Judicial District of Tolland


     Habeas; Death Penalty; Whether Counsel Ineffective in (1) Failing to Advance Claim Regarding Aggravating Factor; (2) Introducing Evidence of Petitioner’s Antisocial Personality Disorder; (3) Failing to Question Prospective Jurors About Racial Bias.  The petitioner was convicted of murder and capital felony for the fatal shooting of a police officer.  The defendant shot the officer after the officer had stopped him for questioning while he was en route to sell cocaine.  A jury sentenced the petitioner to death on finding that the state established an aggravating factor, namely, that the petitioner committed the capital felony during the attempted commission of another felony­—the sale of a controlled substance in violation of General Statutes § 21a-277 (a)­—and that he previously had been convicted of the “same felony.”  See General Statutes (Rev. to 1991) § 53a-46a (h) (1).  The petitioner’s prior New York conviction for the sale of a controlled substance in violation of N.Y. Penal Law § 220.34 served as the predicate for the “same felony” aggravating factor.  The petitioner brought this habeas action, claiming, among other things, that his counsel was ineffective in failing to adequately advance the claim that § 220.34 does not share the same essential elements as § 21a-277 (a).  The basis for the claim was that § 220.34, unlike § 21a-277 (a), does not identify cocaine as a controlled substance.  The habeas court rejected the claim, ruling that the essential elements of each statute—the intentional or knowing sale or distribution of a “controlled substance”—are the same.  It explained that neither statute explicitly makes the sale of cocaine an element, much less an essential element, of the offense.  Next, the petitioner claimed that counsel rendered ineffective assistance by introducing evidence of his antisocial personality disorder (APD) in an effort to establish a statutory mitigating factor.  He contended that the APD evidence made a “strong case for death” in that it painted him as a dangerous individual.  The court determined that, while counsel’s reliance on the APD diagnosis involved substantial risk, that decision was nevertheless a reasonable tactical choice because it was the only diagnosis relevant to a statutory mitigating factor, which, if proven, would have automatically resulted in a life sentence.  The petitioner, relying on expert testimony that he developed post traumatic stress disorder (PTSD) as a result of his traumatic childhood, also claimed that his attorneys were ineffective in failing to assert PTSD as a nonstatutory mitigating factor.  The habeas court disagreed, stating that the claim was based on hindsight and second-guessing counsel’s choice of experts based on evidence not available at the time of trial.  The petitioner also argued that, because he is black and the victim was white, his attorneys rendered ineffective assistance in failing explicitly to question prospective jurors during voir dire about racial bias.  The habeas court rejected that claim, ruling that the attorneys’ conduct during voir dire was not constitutionally deficient and that the petitioner failed to show that racial bias played any role in the verdict.  The petitioner now appeals from the judgment denying his habeas petition.