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ANTHONY SMALL v. COMMISSIONER OF CORRECTION (SC 17803)
Rogers, C. J., and Katz, Palmer, Vertefeuille and Zarella, Js. Argued October 22, 2007--officially released May 6, 2008

Joseph Visone, special public defender, for the appel-

lant (petitioner). Susann E. Gill, senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (respondent).

Opinion

ZARELLA, J. The issue in this appeal is whether the trial or appellate counsel of the petitioner, Anthony Small, rendered ineffective assistance in failing to object to, or to challenge on direct appeal, the trial court's jury instructions, which did not include the legal definition of ``attempt,'' when the petitioner was charged with felony murder predicated on the crime of attempt to commit robbery in the first degree. We conclude that any error by the petitioner's trial or appellate counsel did not prejudice the petitioner and, therefore, affirm the judgment of the Appellate Court, albeit for reasons different from those on which the Appellate Court relied. Our prior decision in State v. Small, 242 Conn. 93, 700 A.2d 617 (1997), sets forth the facts that a jury reasonably could have found. ``In October, 1990, the [petitioner] was involved in drug trafficking with his friend, Eric Amado. The [petitioner] and Amado stored drugs at the West Haven apartment of Amado's girlfriend, Joanne Bailey. Bailey shared the apartment with Hope Vaughn, who had been dating the [petitioner]. On October 19, 1990, Vaughn, who was upset over statements regarding her allegedly made by the [petitioner] and Amado, decided that she would `put a stop to it.' Vaughn telephoned a friend, Anthony Young, and asked him to come to the apartment she shared with Bailey. She then opened a window and knocked over some of the apartment's furnishings to make it appear as though the apartment had been burglarized. When Young arrived, Vaughn told him that she had some things to bring out and, after Young had backed his car, a red Toyota Celica, up to the door of the apartment building, she loaded two duffel bags and a small safe containing the drugs into the trunk of the car. The two then drove to Young's apartment in Bridgeport, where they were joined by Peter Hall, Vaughn's former boyfriend. ``Meanwhile, the [petitioner] and Amado returned to the West Haven apartment and discovered that the drugs were missing. The two men immediately began to search for the drugs and for whomever had taken them. They were joined in their search by Joanne Bailey, as well as by two associates, John `John-John' Wideman and David `Chico' Bailey. During the course of their search, the group traveled to Stamford so that Amado could consult with a `voodoo man' of his acquaintance. The `voodoo man' told him that Vaughn had taken the drugs. Joanne Bailey informed Amado that Vaughn might be with a friend, Sarita Malloy, who lived in Bridgeport with Young. The group drove in two cars to Young's apartment, where they found Vaughn, Young and Hall standing outside on the porch. At that time, they apparently did not suspect Young or Hall to have been involved in the theft. Joanne Bailey approached Vaughn and told her that Amado wanted to speak with

her. Vaughn went over to the car where Amado was waiting, and when he ordered her to get into the car she complied. The group then returned to West Haven, where they spent the night. Throughout the night, Amado and the [petitioner], along with the other two men, questioned Vaughn as to her knowledge of the missing drugs. Amado threatened to shoot her and, at one point, the [petitioner] tied a sock around Vaughn's head while David Bailey threatened her with a gun. ``The next morning, Joanne Bailey asked neighbors whether they had seen anything suspicious. After being told by a neighbor that Vaughn had been seen loading bags into the trunk of a red Toyota, the [petitioner], Amado, Joanne Bailey, Wideman and David Bailey returned to Young's Bridgeport apartment. The men were armed with automatic or semiautomatic weapons, including Uzis. The [petitioner] carried an Uzi.1 Upon arriving at Young's apartment, Amado told Young that he had come for his `stuff.' Young told him to calm down and to come inside the house, but Amado began yelling and then began shooting. Young and Hall were fatally wounded, and Joanne Bailey was shot in the back of her left thigh. The [petitioner], Amado, Wideman and David Bailey fled the scene. The [petitioner] subsequently left the Bridgeport area, and moved to Queens, New York, where he remained until his arrest for the murders in 1994.'' Id., 97

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