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Peeler v. Commissioner of Correction

Court of Appeals of Connecticut

February 14, 2017


          Argued November 15, 2016

         Appeal from Superior Court, judicial district of Tolland, Sferrazza, J.

          Lisa J. Steele, assigned counsel, for the appellant (petitioner).

          Harry Weller, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Craig P. Nowak, senior assistant state's attorney, and Richard K. Greenalch, deputy assistant state's attorney, for the appellee (respondent).

          Alvord, Prescott and Mihalakos, Js.


          ALVORD, J.

         The petitioner, Russell Peeler, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.[1] On appeal, the petitioner claims that the habeas court erroneously (1) deprived him of his right to self-representation; (2) concluded that his claim that his expeditious criminal trial schedule violated his constitutional rights had been procedurally defaulted; (3) concluded that appellate counsel provided effective assistance; and (4) concluded that the state did not suppress evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).[2] We disagree and, accordingly, affirm the judgment of the habeas court.

         The following factual and procedural history, as set forth in State v. Peeler, 271 Conn. 338, 348-55, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 103 L.Ed.2d 110 (2005) (Peeler II), is relevant to the present appeal. ‘‘In the late 1990s, the [petitioner] and his brother, Adrian Peeler (Adrian), operated a large-scale drug trafficking network that sold crack cocaine (crack) throughout the city of Bridgeport. In 1997, the [petitioner] partnered with Rudolph Snead, Jr., to produce and distribute the crack. Snead's responsibilities included providing the [petitioner] with powdered cocaine, which the [petitioner], with the help of several associates, processed into crack and then sold on the streets. The partnership began to sour when, in 1997, the [petitioner] accused Snead of overcharging him for the powdered cocaine. Snead responded to the accusation by ‘shooting up' a building on Benham Street in Bridgeport that the [petitioner] used as a ‘crack house.' According to one of the [petitioner's] associates, the [petitioner] vowed to retaliate.

         ‘‘In September, 1997, the [petitioner], Corey King, Shawn Kennedy, and the [petitioner's] cousin, Ryan Peeler (Ryan), were driving in Bridgeport when the [petitioner] noticed Snead's car parked in the lot of a barber shop. The [petitioner] observed Snead leave the barber shop, get into his car and drive away. At the time, the [petitioner] was aware that two young boys, later identified as Leroy Brown, Jr., and Tyrell Snead (Tyrell), were passengers in Snead's car.

         ‘‘The [petitioner's] car followed Snead's car to the Lindley Avenue entrance ramp to Route 25. As Snead proceeded up the ramp, he slowed down and pulled off to the side. The [petitioner's] vehicle pulled up next to Snead's car, and the [petitioner], who was seated in the right front passenger seat, fired several shots at Snead from a .40 caliber, semi-automatic handgun.[3] The [petitioner] kept shooting until his gun jammed.

         ‘‘Several of the shots fired by the [petitioner] hit Snead, injuring him, but not so severely that he was unable to drive away. A Bridgeport police officer, who noticed glass falling from Snead's car as he drove by, stopped the vehicle. After Snead explained what had happened, the officer sent him to St. Vincent's Medical Center for treatment.

         ‘‘At the hospital, another officer from the Bridgeport police department interviewed Snead and his two young passengers, Brown and Tyrell. The officer's investigative report included the names of all three interviewees. On the basis of Snead's identification of the [petitioner] as the person who had shot him, the [petitioner] was arrested and charged with attempted murder.

         ‘‘The [petitioner], however, posted bond and was released from custody. After his release, the [petitioner] made it clear to his associates that he was furious with Snead for reporting the Lindley Avenue shooting to the police, and that he was going to ‘get' him for giving a statement to the police. Subsequently, in May, 1998, while free on bond, the [petitioner] shot and killed Snead in the same barber shop that Snead had patronized immediately prior to the Lindley Avenue shooting.

         ‘‘While investigating Snead's death, the Bridgeport police department performed ballistics tests comparing the shell casings retrieved from the murder scene with those from the Lindley Avenue shooting. The tests revealed that all of the bullets had been discharged from the same gun. The police were also aware that Brown could identify the [petitioner] as the shooter in the Lindley Avenue shooting, thus linking him directly to Snead's murder. On the basis of this information, the [petitioner] was arrested and charged with Snead's murder.

         ‘‘The [petitioner], however, again secured his release by posting bond. As a condition of his release, the [petitioner] was required to observe a curfew and wear an electronic ankle bracelet to ensure compliance. Despite these precautions, the [petitioner] continued operating his drug trafficking business, albeit from a new location.

         ‘‘In January, 1998, during the course of pretrial discovery in connection with the Lindley Avenue shooting, the state provided defense counsel with the police report identifying Brown and Tyrell as the two passengers in Snead's car when that shooting had occurred. The trial court, however, ordered counsel to conceal the names of the two children from the [petitioner] to ensure their safety.

         ‘‘During the fall of 1998, the [petitioner] frequently discussed his pending cases with his attorney, and often speculated as to the identity of the state's witnesses. He noticed that his attorney had made an extraordinary effort to prevent him from learning the name or names of the state's witnesses. The [petitioner], however, remembered that during the Lindley Avenue shooting Snead had been accompanied by two children, Tyrell and Brown. He therefore surmised that those children could be the state's witnesses in the cases pending against him.

         ‘‘The [petitioner's] suspicions were confirmed when, one day while driving past 207 Earl Avenue in Bridgeport, where Brown lived with his mother, Karen Clarke, the [petitioner] saw Brown playing outside. When Brown saw the [petitioner], he looked surprised and immediately ran away. As a result, the [petitioner] concluded that Brown was in fact one of the state's witnesses. The [petitioner] thereafter openly contemplated the possibility of having someone kill Brown and Clarke.

         ‘‘In December, 1998, the [petitioner] told his girlfriend, Angelina Keene, that she should move away from Bridgeport because he was going to start killing the witnesses against him.[4] At about the same time, the [petitioner] offered Kybarris Taylor $10, 000 to kill two people. Specifically, the [petitioner] told Taylor that he wanted to eliminate ‘two nobodies.' Taylor refused the offer. The [petitioner] also asked his brother Adrian and Josephine Lee, a crack addict and prostitute who lived across the street from Clarke and Brown, to carry out the killings. They too initially refused. Ultimately, however, Adrian agreed to commit the double homicide.

         ‘‘The [petitioner] also told his associates that he wanted the witnesses killed with a revolver because, unlike a .40 caliber semi-automatic handgun, the shell casings would not be discharged from the revolver, making it more difficult to link the shootings to the gun.[5]In October, 1998, one of the [petitioner's] associates in the drug trade, Albrent Daniels, procured for the [petitioner] the revolver that was to be used to kill Clarke and Brown. . . . [King, another associate of the petitioner, ] testified that at one point after the [petitioner] had gained possession of the gun, the [petitioner] described to several of his associates, including Adrian, what he intended to do with it. He said that he would put the gun to Brown's head and go ‘[p]ow, ' simulating the sound of a gunshot. The gun eventually was given to the [petitioner's] brother, Adrian.

         ‘‘At this same time, the [petitioner] and his drug trafficking associates moved their crack production to a house located at 200 Earl Avenue in Bridgeport, across the street from the house in which Clarke and Brown then lived. The residents of the 200 Earl Avenue address, including Lee, were crack users who obtained the drug from the [petitioner's] drug trafficking network.

         ‘‘Lee testified that on January 6, 1999, the day before the Clarke and Brown murders, the [petitioner] and an associate, later identified as King, were at the house located at 200 Earl Avenue. According to Lee, the two men spent time in the dining room observing Clarke and Brown's residence. Lee further testified that another of the [petitioner's] associates, later identified as Gary Garner, and the [petitioner's] brother, Adrian, also came by the house that day. At some point, King left Lee's residence and, thereafter, Lee observed Adrian and the [petitioner] conversing in the dining room.

         ‘‘The [petitioner] and Adrian then entered the kitchen and ‘cooked' some crack. Lee testified that the [petitioner] asked her if she would ‘do him a favor . . . [and] kill the woman across the street . . . .' Lee, however, refused to do so. The [petitioner] thereupon asked Adrian if he would kill Clarke and her son. According to Lee, Adrian indicated that he would ‘take care of it.'

         ‘‘The [petitioner] then asked Lee to keep an eye on the 207 Earl Avenue address and to contact him when Clarke and Brown returned home. Lee agreed to do so, and the [petitioner] wrote down his beeper number for her to call. The [petitioner] then gave Lee a handful of crack cocaine as payment for her cooperation.

         ‘‘The next day, when Lee saw Clarke and Brown return home, she telephoned the [petitioner's] beeper number and left her number. When the [petitioner] called her back, she informed him that Clarke and Brown had returned home. The [petitioner] said ‘okay' and hung up the telephone. A few minutes later, Adrian arrived at Lee's residence holding a gun. Adrian greeted Lee and then immediately departed Lee's residence. Lee followed him.

         ‘‘Adrian crossed the street and proceeded toward Clarke and Brown's house at 207 Earl Avenue, stopping first to speak to a lone occupant in a car that was parked in front of that residence. The occupant of the car subsequently was identified as Garner. Lee testified that Garner told her that if she ‘said anything, ' she ‘was going to be next.'

         ‘‘Adrian and Lee approached Clarke's residence and Lee rang the front doorbell while Adrian remained behind her. Lee heard a voice from inside the house ask, ‘[w]ho is it?' Lee responded, ‘[t]he girl across the street.' Clarke cracked open the door, at which time Adrian pushed past Lee and forced the door open. Lee testified that she heard the rustle of grocery bags, which were later found strewn across the floor, and the sounds of a struggle inside. When Lee entered the house, she saw Clarke and Brown running up the stairs trying to escape from Adrian, who was chasing them. According to Lee, once Clarke and Brown reached the top of the stairs, she heard a gunshot, and then heard Brown scream out, ‘mommy, mommy, mommy, mommy, ' from the top of the stairs. Lee then saw Adrian pursue Clarke into a bedroom and heard him mention something about Brown being a witness to a shooting. Lee, who by this time was at the top of the stairs, testified that she had heard another gunshot and, immediately thereafter, observed Adrian emerge from the bedroom. Lee further stated that she saw Adrian shoot Brown in the head. Adrian then ran out of the house. Lee, who was still at the top of the stairs, testified that she initially had stood frozen, but eventually left to return to her residence at 200 Earl Avenue. On her way out of Clarke and Brown's house, Lee noticed Adrian was gone, as was the car in which Garner had been sitting. Louis Ellis, who also lived at 200 Earl Avenue, corroborated Lee's account, testifying that on the evening of the murders, he heard four or five gunshots, and shortly thereafter, he heard Lee run into the house breathing hard, as if out of breath.

         ‘‘On April 14, 1999, the [petitioner] was arrested for the murders of Clarke and Brown and charged with one count of murder, two counts of capital felony- one for the murder of Brown, and the second for the double murder-and one count of conspiracy to commit murder. While incarcerated and awaiting trial, the [petitioner] inculpated himself to fellow inmates. Two of those inmates, Audrey Holeman and Thomas Kerr, testified that while each was incarcerated with the [petitioner], the [petitioner] had bragged about his involvement in the murders. Holman testified that he had overheard the [petitioner] tell another inmate that his brother would not testify against him because the [petitioner] had murdered one person, but his brother had murdered two, and that the [petitioner] was pleased with his brother because Adrian ‘had done something righteous' for him ‘that nobody else . . . would do . . . .' Kerr testified that the [petitioner] had told him that ‘that bitch, ' Clarke, rather than the [petitioner] himself, was responsible for both of the deaths, and that ‘[s]he should have known not to mess with him.' '' (Footnotes in original). Id.

         In June, 2000, after the guilt phase of the petitioner's capital felony jury trial, the petitioner was convicted on all counts.[6] Id., 355. During the penalty phase, however, the jury deadlocked on whether to sentence the petitioner to death. Id., 407. The state moved for a mistrial as to the penalty phase, but the court denied the state's motion and imposed a sentence of life imprisonment without the possibility of release. Id., 407-408. The petitioner subsequently appealed the verdict in his guilt phase while the state appealed the court's denial of its motion for a mistrial as to the penalty phase. Id., 345-348. On appeal, the Supreme Court affirmed the petitioner's convictions, reversed the court's denial of the state's motion for a mistrial, and remanded the case for a new penalty phase. Id. During the second penalty phase, the jury recommended and the court imposed a death penalty sentence. State v. Peeler, 320 Conn. 567, 572 n.3, 133 A.3d 864, cert. denied, U.S., 137 S.Ct. 110, 196 L.Ed.2d 89 (2016) (Peeler III). The petitioner appealed that sentence. Throughout the duration of the habeas proceeding, the petitioner's direct appeal of his death sentence remained pending and, as a result, the petitioner remained subject to a death penalty sentence. State v. Peeler, 321 Conn. 375, 376-77, 140 A.3d 811 (2016) (per curiam) (Peeler IV). During the pendency of the present appeal, the Supreme Court vacated the petitioner's death penalty sentence as unconstitutional in accordance with State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015). Peeler IV, supra, 377. The petitioner was resentenced to life in prison without the possibility of release. See id.

         The petitioner initiated this habeas action on November 3, 2008. On April 4, 2014, the petitioner filed an eleven count amended habeas petition, in which he alleged ineffective assistance of trial and appellate counsel, constitutional violations based on his criminal trial schedule, and Brady violations by the state at his criminal trial. Relevant to the present appeal, the petitioner claimed that: (1) ‘‘[t]he failure [of appellate counsel] to challenge the denial of the motion to change venue on appeal [due to the amount of pretrial publicity his case received] constituted'' ineffective assistance of counsel; (2) ‘‘[t]he expeditious trial schedule violated [his] fifth and sixth amendment rights to due process, compulsory process, to present a defense and to the effective assistance of counsel''; and (3) the state violated Brady by failing to disclose three recordings Lee made while wearing a concealed recording device for the Federal Bureau of Investigation (FBI), a recording made by a federal confidential informant of a conversation involving Ryan and Keene, and phone records from 200 Earl Avenue. After a trial, the habeas court issued a memorandum of decision denying the petitioner's habeas petition. This appeal followed. Additional facts will be set forth as necessary.


         We begin with the petitioner's claim that the habeas court committed structural error when it denied his motion to proceed pro se. We conclude that the petitioner's claim lacks merit because he waived his right to self-representation.

         After filing his petition for a writ of habeas corpus in 2008, the petitioner filed a motion for the appointment of counsel. The court granted the motion and appointed two special public defenders. In a letter dated December 29, 2010, the petitioner asked the court to replace habeas counsel with different counsel because they had met with him only once and had failed to amend his habeas petition, to hire an investigator, or to review his criminal trial transcripts. On January 7, 2011, the court held a hearing on the petitioner's motion. After hearing arguments from the petitioner and habeas counsel, the court denied the petitioner's motion to replace habeas counsel, agreeing that habeas counsel needed time to review the substantial record in the petitioner's case more thoroughly. It also asked habeas counsel and the petitioner to try to communicate better and repair their relationship.

         In a letter dated April 19, 2011, the petitioner asked to proceed pro se. On May 26, 2011, the court held a hearing on the petitioner's motion. At the hearing, the petitioner argued that habeas counsel were still not communicating sufficiently with him or investigating his case. Habeas counsel explained that ‘‘this file is by far the largest file that [we] have ever dealt with'' and that they were actively working on his case. The petitioner stated that the claim based on Lee's phone records was his ‘‘cardinal'' claim; see Part IV C of this opinion; and the court engaged in a lengthy discussion with him about why habeas counsel were obligated to investigate beyond the narrow phone record issue. The court also explained that the reason habeas counsel were slow to respond to him was not because of their indifference to his case but because, as they previously explained, they had recently completed another homicide trial. Habeas counsel then shared with the court some of the logistical and legal issues associated with the petitioner's case.

         The court proceeded to canvass the petitioner on his educational background. The petitioner stated that he graduated high school. When the court attempted to explore other aspects of his education, however, the petitioner repeated the reasons why he was dissatisfied with his current habeas counsel. The court interjected and cautioned that it and the court monitor were having difficulty following his rapid dialogue. The court again explained the enormity of the task presented by the habeas proceeding and asked the petitioner to be patient and to cooperate with habeas counsel. The petitioner then stated: ‘‘Well, Your Honor-Your Honor, let me [be] blunt, Your Honor. I filed this motion so I could represent myself. (Indiscernible)-represent myself, you know what I'm saying? I want to represent myself. I don't have any use-I don't want the use of the attorney who says-I want to represent myself (inaudible).'' The court then stated that ‘‘given the nature of the issues in this case, given the nature of the proceeding and given your background, as much of it as you've given to me, that I don't feel that you can capably represent yourself. I don't think that you can effectively represent yourself.''

         The petitioner continued to argue that he was capable of representing himself, explaining that he attended a year of community college, during which he studied criminal justice. He also stated clearly and unequivocally on multiple occasions that he wanted to represent himself.[7] Nevertheless, the court expressed its concern that the petitioner was ‘‘not trained in the law'' and did not have ‘‘any personal experience other than this case with the law.'' The court also observed that it was having ‘‘difficulty understanding some of the things [the petitioner] [had] been telling [it], '' in part because the petitioner sometimes presented information in a ‘‘very disjointed'' manner and spoke ‘‘extremely fast.'' The court concluded that the petitioner was not able to represent himself ‘‘in a reasonably competent way'' and that habeas counsel was adequately representing the petitioner's interests. Although the petitioner filed four more motions to replace habeas counsel over the next three years, at no time thereafter did the petitioner seek to represent himself.

         On April 10, 2014, the court held a hearing on the petitioner's final motion for reconsideration of his motion to replace habeas counsel and habeas counsel's motion for a competency evaluation.[8] While the court discussed the petitioner's motion with the petitioner and habeas counsel, counsel for the respondent, the Commissioner of Correction, interjected, asking the court to clarify whether the petitioner was asking for a continuance, to replace counsel, or to represent himself. The court stated that it understood that he was seeking new counsel and asked the petitioner to confirm. The petitioner responded: ‘‘Right. Effective counsel. A person, person-a person who's going to afford me what I'm afforded under the sixth amendment. . . . My motion is clear. I'm not saying I want to represent myself. I understand the difficulties, pitfalls that a self-represented client faces. I need an adequate attorney. I don't need someone to say, well, here-we're going to-we're going to satisfy you, here's a habeas. No. I- this is serious, you see what I'm saying. You're not going to cover issues . . . .'' (Emphasis added.) In response to those concerns, the court explained: ‘‘You don't get to choose who your trial counsel are. . . . That when counsel are appointed, as long as they are doing the job that they're expected to do, that's who-that's who you get. Your choice is you can represent yourself or you can go forward with counsel, and if you go forward with counsel, they're the captain of the ship.'' (Emphasis added.) The petitioner acknowledged the court's remarks, but he gave no indication that he wanted to represent himself.

         The court then admonished the petitioner that proceeding to trial on his petition while his appeal of his death sentence was pending could preclude him from raising similar claims with respect to his second penalty phase. The petitioner stated that he understood and then resumed his discussion about why he wanted to replace habeas counsel. Habeas counsel responded to his comments. In response to the petitioner's arguments, the court reminded the petitioner that ‘‘[t]hey've made conclusions that are strategic in nature as to how they want to pursue it, and that is their right if you want to be represented by counsel.'' The court explained that it believed that the petitioner was receiving effective assistance of counsel, and, therefore, the court denied his motion to replace counsel. The court then asked the petitioner: ‘‘Is it still your desire . . . to go forward [with the trial] . . . starting next week?'' The petitioner replied, ‘‘Yes, Your Honor.'' The petitioner then informed the court of an issue that he wanted the court to be aware of in advance of the habeas trial because he wanted to preserve the record for his appeal in case the court denied his petition.

         Later in the proceeding, the issue arose, again, as to whether the petitioner should be proceeding with the habeas trial in light of the fact that his direct appeal of his death sentence was still pending. The court stated that it believed that the petitioner had competently chosen to proceed with the trial even though it might be against his best interests and the advice of counsel. In an abundance of caution, counsel for the respondent stated that ‘‘[i]f [the petitioner] withdraws this [habeas petition] today or tomorrow or next week, I'm not going to raise an abuse of the writ claim. I'm going to let him do that.'' The court similarly stated that although it was ‘‘usually . . . very stern with people who want to withdraw their petition on the eve of trial, '' it would permit the petitioner to withdraw his petition if he changed his mind before trial. The petitioner stated that he wished to proceed with the habeas trial.

         On appeal, the petitioner claims that the court committed structural error when it improperly denied his motion to proceed pro se. The petitioner's argument assumes that the non constitutional right to self-representation in a habeas proceeding, found in Practice Book § 44-3, has the same force and effect as the constitutional right to self-representation in a criminal proceeding, embodied in the sixth amendment to the United States constitution.[9] The respondent acknowledges that the petitioner has a residual common-law right to self-representation at a habeas trial, but it argues that there is no basis under state or federal law for treating this right as equivalent to the constitutional right to self-representation.[10] The respondent argues therefore that the appropriate standard of review for a habeas court's denial of a motion to proceed pro se is abuse of discretion and that if this court concludes that the habeas court abused its discretion, it should consider whether this error was harmless. The respondent characterizes the court's ruling as ‘‘problematic, '' but it contends that any error was cured by the petitioner's subsequent waiver of his right to self-representation or, alternatively, was harmless. We conclude that ...

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