Opinion
No. CV02-0815954
March 23, 2005
MEMORANDUM OF DECISION
The petitioner, Shawn Crocker alleges in his petition for a Writ of Habeas Corpus initially filed on April 9, 2002 and amended on September 22, 2004, that his 2000 conviction for one count of felony murder in violation of CGS § 53a-54c, and one count of murder in violation of CGS § 53a-54a, and one count of criminal possession of a firearm in violation of CGS § 53a-217 were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of the effective assistance of trial defense counsel and to have been the victim of prosecutorial misconduct.
This petition was initially filed in the Judicial District of Hartford and transferred to the Judicial District of Tolland on September 1, 2003. The petitioner was initially represented by special public defender Attorney Jeffrey Minnier, who was allowed to withdraw his representation on April 5, 2004. The petitioner was subsequently and thereafter represented by special public defender Attorney Genevieve P. Salvatore who filed her appearance on April 12, 2004.
This matter came on for trial before this Court on February 28, 2005 and again on March 16, 2005 at which time testimony was received from the petitioner, and his trial defense counsel, Attorney Leo Ahern. The transcript of a potion of the petitioner's first trial (pp. 234-61 of one volume) and the entirety of the petitioner's second trial, eight volumes in all, Attorney Ahern's bill for services and a police report of October 21, 1997. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
Admitted for limited purposes only.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of New Haven, under Docket Number CR97-0458468 entitled CT Page 5294 State v. Crocker. The petitioner was charged with one count of murder in violation of CGS § 53a-54a, and one count of criminal possession of a firearm in violation of CGS §§ 53a-217.
2 Attorney Leo Ahern represented him throughout these proceedings.
3. The petitioner's first trial resulted in a mistrial because the jury failed to reach a unanimous verdict.
4 The case was thereafter subsequently tried to another jury of twelve.
5. The jury reasonably could have found the following facts to be true regarding the underlying offenses. "Shortly before 7:30 p.m. on October 27, 1997, George David Wright drove a stolen Jeep Cherokee to the Quinnipiac Terrace housing complex in New Haven, also known as `the Island.' The victim, Daryl Price, was in the passenger seat of the Jeep, and Calvin Taylor was seated in the back. At the housing complex, Wright and Taylor exited the vehicle, and Tacuma Grear approached the Jeep to talk to the victim. They talked about the killing of Grear's brother, Corey Grear, which had occurred approximately one week earlier, for which the victim had apologized. Corey Grear was a friend of the defendant, and the defendant had held him in his arms after Grear was fatally shot by the victim. The defendant had witnessed the victim shoot Corey Grear. Corey Grear was also a member, as was the defendant, of the Island Brothers, a street gang into which the victim had been introduced and sponsored by the defendant. As his sponsor, the defendant was responsible for disciplining the victim should the victim kill a fellow gang member.
6. "As Tacuma Grear walked away from the Jeep, the defendant had come up to the driver's side of the Jeep carrying a handgun. He then leaned into the Jeep and fired four times into the vehicle. Two .45 caliber bullets hit the victim, killing him, and two other bullets were found in the Jeep."
State v. Crocker, 83 Conn.App. 615 (2004).
7. The Court appointed Attorney Leo Ahern as a special public defender to represent the petitioner at his murder trial.
It is apparent from reading the appellate decision in this case and from certain comments made in the habeas trial that Attorney Michael Dolan initially represented the petitioner. Attorney Ahern ultimately replaced him after the Court, Hartmere, J. disqualified him because he represented both the petitioner and the witness, Tacuma Grear. There are no allegations of any impropriety regarding Attorney Dolan in this habeas petition.
8. Attorney Ahern is, and was at the time of his representation of the petitioner, actively engaged in the practice of law in Connecticut.
9. The petitioner, with the concurrence of his counsel decided to testify at both his first and second trials.
10. There was substantial evidence presented by the state's attorney at the second trial to establish that the petitioner was a member of the "Island Brothers," a street gang operating in the New Haven area, although the petitioner denied being a member of this gang.
The term "Island Brothers" apparently refers to the Quinnnipiac Housing project located at Dover Street in the City of New Haven.
The following is an excerpt from Petitioner's Exhibit 2:
Cross Examination by Mr. Strollo:
Q: Hello Mr. Crocker. How are you?
A. I seen better days.
Q. Isn't it true you're an Island Brother?
A. No.
11. The petitioner was then cross-examined by the state's attorney with state's exhibits 100 and 101 that are photographs depicting the petitioner in the company of other gang members, wearing gang colors and making various signs that reflected gang membership.
12. The petitioner knew about the existence of these photographs prior to his taking the stand to testify. The petitioner, however, never told Attorney Ahern about the existence of these photographs.
13. The petitioner was convicted of both charges and sentenced by the Court, Lager, J. to an effective term of confinement of fifty-five years.
14. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1976).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).
I. Implied Waiver of the Attorney-Client Privilege
There was a question that arose during the course of the habeas trial that needs addressing. Specifically, does a petitioner who files a petition for a writ of habeas corpus, alleging ineffective assistance of his or her trial defense counsel waive the attorney/client privilege in respect to testimony by the previous counsel whose conduct of the case is under examination?
In this case, the petitioner elected not to call his former counsel to the witness stand in his case in chief. Notwithstanding, the respondent did call Attorney Ahern as his witness to refute the claim of ineffective representation. During the course of direct examination, Attorney Linda Howe, counsel for the respondent, asked Attorney Ahern to repeat what the petitioner had told him in what would have been an attorney/client communication. Attorney Ahern declined to answer the question, asserting the attorney/client privilege, until such time as his former client waived the attorney/client privilege. When the Court asked the petitioner if he indeed wished to waive his attorney/client privilege, counsel for the petitioner responded that he was asserting the privilege. The issue was now joined. Surprisingly, this Court was unable to find a precedent directly on point to resolve the question.
The courts of the state of Connecticut have had "a long-standing strong public policy of protecting attorney-client communications." Doyle v. Reeves, 112 Conn. 521 (1931). The prime purpose of the attorney-client privilege is "in large part, to encourage full disclosure by a client to his or her attorney so as to facilitate legal representation." State v. Cascone, 195 Conn. 183 (1985). "It is important not to weaken the privilege with various exceptions because, as the United States Supreme Court has explained, even the threat of disclosure would have a detrimental effect on attorneys' ability to advocate for their clients while preserving their ethical duty of confidentiality." Hickman v. Taylor, 329 U.S. 495 (1947). "In Connecticut, the attorney-client privilege protects both the confidential giving of advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice. Shew v. Freedom of Information Commission, 245 Conn. 157 (1981)." Kowalonek v. Bryant Lane, Inc., 2000 CT Sup. 4071. Anything that derogates the attorney-client privilege must be closely examined by the court with an eye towards upholding the privilege because "it is obvious that professional assistance would be of little or no avail to the client unless his legal adviser were put in possession of all the facts relating to the subject matter of inquiry of litigation, which, in the indulgence of the fullest confidence, the client could communicate. And it is equally obvious that there would be an end to all confidence between the client and the attorney, if the latter was at liberty or compellable to disclose the facts of which he had thus obtained possession." Goddard v. Gardiner, 28 Conn. 172 (1859). While it may, therefore, be argued that the mere act of filing a habeas petition alleging ineffective assistance of counsel constitutes an implied waiver of the attorney/client privilege by the petitioner, such implied waiver must stand up against the strong public policy in Connecticut respecting the attorney-client privilege. With this in mind, it is clear to this Court that the "implied waiver exception may be invoked only when the contents of the legal advice is integral to the outcome of the legal claims of the action." Remington Arms Co. v. Liberty Mutual Ins. Co., 142 F.R.D. 408 (D.Del 1992). It is important to keep in mind, however, that in the context of litigation, "it would be unfair to allow a client to assert the attorney-client privilege and prevent disclosure of damaging communications while allowing the client to disclose other selected communications solely for self serving purposes." See Smith, 538 F.Sup. at 979. In other words, while a petitioner is free to use the attorney-client privilege as a "shield," it is improper to use it as a "sword" by seeking to deprive an opposing party of material by which that party may defend against the claim raised. "Where the party attacking the privilege has not been prejudiced, . . . there is no reason to find a waiver by implication." Arnoff, 466 F.Sup. at 862-63. Conversely, where there is prejudice, then a waiver may be found.
Here, the petitioner did place the advice of his attorney into question before this habeas court. In so doing, he impliedly waived his attorney-client privilege such that Attorney Ahern would have been free to testify without invoking his former client's attorney-client privilege. Rule of Professional Conduct 1.6(d) provides that "a lawyer may reveal such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client." It is true that this Rule does not expressly mention habeas corpus proceedings, however, it is clear that the term "any proceeding" is broad enough to cover the adjudication of a habeas corpus petition and that the term "allegations" is broad enough to cover a complaint of ineffective assistance of counsel. Consequently, Attorney Ahern would have been within the bounds of legal ethics to answer Attorney Howe's question without asserting an attorney-client privilege relying upon an implied waiver by the petitioner in filing the petition. That is all the more true in the instant case where the petitioner, in his own testimony, revealed portions of his conversations with his lawyer. "It has been established for a hundred years that when a client waives the privilege by testifying about what transpired between her and her attorney, she cannot thereafter insist that the mouth of the attorney be shut." Hunt v. Blackburn, 128 U.S. 464 (1888). The implied waiver exception to the attorney-client privilege "is invoked . . . when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication or specifically places at issue, in some other manner, the attorney-client relationship. In those instances, the party has waived the right to confidentiality by placing the content of the attorney's advice directly at issue because the issue cannot be determined without an examination of that advice." Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., 249 Conn. 36 (1999). Notwithstanding the implied waiver concept that this court believes operates to relieve a trial defense counsel in a habeas proceeding who is alleged to have provided ineffective representation of the duty to protect the attorney-client privilege, the question remains as to what is to be done when a habeas petitioner goes ahead and re-asserts that privilege in the midst of a habeas trial. The attorney-client privilege is one privilege that is universally recognized by all codes of evidence although in various jurisdictions there may be no doctor-patient privilege, or no mental health professional-patient privilege. It is the keystone of our Anglo-American jurisprudence. It is, therefore, of paramount importance and deserves protection even under the circumstances posed in this case. Consequently, this Court finds that a habeas petitioner may, if he or she so wishes, re-assert an attorney-client privilege even in the face of the implied waiver brought about by the filing of the habeas petition. It is not, however, without cost. As previously noted, where the petitioner has alleged unprofessional conduct on the part of his former trial defense counsel, testifies, or otherwise introduces evidence to establish the same, then a re-invocation of the attorney-client privilege operates to place the respondent in an untenable position. The law allows the privilege to be a shield, but not a sword. In order to allow the petitioner to re-assert the attorney-client privilege, it is necessary for the habeas court to dismiss those portions of the petition alleging ineffective assistance of counsel with prejudice. The choice as to which of these courses is to be followed rests with the petitioner. The petitioner may either waive the attorney-client privilege and proceed with the trial of the petition or the petitioner may assert the attorney-client privilege and face dismissal with prejudice of those portions of the petition alleging ineffective assistance of trial defense counsel.
In the instant case, after full opportunity to consult with his habeas counsel, the petitioner elected to go ahead and waive the attorney-client privilege, thereby giving Attorney Ahern carte blanche to testify freely. This habeas court finds that this procedure is necessary to permit the full and fair adjudication of habeas petitions at the same time not exposing former trial defense counsel to complaints of unethical behavior by petitioners who want to have it all, so to speak. To summarize, then, this habeas Court finds that a reasonable interpretation of the case law in the state of Connecticut regarding this issue is that: (1) there is an implied waiver of the attorney-client privilege between petitioner and former trial defense counsel that becomes effective when an inmate files a habeas petition alleging ineffective assistance of his or her former trial defense counsel; (2) former trial defense counsel may engage in pretrial cooperation with counsel for the respondent to assist in defending such a claim; (3) former trial defense counsel may answer questions and reveal confidential communications from the petitioner in order to defend against claims contained within the habeas petition; and, (4) the petitioner may re-assert the attorney-client privilege at any time, however, such re-assertion of the privilege will necessitate the habeas court dismissing with prejudice those portions of the habeas petition that allege ineffective assistance of counsel.
Count I: Deprivation of Effective Assistance of Counsel
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's trial defense counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d (1984) before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. It is indisputable fact that many times if one had foreknowledge of certain events, different courses might well have been taken. Likewise, a habeas court knowing the outcome of the trial "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commisioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
In the instant case, there are a plethora of allegations involving the performance of Attorney Ahern, however, there was a paucity of proof adduced at the habeas trial. To be sure, the petitioner did introduce the transcript of his trial thereby allowing the habeas court to ascertain what Attorney Ahern said on the record at the criminal trial. While virtually all of the items in the petition allege failures on the part of Attorney Ahern to do something, there was no proof at the habeas trial as to whether any of these alleged failures to act were indeed viable and what would have happened had he done these things. Consequently, there is no way that this court can conclude that the petitioner has met his burden of proof that he was the "victim" of ineffective assistance of counsel. A habeas court does not sit as an 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. This burden rests with the petitioner because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, 229 Conn. 397 at 419 (1994). There is, therefore, a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
Moreover it is not even necessary to consider whether a trial counsel's performance was deficient if the habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
In the instant case, the petitioner has presented affirmative evidence on two points that need to be addressed. First, the petitioner alleges that his attorney should have known about the existence of the photograph with which he was impeached so effectively at trial and should have counseled the petitioner against testifying. Second, the petitioner alleges that his trial defense counsel should have allowed the prosecutor to reopen his case after having rested to present the testimony of Travis Jenkins rather than to allow a pre-trial statement to be admitted under the authority of State v. Whelan, 200 Conn. 743 (1986). The Court is not persuaded that either situation merits relief.
As to the photographs, it is clear that the petitioner was aware of their existence. However, it is equally clear that he never advised Attorney Ahern about the existence of these photographs. It is disingenuous to now come into court and complain that his lawyer should have counseled him against testifying when his lawyer was figuratively "unarmed" as a result of an omission of the client. It is true that an attorney who fails to offer his or her client proper counsel at critical junctures in the trial may well be providing ineffective representation. There is, however, an important aspect to effective representation that is entirely within the control of the client. It is imperative that a client be honest with his own lawyer if he expects that lawyer to be able to effectively represent him or her in a criminal matter. Here, Attorney Ahern was unaware of the photographs although the petitioner was well aware. It is possible that had the petitioner shared this knowledge with his lawyer that Attorney Ahern's advice regarding testifying might have changed. Notwithstanding, the indisputable fact is that he did not share the knowledge. Consequently no complaint about this can be sustained.
Insofar as the Travis Jenkins issue, it is clear that Attorney Ahern had a legitimate and justifiable trial strategy When he objected to the state re-opening its case after it had rested to present the testimony of Travis Jenkins. This strategy meant that the state would not be allowed to present the live testimony of Travis Jenkins but was forced to rely upon the Whalen statement. Travis Jenkins was originally subpoenaed as a witness to the trial and failed to show up for his trial testimony. The state then introduced his pre-trial statement under the authority of Whalen. A few days later after the prosecution had rested, but before the case was submitted to the jury, Mr. Jenkins suddenly made his appearance at the court. Now, the state's attorney sought to reopen his case and put the live witness on the witness stand. Attorney Ahern suspected (probably for good reason) that this would not be good for his client and elected to object, thereby forcing the state to rely upon the Whalen statement. As such, this is a cogent and clearly thought out strategy that makes sense. It is inappropriate for a habeas court to second-guess a trial defense counsel's strategic decisions in the absence of clear evidence pointing to the error of that strategy.
Strategic decisions in a trial are the province of the trial defense counsel. ABA Standard for the Criminal Defense Function, Std. 4-5.2.1(b) which provides that "Strategic and tactical decisions should be made by defense counsel after consultation with the client where feasible and appropriate. Such decisions include what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made and what evidence should be introduced."
As already noted, a criminal defendant is entitled to the representation of trained and competent legal counsel. Notwithstanding, "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1984)." Yarborough v. Gentry, 540 U.S. (October 20, 2003). This court sincerely doubts that any defense attorney has ever conducted the perfect criminal trial. Consequently while Attorney Ahern's representation may well have been imperfect and there may well have been some things that he could have done differently, his representation was much more than merely constitutionally adequate.
Attorney Ahern was clearly perturbed that his performance in this case was under attack He did allow that there were a "lot of things" he could have done differently. He alluded to having many sleepless nights while he prepared and tried his client's case. It is clear that Attorney Ahern, as does this Court, believes that he did provide appropriate representation to the petitioner.
Count I of the petition is therefore denied.
Count II: Prosecutorial Misconduct
The respondent has properly raised the affirmative defense of procedural default as required by Miller v. Commissioner of Correction, 63 Conn.App. 726, 733-34 (2001). This habeas court does find the issue of prosecutorial misconduct to be procedurally defaulted. Moreover, the petitioner has failed to demonstrate any cause for the failure to do so or prejudice accruing to him thereby. Accordingly, this court will find that there is no basis upon which relief can be granted.
"Unless a habeas petitioner shows cause and prejudice, see Wainwright v. Sykes, 433 U.S. 72 (1977), a court may not reach the merits of: (a) successive claims that raise grounds identical to grounds heard and decided on the merits in a previous petition, Kuhlmann v. Wilson, 477 U.S. 436 (1986); (b) new claims, not previously raised, which constitute an abuse of the writ, McCleskey v. Zant, 499 U.S. 467 (1991); or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims, Murray v. Carrier, 477 U.S. 478 (1986)." Sawyer v. Whitley, 505 U.S. 333, 338 (1992).
The issue of prosecutorial misconduct, to the extent that it is viable, was an issue that more appropriately should have been raised in the direct appeal. It wasn't and the petitioner has failed to demonstrate any cause for that failure. Consequently, Count II of the petition is likewise denied.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge