the state must prove harmlessness beyond a reasonable doubt under the circumstances present here . . . We are persuaded that the state has not demonstrated that it is more probable than hot that the nonproduction of the [Epps] tape was harmless." Id. at 23. The court then applied the balancing test set forth in State v. Shaw, 185 Conn. 372 (1981) 441 A.2d 561. "In applying the balancing test set forth in State v. Shaw, supra, we are again guided by the direction of the federal courts of the Second Circuit: `[T]he better course to follow is for the Court to make a case-by-case assessment of the [state's] culpability for the loss, together with a realistic appraisal of its significance when viewed in light of its nature, its bearing upon critical issues in the case and the strength of the [state's] untainted proof.'" [ United States v. Grammatikos, 633 P.2d 1013, 1019-20 (2d Cir. 1980)]; see also United States v. Bufalino, 576 F.2d 446 (2d Cir.), cert. denied, 439 U.S. 928 (1978); United States v. Alfonso-Perez, 535 F.2d 1362 (2d Cir. 1976); United States v. Miranda, 526 F.2d 1319, 1327-28 (2d Cir. 1975), cert. denied, 429 U.S. 821 (1976)." United States v. Konefal, 566 F. Sup. 698, 704 (N.D.N.Y. 1983); cf. State v. Santangelo, 205 Conn. 578, 588, 534 A.2d 1175 (1987), (when burden is on defendant he must show "realistic possibility of prejudice"). State v. Williamson, supra at 24.
Regarding the testimony of Lowery, it has been briefly summarized in a preceding portion of this decision. Suffice it to say tat Lowery testified that the gun belonged to co-conspirator Williams, who left it at her apartment two weeks prior to the arrests. When Williams left the gun at her apartment, Williams was accompanied by Troy Mozell, the petitioner's brother. Over the objections of petitioner's trial counsel, the trial court allowed this evidence to be admitted at the petitioner and his brother's trial because the court did not find the testimony of Lowery complicated or extensive. The trial court made a finding that there was no prejudice to the defendant regarding this testimony, despite the fact that Lowery's taped statement had been erased prior to trial.
This identical issue was addressed in State v. Troy Mozell, supra, 36 Conn. App. 672. "It is error to allow into evidence [articles or] testimony concerning articles seized . . . that tend to indicate criminal propensity when those articles are not connected to the commission of the crime charged." State v. Coleman, supra, 35 Conn. App. 287; see also State v. Acklin, 171 Conn. 105, 114, 368 A.2d 212 (1976). We conclude, under the facts of this case, that the trial court abused its discretion in admitting the gun into evidence and allowing the testimony of Lowery concerning the gun. Our analysis, however, does not end here. Having concluded that the trial court improperly admitted the gun into evidence, we must next determine whether this error was harmful. State v. Coleman, supra, 35 Conn. App. 285. We hold that it was not." State v. Troy Mozell, supra 36 Conn. App. 677.
When applying this decision to Dana Mozell, the petitioner, the court has already reviewed the additional evidence presented against the petitioner in a preceding section of this decision, to evaluate the importance of and possible prejudicial impact that Lowery's statement had upon the jury's decision to convict the petitioner. The court finds that there was sufficient additional evidence presented against the petitioner at his trial to justify appellate counsel's decision to not to pursue this claim on appeal.
Lowery's statement implicated Williams and Troy Mozell in the possession of the gun. Lowery's statement did not mention the petitioner. The Appellate Court has held that the admission of the statement against Troy Mozell was not harmful error. It would be difficult for this court to determine that the impact of the admission of Lowery's statement would be harmful error when applied to the petitioner, who wasn't mentioned in the statement. The trial court in admitting the statement of Lowery did consider the claim under the parameters set forth in State v. Williamson, supra, 212 Conn. 6 (1989). The trial court made a finding that the state had successfully established that the defendant (petitioner) was not unfairly prejudiced by the loss of the tape.
State v. Williamson, supra, does not stand for the proposition that every time a witness's statement is destroyed the witness's testimony must necessarily be stricken. The remedy is to be determined by the trial court in evaluating the prevailing surrounding circumstances and factors.
The petitioner has failed to demonstrate that his appellate counsel's performance fell below the standards for reasonably competent counsel in the field of appellate criminal law. The petitioner has not demonstrated that appellate counsel's performance was deficient so as to create a probability sufficient to undermine confidence in the verdict. Bunkley v. Commissioner, supra, 222 Conn. 444.
Accordingly, for the reasons set forth herein, the habeas corpus petition is dismissed.
THE COURT
By Arnold, J.