Zachs v. Commissioner of Correction

Citations

• 205 Conn. App. 243

Syllabus

The petitioner, who had been convicted of the crime of murder, sought a writ of habeas corpus, claiming, inter alia, that his criminal trial counsel, D and W, had rendered ineffective assistance. The petitioner, who had shot the victim during an altercation at a café, testified at trial that the gun he was carrying at the time of the shooting had accidentally discharged. When the state sought to present rebuttal testimony from six witnesses as to prior uncharged conduct by the petitioner related to his use of guns, the trial court, at the request of D, who sought to avoid a conflict of interest, admitted W pro hac vice for the purpose of cross-examining the state's rebuttal witnesses, two of whom were then represented by D in other matters. Neither D nor W thereafter cross- examined the rebuttal witnesses. The court, at D's request, instructed the jury as to certain lesser included offenses within the crime of murder and on the affirmative defenses of not guilty by reason of mental disease or defect and extreme emotional disturbance. The petitioner alleged that D was ineffective because, inter alia, the affirmative defenses and lesser included offenses were inconsistent with the petitioner's trial testimony, that the only reasonable trial strategy would have been for D to pursue a claim that the gun accidentally discharged and that the petitioner's conduct fit the parameters of the lesser included offense of manslaughter in the second degree. The petitioner also grounded his ineffective assistance of counsel claim in D's conflict of interest in concurrently representing two of the state's rebuttal witnesses and D's decision to have W handle the cross-examination of those witnesses, which the petitioner asserted was insufficient to ameliorate the possibil- ity that he would be prejudiced by D's conflict of interest. The petitioner further asserted that D was ineffective in having conceded the issue of whether the petitioner had intended to kill the victim by asserti