ANTHONY SMALL v. COMMISSIONER OF CORRECTION, SC 17803

Judicial District of New Haven

Habeas Corpus; Ineffective Assistance of Counsel; Whether, Where the Petitioner was Charged with Felony Murder Predicated on an Attempt to Commit Robbery, the Jury Should Have Been Instructed on the § 53a-49 (a) (2) Definition of "Attempt."  The petitioner was convicted of two counts of felony murder in connection with a 1990 shooting that left two men dead.  He sought a writ of habeas corpus, claiming that both his trial and appellate counsel had rendered ineffective assistance.  Specifically, the petitioner claimed that he was charged with felony murder on the basis of the predicate crime of attempt to commit robbery in the first degree and therefore that the jury should have been instructed on "attempt" as defined by General Statutes § 53a-49 (a) (2).  He argued that his trial lawyer was ineffective in failing to seek such an instruction and that his appellate lawyer was ineffective in failing to pursue a claim concerning the omission on appeal.  The habeas court rejected the petitioner's claims and denied the habeas petition.  The Appellate Court (98 Conn. App. 389) affirmed, finding that the habeas court properly determined that the petitioner failed to establish that his attorneys provided ineffective assistance.  The court ruled that, as the petitioner had not been charged with attempt to commit robbery, trial counsel could have concluded reasonably not to seek an instruction on the § 53a-49 (a) (2) definition of attempt.  The court also noted that, while the felony murder statute, § 53a-54c, contains no definition of "attempt," the jury could have found that the state proved the element of "attempt" under that statute by applying the common, dictionary definition of the word, and that that sense of the word clearly conveyed what had to be proved by the state to justify a conviction of felony murder.  The Supreme Court will decide whether the Appellate Court properly determined that the petitioner was not denied the effective assistance of counsel at trial and on appeal.