Opinion
No. CV 00-0803561 S
February 10, 2005
MEMORANDUM OF DECISION
This is a habeas corpus petition brought by the Petitioner, Eric Floyd (hereinafter also "Floyd") making essentially two claims; that trial counsel was ineffective and that the Respondent violated the Petitioner's due process rights by withholding exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 86 (1963). Trial was held before this Court on January 22, 2004, February 23, 2004, April 12, 2004, August 16, 2004 and September 29, 2004 following which transcripts were ordered and briefs were filed by the parties subsequent to the receipt of the transcripts.
FACTS
A partial summary of the facts is contained in State v. Floyd, 253 Conn. 700, 703-04 (2000) in pertinent part as follows:
In the very early morning on January 21, 1994, Alex Delgado and the victim, Jose Avellanet, were walking on Clinton Avenue in Bridgeport when they were approached by the defendant who held what appeared to be a 9 mm gun. Delgado had known the defendant for several years. The defendant asked Delgado and the victim what they were doing there. Delgado responded that they `were just walking up the street.' As the defendant accused Delgado and the victim of being there to rob him, Delgado was punched in the back of his head and knocked to the ground. Simultaneously, Delgado became aware of the presence of another person, whom he did not recognize and who was not identified during the defendant's trial.
Delgado stood up and again told the defendant and the unidentified person that he and the victim were just walking on the street, and then asked the defendant and the unidentified person to let him and the victim leave. The defendant then fired his gun three or four times at the ground near Delgado's feet. Delgado then offered the defendant money and again asked the defendant to let him and the victim leave. The defendant took Delgado's money and jewelry, and the unidentified person took the victim's money.
Shortly thereafter, the defendant called out the name `Mickey,' and two men, who were farther up Clinton Avenue and whom Delgado could not identify, started running down the street toward Delgado and the others. At that point, Delgado turned and ran in the opposite direction. As he was running, he heard three or four gunshots flying and ricocheting around him. Delgado also heard the defendant shouting at him, demanding that he come back and stating that he knew where Delgado lived. Delgado ran around a corner and, at that point, could no longer see the defendant or the victim. Two other eyewitnesses, however, saw the defendant and Mickey fire multiple gun shots at the victim as he lay on the ground, after Delgado ran away . . . The police recovered four spend 9 mm cartridge casings . . . from the crime scene. On April 11, 1994, the Bridgeport Police arrested the defendant who was subsequently charged with the murder of the victim in violation of C.G.S. § 53a-54a(a) . . . At the conclusion of the trial the jury rendered a verdict of guilty of the crimes of murder The trial court sentenced the defendant to a total effective term of imprisonment of 55 years.
Additional facts and procedural history will be set forth as necessary.
STANDARD OF REVIEW
The "right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984). In Strickland v. Washington, supra, the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: The defendant must show: "(1) that counsel's representation fell below an objective standard of reasonableness, id. 687-88; and (2) that defense counsel's deficient performance prejudiced the defense, id. 694." As for the second prong of Strickland supra, the Petitioner is required "to demonstrate that there is a reasonable probability that the result of the proceedings would have been different had it not been for counsel's deficient performance. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Copas v. Commissioner of Correction, 234 Conn. 139, 154-55 (1995).
Furthermore, the Court should proceed to take up the Second Prong of Strickland, the Prejudice Prong, before the ineffectiveness of counsel claim. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland v. Washington, supra. 697.
In addition, this habeas court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency and inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case.
Finally, it is the Petitioner's burden to prove both prongs of Strickland v. Washington, supra.
ISSUES I. HAS THE PETITIONER MET HIS BURDEN OF PROVING THE SECOND PRONG OF STRICKLAND V. WASHINGTON, SUPRA I.E. THAT IF IT WERE NOT FOR THE INEFFECTIVENESS OF COUNSEL, THERE IS A REASONABLE PROBABILITY THAT THE OUTCOME WOULD HAVE BEEN DIFFERENT?As indicated above in the STANDARD OF REVIEW, the Habeas Court should take up this issue, often called the prejudice prong, before evaluating the effectiveness of counsel.
The short answer to the above question is No. The most damaging evidence against the Petitioner is that he was identified as the shooter by three individuals, namely Alex Delgado, Reginald Barry and Michael Younger. Although Delgado may not have seen the actual shooting, he did see the Petitioner with a gun, and the Petitioner shot at him, and he picked his photograph out of a photo identification array. In short, he identified the Petitioner at the scene with a gun and having fired the gun at least at Delgado as Delgado was running away and a few minutes later heard four or five more shots from the scene of the murder. Delgado's statement is Petitioner's Exhibit 2. Michael Younger specifically identified the Petitioner as the shooter of the victim in testifying during the trial. Barry testified for the State as did Delgado and Younger. Barry had also given a statement to the police identifying Floyd as firing five gunshots at the victim. When Barry testified he stated he did not remember the statement that he had given to the police. However, it was admitted as an inconsistent statement under State v. Whelan, 200 Conn. 745, 753 (1986). In State v. Floyd, 253 Conn. 700, 727 (2000) the court stated in pertinent part: "Our review of the record and transcripts shows that Barry's transcript and Delgado's testimony were substantially consistent with each other and with Younger's testimony." The Supreme Court went on to say further in footnote 19 on page 728 the following:
In his reply brief of February 7, 2005, Floyd criticizes Tymniak for not cross-examining Alex Delgado and Xionara Avellant, widow of the victim as to third-party culpability. However, it is speculation as to what either would say. Delgado is supposed to have identified Joel and Mickey as the shooters, but what is the foundation for his knowledge? Is it hearsay? and even it they did participate, that does not exculpate Floyd whom he already had identified as a shooter.
There are, as the dissent notes, some inconsistencies in the testimony of the three eyewitnesses. This is not surprising considering the violent and chaotic nature of the incident and the late hour of the night when it occurred. As the dissent also notes, some of the evidence suggests that both Delgado and Barry may have been at the scene in order to engage in criminal activity unrelated to the murder. Thus, certain inconsistencies in their testimony may be attributable to their desire to exculpate themselves from those activities, rather than their desire to inculpate the defendant. Thus, the testimony of the eyewitnesses is substantially consistent as it pertains to the essential question of the defendant's guilt.
As the Supreme Court also stated, "Younger testified that, after one of the men ran away, he saw the defendant fire several gunshots at the victim as he lay on the ground. Barry's statement indicated that the defendant fired approximately five gunshots at the victim as he lay on the ground." State v. Floyd, 233 Conn. 700, 728, note 19. Contrary to what Pattis stated, this was a strong identification case.
Accordingly, there is no question that the three witnesses who identified the Petitioner as the shooter of the victim were severely damaging to the Petitioner's case. The jury apparently believed them, and with this eyewitness testimony, despite any alleged errors on the part of Attorney Tymniak, testimony of these three eyewitnesses would have been sufficient for conviction, and, therefore, the Petitioner has not sustained his burden of proving that if it were not for the ineffectiveness of trial counsel, there is a reasonable probability that the outcome of the trial would have been different. Accordingly, the Petitioner has failed to meet the second prong of Strickland v. Washington, supra.
There are other reasons why there is not a reasonable probability that the result would have been different. These will be set forth hereafter as appropriate.
II. WAS ATTORNEY TYMNIAK'S PERFORMANCE AS PETITIONER'S COUNSEL AT THE CRIMINAL TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL?
The short answer to this question is also No.
Attorney Diane Polan who represents the Petitioner in this habeas case presented as an expert witness Attorney Norman Pattis of New Haven. Attorney Pattis' excellent reputation preceded him. This Court is very familiar with Attorney Pattis' reputation and success as a criminal defense attorney and had no problem qualifying him as an expert witness.
Attorney Pattis' (hereinafter also "Pattis") main claim against the performance of Attorney Tymniak is that Attorney Tymniak neither recognized nor used as a defense third-party culpability. He admits, however, in his testimony of April 12, 2004 (see Habeas Transcript at page 44) "There is a third-party tinge to it; third-party culpability, it's a very difficult defense."
In order to prove a defense of third-party culpability, Tymniak would have had to investigate as to whether other people at the scene were the shooters and whether other people knew who the shooters were. First, the witnesses who testified against the Petitioner indicated that there were other shooters, but identified the Petitioner as one of the shooters. The fact that another shooter may have been involved does not exculpate the Petitioner. Tymniak would have had to talk to various parties. The problem with that argument is as follows:
1. Since Attorney Tymniak is deceased and since no one was able to locate his file in regard to this case, we don't really know how much investigation he did do. He hired an investigator as to the identity of handwriting, and the Chief Public Defender's Office paid a $500 bill from the investigator. However, that does not mean that he did not do other investigation even on his own. It is pure speculation as to how much investigation he did. It is also pure speculation as to what he would have found from his investigation. There is no evidence that he could have located any of these witnesses, and if he had whether they would have talked to him. These individuals were other drug dealers, some of them members of the Latin Kings gang, and it is highly unlikely that they would have given him any worthwhile information. On page 47 of the Habeas Transcript of April 12, 2004, Pattis used the words ". . . and he may have been able to find witnesses that could have talked about these." The emphasis should be on the word may. Even Pattis conceded by that that it was speculative as to whether or not he would have found the witnesses.
It it is possible that Attorney Polan might have elicited relevant information from Attorney Tymniak if he had testified, but he was deceased at the time of the habeas trial, and there is nothing that could have been done about that.
Pattis also stated on page 46 of the April 12, 2004 habeas transcript (hereinafter the transcripts will be identified as HT for Habeas Transcript with the date and page): "Can I say that had that theme (he was talking about third-party culpability) been presented, the results would have been different? No. But I can say it's an available defense." It is true that Pattis was rehabilitated by Attorney Polan when he said "I was answering the latter portion. I don't know what would have happened. But it's reasonably probable that had a third-party culpability theme been presented to the jury, been stressed, been hammered home to each witness that was available, the outcome would have been different." (HT 4/12/04 pp. 49-50).
However, even that is speculation. When Pattis talks about "been hammered home to each witness that was available," it is speculation as to whether these witnesses would have been available to testify.
One of the alleged witnesses cited by Pattis was a man by the name of Troncoso. In cross-examination, Pattis admitted that whatever Mr. Troncoso would have said would have been inadmissible because it would have been hearsay. (HT 4/12/04, pp. 86-87). When Pattis was questioned by Senior Assistant State's Attorney C. Robert Satti, Jr., "In your opinion, would you agree with me that it would not be likely that Mr. Tymniak would call Mr. Troncoso as a witness in the trial of State v. Eric Floyd? Pattis' answer was "I might have made a run at it, but I can't say it's ineffective, per se." He further admitted that the police report of Detective Lyons indicated the reluctance of Mr. Troncoso to get involved and become part of the case (HT 4/12/04 p. 88). Further, Attorney Satti questioned Attorney Pattis as follows: "Now you would agree with me that in order to succeed on the issue of prejudice, counsel at this point would have to be able to prove that those individuals are actually available to testify at time of trial, correct?" Pattis answered as follows: "I can see that but for the presence of those individuals, and knowing what they say, this is a difficult petition to sustain." (HT 4/12/04 p. 169).
There was some testimony that a Mickey Lopez could have been one of the shooters. Any competent attorney for Mr. Lopez would have advised him, if there was a possibility of danger of his being arrested or being implicated, to refuse to answer on the grounds that his answer might tend to incriminate him under the Fifth Amendment to the United States Constitution.
Petitioner raised the issue in the habeas trial that Attorney Tymniak might have been ineffective in the way he presented an alibi defense. When Attorney Pattis was cross-examined by Attorney Satti, Satti stated: . . . You're not giving an opinion that he (Tymniak) was ineffective in presenting that defense, are you?" Pattis answered: "No, I was asked to come into the case because of my views about third-party culpability."
Additionally, this Court is aware that Floyd's father and Consuelo Roman for whom the party was given testified in the criminal trial that the Petitioner was at a party in Leominster, Massachusetts at the time of the killing. Apparently, the jury did not believe them. At the habeas trial, the Petitioner's father testified as to whether or not he gave train tickets to Attorney Tymniak. However, there is no credible evidence that the Petitioner used the train tickets to go to Massachusetts and/or when he went to Massachusetts, if he did. This Court does not find Attorney Tymniak ineffective as to an alibi defense.
After reviewing the testimony in the habeas trial, the exhibits and the briefs of the parties, and for the above reasons this Court finds that the Petitioner has not sustained his burden of proving the first prong of Strickland v. Washington, supra, namely that Attorney Paul Tymniak, trial counsel for the Petitioner at his criminal trial was ineffective in that his performance fell below the standard of competence of criminal defense attorneys in the area. Therefore, the claim of ineffective assistance of trial counsel is denied.
III. DID THE STATE VIOLATE THE PETITIONER'S DUE PROCESS RIGHTS BY VIOLATING THE REQUIREMENT SET FORTH IN BRADY V. MARYLAND, 373 U.S. 83 (1963)? CT Page 3028The short answer to this question is also No.
It is well-settled law that the State is constitutionally obligated to disclose certain information to a defendant. The principles of due process require the prosecution to disclose exculpatory evidence that is material to a defendant's guilt or punishment. Brady v. Maryland, supra. Id. 87.
In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material. Moore v. Illinois, 408 U.S. 786 (1972).
In another interesting case, the United States Supreme Court found that it is the duty of the State voluntarily to disclose material in its exclusive possession which would be exonerative or helpful to the defense, which the State would not affirmatively use to prove guilt and which it should not conceal. Giles v. Maryland, 386 U.S. 66, 101-02 (1967). However, there is a caveat to that in that evidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady v. Maryland, supra. See State v. Altrui, 188 Conn. 161, 177 (1982); also, State v. Dolphin, 195 Conn. 444, 445-6 (1985).
In the case at bar, Michael Younger (hereinafter also "Younger") had criminal charge(s) pending in the Judicial District of Fairfield at the time that he testified against the Petitioner in the Petitioner's criminal trial. The Petitioner had requested an evidentiary hearing to determine whether a plea agreement between the State and Younger had been disclosed to the trial court and to defense counsel before Younger had testified. Although the trial court, Gormley, J., denied the request for an evidentiary hearing, the State Supreme Court ordered the trial court to hold an evidentiary hearing to determine whether Younger and the State had a plea agreement when Younger testified at trial. Judge Gormley conducted such a hearing and held that there was not an undisclosed, implied plea agreement between Younger and the State. The State Supreme Court stated in State v. Floyd, 253 Conn. 700, 739 (2000) in pertinent part as follows: "We conclude that the trial court reasonably could have found, based on the evidence presented, that there was no implied plea agreement between Younger and the State . . . accordingly, we conclude that the trial court's factual finding that there was no such implied agreement must stand." Id. 740.
The State Supreme Court further held: "The jury reasonably could have inferred from Younger's testimony that even though he did not have a specific deal with the State and did not know of any past consideration for his testimony, his pending charges provided a motivation for him to testify favorably for the state. Indeed, in closing arguments, defense counsel urged the jury to make that very inference. See Footnote 20 of this opinion. Furthermore, the trial court instructed the jury that it could consider whether Younger was expecting favorable treatment from the State in the case pending against him in deciding whether Younger had any bias, interest or motive to testify falsely . . . We conclude that there is no reasonable probability that the jury would have reached a different verdict had the State disclosed the suppressed evidence. Therefore, the evidence was not material under Brady. Accordingly, the defendant's Brady claim must fail." Id. 745-6 (Emphasis added).
Although the Connecticut Supreme Court did not find the alleged Brady violation material, the Petitioner claims that there were additional Brady violations which added to the alleged Brady violation concerning Younger would constitute a material Brady violation. This Court will now examine the Petitioner's claims of additional Brady violations.
1. The Petitioner claims that the second page of the report of Bridgeport Police Sergeant J. Sherbo (hereinafter "Sherbo"), Petitioner's Exhibit 11, was suppressed. However, Attorney Satti testified that he had offered the report to Attorney Tymniak during the trial in 1995. A review of the transcript of December 5, 1995 which is part of Petitioner's Exhibit 13 reflects on pages 114-17 that that in fact occurred. The dialogue went like this:
Question by Attorney Tymniak "Does the officer have any notes that he can refer to so that I am not testifying for him?" Attorney Satti replied, "Well, his report's here. If he wants it he can have it." Attorney Tymniak then goes on with the following question: "Officer, I am going to give you your report so you can refresh your recollection if you need to as I am asking questions. I would appreciate it if you'd examine your report there to see if you can tell us when the first time you went to Floyd's house was." Subsequently Sherbo answered: "That's why I'm going to have to look if it's in here. According to these reports that I have that you gave me, April 11 is the day the warrant was executed on Clinton Avenue which I was there." Clearly, then, Sherbo had his report in front of him when being questioned by Attorney Tymniak. Sherbo later identified his report as eight pieces of paper. On September 29, 2004, Sherbo testified before this Court that he only had eight pages of reports and they were Respondent's Exhibit B. This Court has reviewed Respondent's Exhibit 13 and it does contain a duplicate of what is Petitioner's Exhibit 11, the page in question which the Petitioner has claimed was not turned over to Attorney Tymniak. However, based upon the testimony of Sherbo during the criminal trial which this Court has identified as Petitioner's Exhibit 13, the December 5, 1995 Transcript, it is clear that Attorney Tymniak was cross-examining Sherbo regarding those eight pages including Petitioner's Exhibit 11 which is part of the eight pages. Attorney Satti testified before this Court that he turned over the report to Attorney Tymniak during the trial in 1995. The transcript of the December 5, 1995 exchange, Petitioner's Exhibit 13, supports Attorney Satti's testimony. The Court has no reason to doubt the word of Attorney Satti or Sherbo and finds their testimony credible." This Court concludes that Petitioner's Exhibit 11 was made available to Attorney Tymniak at least during the trial when he was cross-examining Sherbo. As stated above, case law has held that "Evidence known to the defendant or his counsel before trial, or that is disclosed even at trial, is not considered suppressed as that term is used in Brady." (Emphasis added.) Accordingly, this Court concludes that that portion of Sherbo's report identified as Petitioner's Exhibit 11 was not suppressed and was made available to the defense at an appropriate time and, therefore, was not a Brady violation. Further, a review of Petitioner's Exhibit 11 describes an interview with Auggie Avellant, brother of the victim. "He told the undersigned that Jesus told him that Delgado said that Joel and Mickey did the shooting. Auggie also believes that Jesus knows more than what he is telling. Another follow-up will be conducted with Jesus Davila. Jose Avellant was known to sell drugs from the Calypso Bar located on East Main Street." Even if Attorney Tymniak had requested and been granted a continuance to investigate this, the report contains double and triple hearsay, and there is nothing in that page that proves that Attorney Tymniak could have found out any information as to third-party culpability if he had investigated the comments made in Petitioner's Exhibit 11. It is pure speculation to believe that Delgado would have stated this information in court or that Jesus Davila would have given up any information. They might well have exercised their Fifth Amendment Rights. Certainly, if Joel or Mickey could have been identified, they would hardly have admitted to the shooting. It should also be noted that there was no evidence regarding the availability of these witnesses. This Court concludes that this page was not suppressed in violation of Brady, and even if it had been, it is speculation as to what benefit it would have been to the Petitioner at his criminal trial.
2. As for the statement from Luis Troncoso, which Petitioner claims was suppressed, the information contained in Troncoso's statement was disclosed to the defense before the hearing in probable cause. The material which was given to the defendant's attorney was given on May 24, 1994, and it wasn't until June 9, 1994 that the hearing in probable cause took place. The disclosure made on May 24, 1994 is contained in Petitioner's Exihibit 1. Petitioner's Exhibit 5 contains the disclosure of the actual statement of Luis Troncoso taken on January 26, 1994 and provided by supplemental disclosure dated November 8, 1995, Petitioner's Exhibit 5, which was prior to the trial which commenced on November 28, 1995. Clearly, then, the Troncoso statement was not suppressed.
3. As for the statement of Michael Younger, the Respondent claims that the statement was turned over to Attorney Tymniak at the time of trial. The statement is Petitioner's Exhibit 12. The Petitioner claims that it was not turned over until after Michael Younger testified. This was not in conflict with the Rules of Court at that time, and according to the case law previously cited, "Evidence known to the defendant or his counsel before trial, or that is disclosed even at trial, is not considered suppressed as that term is used in Brady." (Emphasis added.) Petitioner has conceded that the Younger statement was turned over to Attorney Tymniak following the testimony of Mr. Younger. Therefore, it was not suppressed.
Accordingly, this Court concludes that the items mentioned by the Petitioner in his memorandum as being suppressed in violation of Brady were not in fact suppressed. This Court further concludes that there was no Brady violation and that the Petitioner's due process rights were not violated by any violation of Brady v. Maryland, supra. Petitioner seems to believe that if these alleged additional violations of Brady were brought to the attention of the Supreme Court, the conviction would have been overturned. He bases that primarily on the claim that the vote for conviction was 3-2, two justices dissenting. This Court concludes that because these additional alleged Brady violations were not in fact Brady violations, the Supreme Court would have come to the same conclusion that it did. Even supposing the Petitioner had some merit to this claim, perhaps there should have been a rehearing en banc by the State Supreme Court. A motion was filed for same (Petitioner's Exhibit 25), but there is no evidence before this Court that it was granted.
CONCLUSION
For the foregoing reasons, the petition for habeas corpus is denied.
Rittenband, JTR