Opinion
No. CV04-0004519
August 30, 2006
MEMORANDUM OF DECISION
On April 26, 2004, petitioner filed a petition for a writ of habeas corpus, and thereafter, on December 5, 2005, an Amended Petition, in which he claims that he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution. The claim of ineffective assistance of counsel essentially complains that trial counsel failed to adequately cross-examine the victim, failed to adequately advise petitioner concerning the issue of whether or not to testify, failed to present evidence concerning the use of the term "looked out," and failed to move for an instruction concerning third-party culpability. Petitioner, therefore, asserts that his criminal case, docket number CR02-560248, should be restored to the docket of the Superior Court for further proceedings. For the reasons set forth more fully below, the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The matter came to trial on January 30, 2006. The Court heard testimony from petitioner and Donald Light, a private investigator. In addition petitioner entered into evidence transcripts of the trial and sentencing as petitioner's exhibits 1 through 11. Respondent proffered the Rights Waiver Form and Voluntary Statement dated 4/24/2002. The Court permitted both parties to file post-trial briefs. The respondent's brief was filed on June 15, 2006, and the petitioner's brief was filed the next day.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
CT Page 16279
1. The petitioner was the defendant in docket number CR-02-560248. He was arrested on May 17, 2002, and charged with Robbery 1st Degree, § 53a-134C(a)(1), two counts; Burglary 1st Degree, § 53a-101(a)(2), two counts; and Assault 2d Degree, § 53a-60(a)(1). After a jury trial on July 9, 10, 14, 15, 17, 18, 22, 23, 24, and 25, the Honorable Edward J. Mullarkey presiding, petitioner was found guilty on all five counts. On October 2, 2003 he was sentenced on all five counts to a total effective sentence of 20 years, suspended after 15, five of which are mandatory minimum, followed by five years special parole.
2. The petitioner was represented by Attorney Lisa Sosa at the trial.
3. The robbery and assault of the owner of Isabella's Market for which petitioner was convicted occurred on April 16, 2002. On April 24, 2002, petitioner was arrested for an unrelated crime and while in custody gave a statement to Detective Winston Brooks identifying a man named "Carlos, nickname 'Kojack,' (See Petitioner's Ex. 2, p. 4; Respondent's Ex. B) as the perpetrator of the April 16, 2002 robbery.
4. In the April 24th statement petitioner placed himself at the scene of the crime by stating that he remained outside of Isabella's Market while Carlos assaulted and robbed the store clerk, but that his only involvement in the robbery was as a look out.
"Carlos said, 'If I get that, I'll buy all your cane and break you off a piece.' This meant to me that Carlos was going to rob the store and give me some money. That if I looked out for him he'll look out for me . . . I figured that I would play lookout in front of the store and signal Carlos if anybody came." Respondent's Ex. B, pp. 1-2.
5. The victim, Syed Ali, identified petitioner as the person who assaulted and robbed him. He picked out his picture from two photo arrays which also contained the picture of the man petitioner named in his statement (See Respondent's Ex. B) as the perpetrator.
6. The victim testified at trial and identified petitioner as the assailant.
7. The petitioner appealed his convictions, which were affirmed in State v. Nunez, 93 Conn.App. 818, 890 A.2d 636, cert. denied, 278 Conn. 914, 899 A.2d 621 (2006).
DISCUSSION
The standard which the court must apply to the petitioner's claims of ineffective assistance of counsel is well established. "A petitioner's right to the effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, Section 8, of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel . . . The right to counsel, however, is the right to effective assistance and not the right to perfect representation." (Internal quotation marks omitted.) Woods v. Commissioner of Correction, 84 Conn.App. 544, 549, 857 A.2d 986 cert. denied, 272 Conn. 903 863 A.2d 696 (2004). "The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney . . . who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In Strickland v. Washington, supra, the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective that the conviction must be reversed. "That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." (Citations omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, cert, denied, 268 Conn. 907. cert denied sub nom., Toccaline v. Lantz, 543 U.S. 854, 125 C.CT. 301, 160 L.Ed.2d 90 (2004).
In order to meet the first prong of the Strickland test, the petitioner must first establish that his attorney's performance was "not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . The court must be mindful that [a] fair assessment of attorney performance requires that every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy." (Citations omitted; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 855-56, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).
The second prong of the Strickland test involves the prejudice component. There the petitioner cannot merely show that errors made by counsel had some effect on the outcome of the proceeding. He must demonstrate that "'. . . there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had had a reasonable doubt respecting guilt . . . A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury . . . [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.' Strickland v. Washington, supra, 466 U.S. 695-96." (Internal citations omitted.) Lewis v. Commissioner of Correction, supra, 89 Conn.App. 856.
"A court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim . . . In this context, a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome." (Internal citations omitted; internal quotation marks omitted.) Nieves v. Commissioner of Correction, 51 Conn.App. 615, 620, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).
Moreover, the habeas court does not sit as some sort of "peer review" examiner to grade the performance of trial defense counsel. To submit a transcript and essentially ask the court to engage in a plenary critique of counsel's efforts and to then attempt to find something wrong is a misunderstanding of the role of the habeas court and the burden that rests with the petitioner. It is not appropriate for a habeas court to examine the performance of a trial defense counsel and put it under microscopic scrutiny. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable The availability of intrusive post-trial inquiry into attorney performance of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client" Strickland v. Washington, supra, 466 U.S. 689-90.
The petitioner first claims that Attorney Sosa failed to adequately cross-examine the victim. As clarified through the habeas proceeding and the post-trial briefs, this claim more specifically is directed at trial counsel's failure to have an interpreter present for the victim's testimony. The petitioner has not presented any evidence that would show to this Court what Mr. Ali's testimony would have been if Attorney Sosa had questioned him differently on cross-examination, with or without the assistance of an interpreter. Essentially, the petitioner is asking this Court to speculate regarding Mr. Ali's testimony. This the Court will not do. The Court finds that the petitioner has failed to affirmatively show both the required deficient performance and resultant prejudice.
The petitioner's second claim of deficient performance is that Attorney Sosa failed to advise adequately the petitioner on whether or not to testify in the criminal proceeding. "It is the right of every criminal defendant to testify on his own behalf . . . and to make that decision after full consultation with trial counsel . . . Equally axiomatic is the proposition that an accused must take some affirmative action regarding his right to testify." (Internal citations omitted.) Ostolaza v. Warden, 26 Conn.App. 758, 763, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).
In support of this claim, the petitioner testified that Attorney Sosa advised him not to testify due in part to his record of prior criminal convictions. These prior convictions could have been used by the State to impeach the petitioner had he testified. While it is unclear how the petitioner would have testified in the underlying criminal matter, he showed considerable willingness to admit to criminal conduct that he does not stand convicted of in the instant matter. Attorney Sosa's advice appears to this Court to have been well founded. Additionally, the petitioner has not presented any evidence showing that he took ". . . some affirmative action regarding his right to testify." Ostolaza v. Warden, supra, 26 Conn.App. 763. The petitioner has not shown that counsel was deficient or that he was prejudiced.
The petitioner's next allegation against Attorney Sosa is that she failed to present evidence regarding the term "looked out." The petitioner gave a statement to Detective Brooks on April 24, 2002, in which he used that term. The petitioner testified at the habeas trial that he used that term as it is understood in the drug culture. Investigator Light, the only other witness to testify at the habeas trial, testified that the term "looked out" had a meaning in the drug culture similar to what the petitioner was indicating. Nevertheless, the Court finds that the petitioner's present testimony regarding what the term meant strains credibility too far.
The April 24, 2002 statement contains the following relevant passages:
I give this statement voluntarily to cooperate with the police investigation of the robbery at Isabella Market, Broad Street, Hartford that occurred last week when the old store clerk got hurt . . .
The night of the robbery last week I was on Broad Street. I went to the store (Isabella's Market) at about 10 p.m. I tried the door but it was locked. The store clerk signaled to me that the store was closed. Shortly after that I was walking by the store with a guy I know as Carlos, nickname" Kojak." When we walked by the store we both saw that the store clerk was counting a lot of money.
Carlos said, 'If I get that, I'll buy all your cane and break you off a piece.' This meant to me that Carlos was going to rob the store and give me some money. That if I looked out for him he'll look out for me. I told Carlos that I would check out the store. As I walked up to the store door the store clerk was turning off the lights and beginning to walk out. I caught me be surprise.
This happened real fast. Carlos then passed me and pushed the store clerk into the store. I saw that they were fighting and that Carlos pushed him behind the counter. I couldn't really see them after that. All I could hear was noise.
I figured that I would play look out in front of the store and signal Carlos if anybody come. I stood outside and began to get nervous because several people . . . were walking up the street. I got scared and ran . . .
Although I watched the outside of the store while Carlos went inside to rob the store clerk I didn't have anything to do with the store clerk getting hurt. Watching the outside was my only involvement.
Detective Brooks showed me . . . eight photos of similar looking Hispanic males. I immediately recognized photo #6 as being that of Carlos 'Kojack.' This was the same individual who went into the store (Isabella's Market) to rob the store while I waited outside and 'looked out' for him.
Respondent's Exhibit B, at 1-2.
The April 24, 2002 statement was signed by Detective Brooks and the petitioner and was notarized.
Simply put, this Court finds the petitioner's present day attempt to redefine what he meant by "looked out" to be utterly dubious and not credible. The petitioner has not shown that Attorney Sosa rendered deficient performance by not presenting evidence as to what "looked out" meant, nor the prejudice arising therefrom.
Lastly, the petitioner asserts deficient performance by Attorney Sosa because she failed to request an instruction on third-party culpability. "[A] defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged . . . It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused . . ." Santiago v. Commissioner of Correction, 87 Conn.App. 568, 591, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).
The Supreme Court's decision in State v. Berger, 249 Conn. 218, 733 A.2d 156 (1999), provides the analytical framework for review of this claim. In Berger, the Supreme Court noted that "[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request [however] will not constitute error if the requested charge is given in substance . . . Moreover, [w]hen reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper." (Internal citations and quotation marks omitted.) Id., at 234-35.
The Berger court then indicated that "[t]he defendant [in Berger had] requested that the trial court specifically instruct the jury on the effect and purpose of third-party culpability evidence. Specifically, the defendant requested that the court instruct the jury in part as follows: 'The primary object of third-party suspect testimony is not to prove the guilt of the third party but to disprove the guilt of the accused, if it raises a reasonable doubt of his guilt it accomplishes its object.' Although we acknowledge that this portion of the defendant's request sets forth an accurate statement of law and is relevant to the issues in the case, we conclude that the trial court was not obligated to provide the requested instruction to the jury because the substance of the requested instruction was implicit in the court's charge and did not require further explication.
"Throughout its jury charge, the court repeatedly stressed that the state bore the burden of proving that the defendant had committed each element of the crimes charged beyond a reasonable doubt. The charge also included a comprehensive instruction regarding the defendant's presumption of innocence, which included the explicit instruction that the defendant was not required to prove his innocence. Moreover, the court instructed the jury: 'First let me say what's obvious. One of the elements in this, as in every criminal case, the state must prove beyond a reasonable doubt that the defendant is the person or one of the persons who committed the crime or crimes charged. That is the element of identity must, of course, be proven beyond a reasonable doubt.'" Id., at 235-38.
The petitioner in the instant matter was charged both as an accessory and as a principal. Judge Mullarkey repeatedly indicated in his charge that the burden of proof was the state's. The charge also included a thorough presumption of innocence instruction that emphasized that the petitioner did not have to prove his innocence. Essentially, for purposes of the instant discussion, Judge Mullarkey's charge is indistinguishable from the charge reviewed in Berger. The petitioner has neither presented evidence to this Court that directly connects a third party to the crimes with which the defendant is charged and stands convicted of, nor has he shown that the trial court's instruction as a whole somehow resulted in an injustice to the petitioner. The petitioner has failed to show both deficient performance by Attorney Sosa and the resultant prejudice.
In the instant case, while there are many allegations involving the performance of Attorney Sosa, there is a paucity of proof supporting these allegations adduced at the habeas trial. Although the petitioner did introduce the transcript of his criminal trial allowing the habeas court to ascertain what was said on the record at the criminal trial, the transcript was not relevant to all of the allegations involving Attorney Sosa's performance. All of the items in the petition allege failures on the part of the petitioner's counsel to do something. There was no proof at the habeas trial as to whether any of these alleged failures to act were indeed viable strategies that should have been pursued and, more importantly what would have happened had they done these things. Consequently, there is no way that this Court can conclude that the petitioner has met his burden of proof that he somehow was the "victim" of ineffective assistance on counsel.
Accordingly, the petition for a writ of habeas corpus is denied.