Opinion
No. CV 02-0814300 S
July 23, 2004
MEMORANDUM OF DECISION
This is a habeas corpus petition brought in three counts by the Petitioner, Bennie Gray, Jr. (hereinafter also "Gray") on March 25, 2002. The applicable complaint is the Substitute Sixth Amended Petition dated March 19, 2004. The First Count claims actual innocence; the Second Count claims that there was insufficient evidence produced at the second probable cause hearing, that the "new evidence" was insufficient to change the dismissal ruling of Miano, J., at the first probable cause hearing. In the second hearing, Parker, J. found probable cause; the Third Count claims ineffective assistance of the part of Gray's attorney, Burton Weinstein of Bridgeport, which includes a claim of conflict of interest on the part of Attorney Weinstein (hereinafter also "Weinstein"); the Fourth Count is a claim that Weinstein was not only ineffective but also was guilty of intentional conduct against the Petitioner's best interest as a result of his alleged conflict of interest; the Fifth Count claims that Petitioner's plea of nolo contendere was not done knowingly, intelligently and voluntarily because not only was he denied effective assistance of counsel but he was also not told that the State would seek to obtain one half of the funds from his expected inheritance of $57,750 for the cost of his incarceration.
This habeas case consumed twenty-nine days of trial from January 14, 2004 at various dates through April 1, 2004 as well as two days prior thereto for pretrial motions and following the submission of briefs oral argument was heard on July 7, 2004.
At the time of the hearing, Petitioner's counsel filed a Motion to Amend the Substitute Sixth Amended Petition. The Court sees no prejudice to the Respondent and grants the motion.
This is the longest habeas trial conducted by this Court. It is also troubling because based upon the evidence produced at the habeas trial, it is not clear to this Court as to who committed the killing. Attorney Donald O'Brien of Avon did a very thorough job in presenting a very comprehensive and passionate case on behalf of the Petitioner, and Attorney Kevin Kane, the Chief State's Attorney for the Judicial District of New London did an excellent job in cross-examination of the Petitioner's witnesses. It was a pleasure to preside over this trial with such experienced and competent trial attorneys. The evidence was illuminating but sufficiently complex to make this a difficult decision for the Court.
There are two preliminary issues which this Court believes should be raised at this point. As indicated above it is not clear to this Court as to who committed the killing of the victim, DeJohn Strong. It is just as likely, if not more so, that Tavorus Fluker, the Petitioner's cousin, did the shooting than the Petitioner, Bernie Gray. This leads to the interesting question which has never been addressed by any federal or state court; namely, if the habeas court has a reasonable doubt as to the guilt of the Petitioner, does that satisfy the second prong of Strickland v. Washington, 466 U.S. 668, 686 (1984), that if it were not for the ineffectiveness of trial counsel, there is a reasonable probability that the outcome of the case would have been different, i.e. favorable to the Petitioner. The answer has to be no. It is still speculation as to what a jury or another judge in a court case would find at the trial of the underlying criminal case. Perhaps, this is addressed in Hill v. Lockhart, 474 U.S. 52, 59-60 (1989), in which the court stated: "As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard to the `idiosyncrasies of the particular decision maker.' "(Emphasis added.) At oral argument, Attorney Kane claimed that everybody has some idiosyncrasies. This Court is not sure what idiosyncrasies it has, but the words "should be made objectively" would appear to mean that the Habeas Court finding reasonable doubt does not mean that a jury or another judge in a court trial would also find reasonable doubt. This, of course, brings us to the issue of what is speculation? There are two Appellate Court cases to which this Court will look for guidance. In Toccaline v. Commissioner of Correction, 80 Conn. App. 792 (2004), the Appellate Court reversed the Habeas Court's granting of a habeas petition stating, in effect, that most if not all of that Court's conclusions were speculative and thus the second prong of Strickland was not met. In addition, in Toccaline, the Habeas Court stated on page 27 of its Memorandum of Decision in pertinent part: "During the habeas trial when it became apparent that the Petitioner had a legitimate alibi for June 29, 1996 and September 7, 1996, the Respondent presented Bonnie C., and Joy C. (aunt and mother of the alleged victim), to testify that they were mistaken (in their criminal trial testimony) and that in fact these incidents had all occurred on the same dates in 1995. This was an incredible revelation . . . These incorrect dates which were given to MC (the alleged victim) by them, is close to perjury and taints the entire criminal trial . . . False testimony strikes at the very heart of prejudice against the defendant . . ." Id. p. 29. In looking at Lockhart v. Fretwell, 506 U.S. 364 (1993), the Court stated, inter alia: "The prejudice component . . . focuses on the question . . . renders the result of the trial unreliable or the proceedings fundamentally unfair." (Emphasis added.) The Appellate Court in Toccaline did not address the false testimony issue and, therefore, this Court has to infer that the Appellate Court found this issue/conclusion to be too speculative.
Moreover, the evidence admitted at a criminal trial would not necessarily be the evidence admitted at the habeas trial.
In contrast is the recent Appellate Court decision of Hernandez v. Commissioner, 82 Conn. App. 701 (2004), in which the Appellate Court agreed with the habeas court that counsel had been ineffective but overturned the habeas court's finding that the second prong of Strickland had not been met. The Appellate Court seemed to conclude that the Petitioner had had death threats from the gang of which he had previously been a member, and when he was in proximity to members of the gang, he thought one of the members had pulled out a gun to shoot him and, therefore, the petitioner fired in self-defense. The Appellate Court also found that the State's case was weak in that the trial judge had already excluded one witness before the plea, that the remaining witness and the self-defense argument were sufficient to conclude that there was a reasonable probability that the result would have been different. Apparently, in this case, the Appellate Court did not find that to be speculation.
Therefore, the question is what is speculation? This Court can only conclude that speculation is in the eyes of the beholder.
FACTS
On November 17, 1997 at approximately 10:30 p.m., DeJohn Strong (hereinafter also "Strong") was shot and killed on a grassy area adjacent to a driveway at 43 Michael Road in New London, Connecticut. Shortly after the killing New London police interviewed Arthur Wright (hereinafter also "Wright"). Wright claimed that Gray was in the building in which Wright lived, and when Wright stopped Gray for a few moments, Gray told him that he was going to rob Strong and that Wright should not put his arms around Gray or hug him because he, Gray, was carrying a gun. Primarily on the basis of Wright's statement, the New London police sought Gray for the murder of Strong. Gray turned himself in the next day to New London police, and shortly thereafter Gray's cousin, Tavorus Fluker (hereinafter also "Fluker") turned himself in and was charged with the murder of Strong. Wright had indicated that Fluker and Gray were responsible for the murder of Strong and also indicated that Fluker and Gray used a red Suzuki to leave the scene of the crime with Fluker driving and Gray as a passenger.
It was revealed in the police report that Wright had asked for $100 from the police to talk to them about what happened. After short negotiations, Wright agreed to talk for $10 which was paid to him by the police. Evelyn Gray, who had known Weinstein from the past, retained him to represent her son, Bennie Gray, for a retainer of $13,000. Weinstein testified at the habeas trial that Wright had offered, via a telephone call, to testify in favor of Gray if Weinstein would compensate him for that testimony, which Weinstein refused to do. These offers by Wright seriously impeached his credibility. Moreover, he was a convicted felon with a long felony record and subsequent to his conversations with the police and Weinstein he was arrested for a home invasion (burglary). Wright testified at the habeas trial, and this Court found him to be totally lacking in credibility.
Subsequent to Gray's arrest, there was a probable cause hearing conducted by Judge Thomas Miano. The main evidence against Gray was the testimony of Wright. Judge Miano denied the application for probable cause.
Subsequently, the police found clothing which had been dropped off near Shaw's supermarket in Waterford allegedly by Gray and Fluker and also found a .38 caliber revolver in a storm drain at the same location. This evidence plus additional evidence and Wright's testimony was persuasive enough for Judge Thomas Parker to find probable cause in the second probable cause hearing. Both Gray and Fluker were held on the charge of the murder of Strong.
In May 1997, following the probable cause hearings, Evelyn Gray was killed in a serious automobile accident with a tractor-trailer. Weinstein quickly moved to preserve the evidence of the accident, through photographs, etc. for a potential wrongful death suit against the trucking company. He also filed an application through the probate court for Debra Bryant, Evelyn Gray's sister and Bennie Gray's aunt, to be administratix of the Estate of Evelyn Gray. It became clear from the testimony in the habeas trial that Weinstein was attempting to be appointed as the attorney for the Estate in a wrongful death claim against the trucking company. Subsequently, Gray pleaded guilty to possession of heroin with intent to sell and on July 24, 1998 was sentenced to three years to serve.
On or about August 17, 1998, Weinstein furnished a Self Defense Statement for Gray to sign. (Petitioner's Exhibit 17 attached hereto as Schedule B.) In essence, it contained a statement that when Bennie was outside of the Suzuki with Fluker in the driver's seat Strong approached, reached for a metallic object which he started to take out of his pocket and that Gray, fearing that it was a gun, shot Strong. This was presumably the position taken by Fluker because it was approved with insignificant changes by Attorney Carol Comerford (hereinafter also "Comerford"), counsel for Fluker. Gray refused to sign it and told Weinstein he wanted to go to trial.
Sometime in August 1998 but prior to August 24, 1998, Weinstein and Comerford met with Judge Susan Handy, Presiding Judge for criminal cases at the New London Judicial District. Although Weinstein did not have Gray's signature on the self-defense statement, he verbally presented the self-defense argument at the pretrial conference aforementioned. Whether it was because of that defense or because of the concerns of Assistant State's Attorney Michael Regan, who also attended the pretrial conference, that Arthur Wright's testimony was weak, he agreed to change the charge from Murder to Manslaughter with a Firearm and agreed that the sentence, as part of a plea bargain, would be a maximum of twenty years with Gray through Weinstein having a right to argue for a lesser sentence at the time of sentencing. Attorney Regan said that he would at time of sentencing request that the court sentence Gray to the full twenty years to run consecutive to the three-year sentence he was already serving which had been imposed on July 24, 1998. Weinstein presented this offer in a letter to Gray dated August 24, 1998, Petitioner's Exhibit 35, a copy of which is attached hereto as Schedule A. The letter will be discussed hereafter. Gray refused to sign the letter and still insisted on going to trial on the murder charge.
September 10, 1998 was the scheduled date for a status conference in open court with the Court. At the courthouse on said date Weinstein tried to persuade Gray to accept the aforementioned plea bargain arrangement. Gray resisted until Weinstein informed him that if Gray insisted on going to trial, Fluker would testify against him and say that Gray was the shooter. Gray still resisted the plea bargain arrangement until his sister, Dwanna Gray, and his grandmother both urged him to accept the plea bargain because if he were found guilty of murder he could receive up to sixty years, life in prison without parole. Gray told Weinstein that he had an alibi, which he claims he never brought up before because he didn't think it was necessary believing that the State did not have enough evidence to convict him. However, once he learned that Fluker would testify against him, he raised the alibi defense. Weinstein testified that Gray did not raise the alibi defense until after the plea described hereafter had been taken by Judge Miano, but wasn't sure. Gray insisted that he had told Weinstein of the alibi defense prior to taking the plea. Additionally, their testimony at the habeas trial was in conflict in that Gray said he told Weinstein that his alibi witness was Tiffany Yard (hereinafter also "Yard"), and Weinstein testified that Gray had never given him the name of an alibi witness.
Gray reluctantly agreed to accept the plea bargain arrangement and pleaded nolo contendere to the charge of Manslaughter with a Firearm which carried a five-year minimum and according to the plea bargain agreement, a twenty-year maximum. Judge Miano sentenced him to twenty years consecutive to the three-year sentence which had been imposed in July of that year which is exactly what the State requested. Gray maintained at the habeas trial that Weinstein had told him privately that he would get only a six-year sentence and that based upon that representation and the representation in the letter of August 24, 1998 (Schedule A) he was to receive only a five-year sentence concurrent to the three-year sentence, and on that basis he agreed to plead nolo contendere.
Following the imposition of the sentence of twenty years consecutive to three years, Gray claims that he fired Weinstein. Meanwhile, Fluker had pleaded guilty to hindering prosecution and violation of probation and received a sentence of eight years to serve. Sentencing of Gray was scheduled for November 17, 1998, coincidentally one year from the date of the killing. Gray stated he had fired Weinstein and wanted to withdraw his plea. Judge Miano urged Gray not to represent himself. Weinstein did make an argument on behalf of Gray, and Gray also spoke at the time of sentencing. By pleading nolo contendere and seeking to withdraw his plea, it was apparent that Gray still denied shooting Strong. Judge Miano sentenced him to twenty years imprisonment to run consecutively to the three years he was already serving.
This habeas corpus petition followed. Further facts will be set forth as necessary hereafter.
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). To prove prejudice regarding a guilty plea, a Petitioner must show that, but for counsel's errors, the Petitioner would have insisted on going on to trial. Hill v. Lockhardt, 474 U.S. 52, 59 (1985). However, the Petitioner has to prove more than that he would have gone to trial. He has to show the likelihood of a more favorable outcome than the plea bargain achieved with the allegedly ineffective assistance of counsel. In other words, he would have to prove not only that he would have insisted on going to trial but that there is a reasonable probability that the outcome of the trial would have been favorable to him. See Copas v. Commissioner of Correction, 234 Conn. 139, 156, 157 (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.
To answer this question the Court has to look at what would have happened if Gray had not pleaded nolo contendere and had gone to trial before a jury. There are three scenarios for a potential trial:
(a) To go to trial on the basis that the State did not have enough evidence for the jury to convict him.
(b) To go forward with the self-defense defense as described under FACTS. The problem with this scenario is that Gray specifically rejected it as the basis for a trial defense. Even if he had gone forward with this defense, Fluker would have testified on his behalf and Gray would have had to testify that Gray was the shooter of the gun that killed Strong. Evidence would be before the jury that both Strong and Gray were drug dealers, and it is questionable as to whether Gray would have been acquitted. There is no way of knowing whether Gray's criminal activity with drugs would have an adverse effect upon the jury and whether Fluker and Gray would have been believed. Further, there was evidence which could have been produced by the victim's widow that the victim was already talking to his wife on his cell phone when he was shot. This would contradict claims by Gray and Fluker that the victim was taking the cell phone out of his pocket which Gray and Fluker had thought was a gun.
(c) If Gray had followed the strategy set forth in Paragraph (a) hereof, namely that the State did not have enough evidence to convict him, he might, in his defense, have presented an alibi witness, namely Tiffany Yard who testified at the habeas trial. The problem with Tiffany Yard's testimony as revealed at the habeas trial is that she could not specify the time of the evening when she saw Gray in the building. She knew it was in the evening but could not say at what time she saw him, and, therefore, could not place him in the building at approximately 10:30 p.m. when the shooting took place. Additionally, she testified that when she and a girlfriend were entering the building she saw both Gray and Fluker leaving the building. This is in conflict with Gray's testimony that he was leaving the building alone and that Fluker was in the Suzuki at the time Gray was leaving the building. Perhaps, if Tiffany Yard, who was 15 years of age at the time of the shooting, had been interviewed in 1997 or 1998, she would have had a better memory of both the time she saw Gray and whether or not she saw Gray and Fluker together.
The first scenario, paragraph (a) is Gray's claim that the State did not have enough evidence to convict him. An examination of the evidence against him is appropriate to determine whether Gray has satisfied the prejudice prong of Strickland v. Washington, supra.
1. The Testimony of Arthur Wright. Admittedly he is seriously lacking in credibility, but he does claim that Gray told him he was going to rob Strong and that he had a gun in his pocket. Wright also saw the Suzuki although he did not see the actual shooting. Alone, his testimony probably would not be credible. However, added to the other evidence it is possible the jury could believe him.
2. The Testimony of Fluker. Fluker would testify against Gray according to his attorney, Comerford. It would be natural for him to testify against Gray, because if Gray were found not guilty, the State might take another look at Fluker as the shooter. It is clear that one of the two did the shooting, and it would be in Fluker's best interest to have the jury find Gray guilty of the shooting.
Fluker would have clearly placed Gray at the scene and in the Suzuki and doing the shooting. Fluker would have identified Strong as a drug dealer and Gray as a drug dealer and that at the very least the purpose of the meeting between Strong and Gray was to sell drugs. Whether Gray testified or not, the jury would have learned that he was a drug dealer. Further, there is no motive for Fluker to shoot Strong. There is no evidence that Fluker was dealing in drugs.
The problem with Fluker's testimony is that he gave at least three versions of what happened. Since he approved the Self Defense Statement, a copy of which is attached hereto as Schedule B, his testimony on one occasion would be that Gray was standing outside the Suzuki when he fired the shots that killed Strong. The problem with that version is that if Gray were standing outside, then how did the gunshot residue or elements thereof get onto the steering wheel and the door handle of the driver's side? Fluker gave two other versions when he testified at the habeas trial. First, he testified that Gray was in the passenger seat, and when he saw Strong approaching the Suzuki he leaned across Fluker holding the gun on or near the windowsill of the driver's side, the window being open, and shot from that position which could explain why the gunshot residue or elements thereof appeared on the steering wheel and the handle of the driver's door. However, one version by Fluker was that he, Fluker, leaned back in his seat for Gray to be across him when shooting, and another version is that he had leaned forward toward the steering wheel and Gray had been across his back when doing the shooting. As to the latter version, no gunshot residue was found on the front of the driver's vertical seat. The most likely version consistent with the facts would be that Fluker leaned back and Gray leaned across him to do the shooting. However, these three versions could be used against him as being inconsistent to impeach his credibility.
3. Motive. There is no evidence of any motive on the part of Fluker. Gray, on the other hand, was either going to rob Strong as testified by Arthur Wright or it was a drug deal gone bad between two drug dealers, Gray believing that when Strong took out a metal object, he, Gray, thought it was a gun and fired in self-defense, or that it was a revenge killing by Gray. This would be based on the fact that Michael Robichard, an associate of Gray in the drug business was lured to an apartment in Danielson, Connecticut by Strong and/or his associates and beaten severely. There would also be testimony that the intended target of the beating was Gray himself, but Robichard went in his place. However, there is also evidence that subsequent to the beating there was a meeting at a McDonald's Restaurant with Strong, Joe Ellis who was Strong's right-hand man and Gray in which they made peace. Whether they really made peace or there was lingering resentment is speculative.
4. If Gray had testified, which would have been essential to counter Fluker, he would have testified as he did in the habeas trial that he was meeting Strong outside 43 Michael Road to do a drug deal. Calvin Sebastian, an associate of Strong, drove Strong to 43 Michael Road and then left. No weapon was found on or near Strong's body, and it is unlikely that Sebastian would have dropped him off alone or that Strong would be without a gun if there was still resentment between Strong and/or Ellis and Gray. This is an indication that peace was probably made at least on the part of Strong. Thus, one would have to conclude as Gray indicated, that this was to be just a simple drug deal. Gray would have further testified that he and Fluker, who is his cousin and had given him a ride, drove up to the area, parked a distance away from 43 Michael Road, then walked up to 43 Michael Road at which point Gray instructed Fluker to bring the Suzuki up to 43 Michael Road once Gray had determined that the area was safe. Gray claims that he went to a window on the second floor of one building until he saw Strong in a similar window in a building across the driveway. He then went down to meet Strong, passed Tiffany Yard on the way and opened the door to the building he was in and started to step out when he saw Strong approach the Suzuki and Fluker shoot Strong. Then, before Gray could get to the car, Fluker quickly drove away almost hitting Linda David's car as she was entering the driveway. Gray says that he then walked to his mother's house, left a message for Fluker on his cell phone telling him to stay at Fluker's mother's house in Groton, and he would meet him. Gray would further testify as he did in the habeas trial that he picked up an old white car called a bucket of bolts and drove that to Fluker's mother's house to meet Fluker. It is the only evidence that the bucket of bolts existed.
5. There was further evidence that Gray and Fluker were in the Suzuki together that night. Fluker had borrowed the Suzuki from his sister, Amechia Barfield, without her permission. The evening of the shooting, according to Amechia Barfield, Gray asked her if Fluker could take him home before returning the Suzuki. She said no, and the jury could infer from that that Fluker and Gray were in the Suzuki together. This would be in addition to Gray's own testimony mentioned above that he had driven to the scene with Fluker and watched Fluker shoot the victim.
6. Tavorus Fluker's brother, Gene Fluker, gave a statement to the New London police which he did not sign and later recanted. However, if the State presented him as a witness, it would show from his statement that he knew that his brother, Tavorus Fluker and Gray were going to rob and kill Strong the night of the killing. Gene Fluker's statement was that Gray told him that. Gene Fluker had apparently recanted what he had said to New London detectives. However, the information in these statements could have been admitted as inconsistent with his testimony.
7. The cell phone records of Strong's cell phone showed several calls between Strong and Gray on the day of the killing.
8. There was some evidence that people saw Gray and Fluker in the Suzuki earlier the day of the shooting, and as stated above, there was evidence that they were together in the Suzuki after the shooting. Fluker and Gray were at Gray's mother's house about 8:30 p.m. the night of the shooting with the red Suzuki.
In sum, the evidence against Gray consisted primarily of the testimony of Fluker, evidence from statements that Fluker and Gray were together in the Suzuki before the killing and after the killing, Gray's own admission that he was at the scene, Gene Fluker's statement, although recanted, that Gray had told him that he and Tavorus Fluker were going to rob and kill Strong, the testimony of Arthur Wright who did not appear to be credible to this Court, but could have been more credible at the criminal trial when taken with the other evidence against Gray, and the motive that Gray had in meeting Strong, namely for revenge or to do a drug deal.
II. EVIDENCE IN FAVOR OF GRAY CT Page 11282
1. There is evidence that after the shooting, the Suzuki, regardless of who was in it, was driven onto Anthony Road and onto other streets heading for Waterford, Connecticut. It stopped in a parking lot at a Shaw's Supermarket in Waterford near the Boston Post Road and the occupant or occupants dropped off a pile of clothing and a .38 revolver was concealed in a storm drain. The bullets found in Strong's body matched this particular gun. A pair of gloves were found which according to Robert O'Brien, the criminalist with the State Forensic Laboratory, contained all three elements of gunshot residue which are lead, barium and antimony. However, the gloves were tried on by Gray at the habeas trial and clearly did not fit him. Petitioner's counsel had Gray try on clothing that was found at Shaw's and the clothing he was wearing when he turned himself in. His argument is that baggy clothing was the style being used in 1997 and that Fluker, at the time of the shooting, weighed approximately 135 pounds and Gray weighed 180 pounds and that, therefore, the clothing found at Shaw's was more likely to fit Fluker than Gray. It's an interesting theory, but certainly not conclusive. However, it can be concluded that there was no forensic evidence linking Gray to the killing.
At the habeas trial Fluker did not try on the gloves and clothing because he had put on a substantial amount of weight since he had been in prison. He weighed approximately 135 pounds in November 1997 at the time of the killing and approximately 200 pounds at the time he testified at the habeas trial.
No fingerprints nor any part of gunshot residue was found on the passenger side of the Suzuki. Fluker testified at the habeas trial that Gray was not wearing gloves. This raises the question of whether Gray was wearing gloves when he admittedly drove to the scene in the passenger seat with Fluker driving. If he was not wearing gloves at that time and subsequently exited the vehicle on the passenger side, then why were his fingerprints not on the passenger door? Possibly fingerprints were wiped clean. However, this still leaves the conclusion that there was no forensic evidence tying or linking Gray to ever being in the passenger side of the vehicle.
2. The Petitioner's counsel recalled Robert O'Brien as to the evidence of gunshot residue on the Suzuki. Most of it was inconclusive, but he did state his opinion that it is "likely the driver did the shooting." O'Brien was not able to establish who wore the gloves or how the elements of gunshot residue got on the steering wheel and the driver's side door handle. He did, however, testify that the examination of the Suzuki showed no traces of gunshot residue or any elements thereof on the passenger side of the vehicle.
3. Grey's testimony that Fluker told him that he shot Strong because Strong "snuck up on him." Fluker would no doubt deny this at trial as well as deny that he was the shooter.
4. There is no evidence, other than the testimony of Fluker, that Gray was ever in the Suzuki just before the killing and in the minutes following the killing when the person driving the Suzuki fled the scene.
5. Linda David who was driving her car on Michael Road just as the Suzuki left the scene and was almost hit by the Suzuki saw only the driver in the Suzuki whom she recognized as Fluker. The witnesses who saw the Suzuki upon its leaving the scene of the killing, namely Mr. Jose Rosato, Mr. Strickland and Officer Ego of the Waterford Police Department, would all have testified that they did not see anyone in the passenger seat. This is in addition to the testimony of Linda David. Essentially, there was no evidence placing Gray in the Suzuki from the time it left Michael Road following the shooting until Gray and Fluker arrived at Fluker's mother's house in Groton.
6. This Court found Fluker to be a reluctant witness at the habeas trial who was less credible than Gray who appeared to be credible.
As far as the credibility of the witnesses is concerned, as to whether the evidence to be presented at the criminal trial would have been insufficient to convict the Petitioner, see Summerville v. Warden, 229 Conn. 397, 419 (1994), which states as to whether or not the evidence of guilt at a criminal trial was insufficient, ". . . habeas corpus is not designed to relitigate that issue." Petitioner's counsel has argued that Summerville does not apply because Summerville involved an actual criminal trial whereas the case at bar involves a plea followed by sentencing. This Court finds this to be a distinction without a difference. Petitioner has claimed that there was insufficient evidence to convict the Petitioner if the case had gone to trial, and the Court finds no difference between the Summerville standard as it applies to a trial from which a habeas corpus petition is raised and a plea of nolo contendere from which a habeas corpus petition is raised. The sufficiency of the evidence by the State is the issue in both situations, and Summerville states that the habeas court is not to evaluate the sufficiency of the evidence at least as it applies to the credibility of the witnesses. As to the claim of actual innocence, the Court will address that issue hereafter.
If the standard for granting a habeas petition were that the court could grant the petition if it concluded that there was a reasonable doubt as to the guilt of the defendant/petitioner, this Court, based upon the evidence that has been presented at this habeas trial would probably find reasonable doubt as to the guilt of the defendant/Petitioner. It appears that there is more evidence to have convicted Fluker than Gray. However, that is not the standard. The standard is: Is there a reasonable probability that if it were not for the ineffectiveness of counsel for the defendant/Petitioner, Gray, there is a reasonable probability that the outcome would have been different? Based upon that standard, as much as the Court may have sympathy for the plight of the Petitioner, it cannot objectively say that there is a reasonable probability that the result would have been different. The State's evidence appears to be somewhat weak, but, of course, it depends upon whether Fluker would be believed rather than Gray, whether Arthur Wright would be believed and what effect Gray's drug dealing background would have. To conclude that there is a reasonable probability that the outcome would have been different if the Petitioner had gone to trial would have to be based upon speculation, and the Court cannot do that. Despite what appears to be a weakness in the State's case, there is sufficient evidence, if believed by the jury, to result in a conviction. Accordingly, the Petitioner has failed to sustain his burden of proving the second prong of Strickland v. Washington, supra; namely that if it were not for the ineffectiveness of Petitioner's counsel in the criminal matter, there is a reasonable probability that if the Petitioner had gone to trial, the result would have been different. On this basis alone, the Court must deny the petition for habeas corpus.
The Petitioner presented an expert witness on the standard of competence of a criminal defense attorney in the area, whether or not the actions or inactions of Attorney Weinstein fell below that standard and whether or not there was a reasonable probability that if it were not for counsel's ineffectiveness the result would have been different. The expert witness was Attorney John Stawicki who is an experienced criminal defense attorney, and the Court did qualify him as an expert witness in criminal defense work who also tried several habeas corpus petition cases. However, this Court is not bound by the opinion of Attorney Stawicki. Attorney Stawicki testified in effect that if Gray's insistence on a jury trial had been followed, in his opinion it was a triable case, The Court pinned him down on that and asked him whether or not assuming counsel was effective, and the case had gone to trial there was a reasonable probability that the outcome of the trial would have been different. He responded in the affirmative saying that Gray would be acquitted and based this opinion on his opinion that there was a lack of forensic evidence linking Gray to the crime. He believed that by calling witnesses such as Joe Ellis, Calvin Sebastian and other witnesses, there would be testimony that the dispute between Gray and Ellis had been resolved and that the purpose of the meeting on Michael Road was to make a drug transaction. He first stated that he would not determine whether or not to have Gray testify until after the State had rested its case in chief. However, he did admit that with the testimony of Fluker and if Gray testified, his involvement as a drug dealer in the New London area would be evidence to come before the jury and could be harmful. This is, of course, part of this Court's position. He also conceded that although he did not find Arthur Wright to be a credible witness, the jury could possibly believe him. He felt he could successfully cross-examine Fluker and destroy his credibility. Here again, this Court disagrees in that Fluker could make a compelling witness even though he appeared in his testimony at the habeas trial to be less credible than Gray. In any event Stawicki's testimony does not change the Court's opinion that it would be speculation to predict the outcome of a trial and, therefore, that the Court could not find and does not find that if it were not for the ineffective assistance of counsel, there would be a reasonable probability that the outcome of a trial would have been different.
III. WAS ATTORNEY WEINSTEIN'S PERFORMANCE AS PETITIONER'S COUNSEL INEFFECTIVE ASSISTANCE OF COUNSEL?
Attorney Burton Weinstein's reputation preceded him at the habeas trial. He did an outstanding job in the Tracey Thurman case in which he won a substantial verdict for her against the City of Torrington. This was a significant verdict in that the City of Torrington was found liable because its police department did not act sufficiently to protect Mrs. Thurman from assaults by her husband, Buck Thurman. This inspired legislation that mandates the police to make an arrest upon credible evidence of domestic violence. However, notwithstanding his substantial competence as an attorney, the Court will assume, arguendo, that the second prong of Strickland could be met and will, therefore, address Attorney Weinstein's performance regarding his client, Bennie Gray, Jr.
A. DID ATTORNEY WEINSTEIN HAVE A CONFLICT OF INTEREST?
The Petitioner claims that Weinstein had a conflict of interest in that he put his desire to represent the Estate of Evelyn Gray in a wrongful death lawsuit ahead of his commitment to his client to represent him properly in the criminal matter. Weinstein was not a stranger to Evelyn Gray. He had dealings with her in the past, and it was she who was instrumental in retaining Weinstein to represent her son, the Petitioner, in the criminal case. Weinstein was also acquainted with Ruby Teague who is the mother of Evelyn Gray and who became the guardian of Evelyn Gray's minor daughter following Evelyn Gray's death. As stated above, Evelyn Gray was killed in a horrible and tragic automobile accident in May 1998. Weinstein, being an experienced trial lawyer, made substantial efforts to preserve evidence of the accident, hire expert witnesses and have photographs taken as to the accident, etc. There was nothing wrong with this initiative by Weinstein. Weinstein then filed papers with the probate court to have Debra Bryant, Fluker's mother and Gray's aunt, appointed as Administratix of the Estate of Evelyn Gray. Petitioner also claims that Weinstein's purpose in having Debra Bryant appointed was to have her appoint him to handle the wrongful death suit against the trucking company which would be the defendant in that suit. Petitioner also claims that Weinstein wanted to please Debra Bryant so that she would appoint him to represent the estate in the wrongful death action, and as a result he placed the interest of Fluker, Debra Bryant's son, ahead of his interest in defending Gray. As the claim goes, Weinstein, contrary to Gray's wishes, did not want to go to trial on behalf of Gray because, as stated above, that would result in a conflict between Fluker and Gray and could result in Fluker's conviction. By pressuring Gray to accept a plea bargain that would entail a plea of nolo contendere and, of course, a guilty finding would let Fluker off the hook for the killing of Strong.
Weinstein was appointed later by a different administratrix, Attorney Deborah Tedford, he made the claim and/or brought suit against the trucking company and was able to recover approximately $750,000, the limit of the insurance coverage, and Weinstein received a fee of $195,000.
However, Debra Bryant was not appointed as the administratrix and by July 29, 1998, prior to Weinstein exerting pressure on Gray to take a plea bargain, Attorney Deborah Tedford (hereinafter also "Tedford") was appointed as administratix. Thus, Weinstein had no reason to please Debra Bryant once Attorney Tedford was appointed as administratrix. After Attorney Tedford's appointment was when Weinstein allegedly pressured Gray to take the plea bargain.
Attorney Join Stawicki (hereinafter also "Stawicki"), Petitioner's expert witness, when cross-examined by State's Attorney Kevin Kane as to whether the simple fact of Attorney Weinstein attempting to be appointed as attorney for the estate in the wrongful death action under the circumstances was a conflict of interest Stawicki said no.
Debra Bryant did not testify at the habeas trial.
The other aspect of the claim of conflict of interest against Weinstein is based upon his continued efforts to be appointed as attorney for the estate in the wrongful death action even after Attorney Tedford (hereinafter also "Tedford") was appointed as Administratrix of the Estate of Evelyn Gray. Tedford testified at the habeas trial that she wanted to hear from the children of Evelyn Gray who would be the beneficiaries of the Estate of Evelyn Gray regarding their preference as to who should represent the estate in the wrongful death action. Ruby Teague, the grandmother of Evelyn Gray's daughter and the daughter's guardian, preferred Weinstein. The Petitioner, Gray, opposed Weinstein and wanted to hire Attorney John Haymond of Hartford to represent the estate in the wrongful death action. At this point in August 1998 Gray was unhappy with the representation of Weinstein in his criminal case and obtained a promise from Attorney Haymond that he would bring Attorney Hubert Santos, a well-known and highly competent criminal defense attorney from Hartford, to represent Gray on the criminal case. Unfortunately for Gray, Attorney Santos was never produced as an attorney to represent him. Another son of Evelyn Gray was out-of-state and did not communicate with Tedford. Therefore, the remaining child of Evelyn Gray was Gray's sister, Dwanna Gray. There was a status conference for the criminal case at New London Superior Court scheduled for September 10, 1998. At that time and place Weinstein was still urging Gray to support him as the attorney for the estate in the wrongful death action. He also pressured Dwanna Gray into supporting him. According to Dwanna Gray (hereinafter also "Dwanna") Weinstein told her that if she did not trust him to handle the wrongful death action, then how could she trust him to represent Gray in the criminal matter and stated that if he did not represent Gray, Gray would probably serve life in prison. Weinstein persuaded Dwanna to call Tedford's office and say that she was in favor of Weinstein as the attorney in the wrongful death action. When Weinstein was questioned about this by Petitioner's attorney, Attorney Donald O'Brien (hereinafter also "O'Brien") as to whether or not he was near her when she made the telephone call, Weinstein replied that he may have been in that area. The Court finds this answer to be equivocal and indicative that he probably was next to her when she made the telephone call. Additionally, Weinstein admitted that a letter was written by him for Dwanna's signature approving of Weinstein as the attorney for the wrongful death action. See Petitioner's Exhibit 49 attached hereto as Schedule C. This is all indicative of Weinstein pressuring Dwanna to contact Tedford to let her know that she, Dwanna, approved of Weinstein to handle the wrongful death case. He also, according to Dwanna, pressured her to talk to her brother, Gray, to persuade him to accept the plea bargain. This communication with Dwanna the Court finds to have been improper.
The problems with the effect of the communications with Dwanna are as follows:
(1) The Court's notes from the trial indicate that the Court did not find Dwanna's testimony credible;
(2) After Dwanna made the phone call, Tedford's secretary, according to Tedford, told her that she had the feeling that someone was pressuring Dwanna to make the telephone call. Accordingly, Tedford called Dwanna at home either that evening or the following evening where there was no one to pressure her and asked her if she still wanted Weinstein as attorney for the wrongful death action, to which she replied yes. Tedford also testified that she contacted Attorney Thomas Boyce for a recommendation as to who to appoint as attorney in the wrongful death action. She testified that Boyce recommended Weinstein indicating that he was an experienced and effective trial lawyer and that Attorney Haymond who did a volume business in negligence actions would probably not have sufficient time to devote to the wrongful death action and, therefore, would not be as effective. Relying upon Ruby Teague's recommendation and Attorney Boyce's recommendation, Tedford appointed Weinstein as attorney for the wrongful death action although the actual appointment was not made until after Gray had pleaded nolo contendere on September 10, 1998.
When this Court asked Tedford what she would have done if she believed Dwanna Gray did not support Weinstein as attorney in the wrongful death action, she replied: "I don't know." Therefore, the Petitioner has not sustained his burden of proving that Weinstein's pressure on Dwanna Gray had an effect upon the appointment of Weinstein as attorney in the wrongful death action. It would be logical to conclude that Weinstein would probably have been appointed even if he had taken the case to trial. It should be noted that Ruby Teague supported Weinstein, and, of course, Attorney Boyce did as well.
The issue of whether Weinstein had a conflict of interest is somewhat complex. Assuming that he did pressure Dwanna Gray to make the telephone call and send a letter to Tedford in order to be approved as the attorney in the wrongful death suit, he no longer had a conflict with Debra Bryant or Tavorus Fluker, her son, because neither were in a position to influence Tedford as to the appointment of the attorney in the wrongful death suit. The conflict would appear to be that Weinstein pressured Dwanna Gray into urging the Petitioner to accept the plea bargain. Of course, Ruby Teague also urged the Petitioner to accept the plea bargain, and there is no evidence of Weinstein pressuring her. What would have been Weinstein's motive, then, to pressure Dwanna Gray and the Petitioner to accept the plea bargain? Although Weinstein should not have pressured Dwanna Gray to contact Tedford as she did, it is difficult to conclude that there was any gain to Weinstein by pressuring Dwanna and the Petitioner to accept the plea bargain. Acceptance of the plea bargain could not hinge on whether Weinstein was appointed as attorney for the Estate, and being appointed as attorney for the Estate did not hinge upon the acceptance of the plea bargain by the Petitioner.
Although Weinstein did not cover himself with glory on this particular issue, once Debra Bryant was out of the picture as to the appointment of Weinstein as the attorney for the Estate, there was nothing for Weinstein to gain by protecting Fluker, Debra Bryant's son, to the detriment of Weinstein's client, the Petitioner.
The Court, therefore, finds that despite some improper action by Weinstein, the Petitioner has not sustained his burden of proving that Weinstein had a conflict of interest.
B. WAS WEINSTEIN INEFFECTIVE IN HIS REPRESENTATION OF GRAY? CT Page 11288
There is no question that Weinstein misled Gray as to the terms of the plea bargain which he urged Gray to accept. The prime example of this is Weinstein's letter to Gray dated August 24, 1998, a copy of which is attached as Schedule A which is Petitioner's Exhibit 35. The letter is replete with misstatements. It was hand-delivered to Gray at a status conference that was held at New London Superior Court on August 25, 1998. Gray testified that he read the letter, did not want to accept the plea bargain and refused Weinstein's request to sign it. This is consistent with Weinstein's testimony as well.
The following statement contained in the letter demonstrates that it is misleading:
Judge Miano would take the plea and would be imposing the sentence. While there is no guarantee as to what the sentence would be within the legal range, he has indicated that the time you are now serving could run concurrently with the mandatory minimum of 5 years and you would get credit for the pretrial detention against the 5 years. If the plea bargain was accepted, you could be out in 3 years.
Grammatically, the "he" refers back to Judge Miano, and it is inconceivable to this Court that Judge Miano would indicate in advance the sentence he would impose in this case, and there is no evidence that he did. When questioned about this in the habeas trial, Weinstein explained that he didn't mean Judge Miano but rather the Assistant State's Attorney Michael Regan. This is hard to believe. Weinstein is a very learned man and showed an acute ability to parse words. When being cross-examined by Attorney O'Brien representing the Petitioner, Weinstein continually disputed words in O'Brien's questions. O'Brien would ask a question such as: "Isn't it obviously true that you told Bennie (Gray) that if he went to trial he would probably get a sentence of sixty years?" In such an instance Weinstein would question the use of the word "obviously" and/or "probably." He would reply to the effect that he questioned the premise of O'Brien's questions and specifically certain words that O'Brien used. Here, then, is an experienced attorney who has excellent command of the English language. Therefore, it is hard for this Court to believe that the aforementioned language in the letter was meant to refer to the Assistant State's Attorney and not Judge Miano.
Although the letter contains words such as "would" and "could," the net effect of the letter upon the Petitioner was to indicate that Judge Miano would sentence him to no more than five years in prison which would run concurrently with his existing sentence of three years. Gray, in his testimony in the habeas trial, claimed that verbally on September 10, 1998, the day of the plea, Weinstein had promised him that he would receive no more than six years. Further, Attorney Tedford testified that Weinstein had told her that Gray would receive a sentence of three to five years. (Hab. Tr. 2/17/04 p. 94.) The Court believes Gray based upon Weinstein's promise in the letter that he would receive five years. This Court has reviewed Judge Miano's canvass of the Petitioner on September 10, 1998 and finds it to be extensive and comprehensive and wonders why the Petitioner did not mention the promise by Weinstein of six or five years. This too sheds some doubt on his claim that Weinstein promised him that. However, the letter of August 24, 1998 and Weinstein's comments to Attorney Tedford overcome all these failings on the part of the Petitioner.
During the habeas trial, on cross-examination, Attorney Kane solicited from the Petitioner admissions that he never mentioned the promise of six years during the plea canvass or during the sentencing. Gray did not even mention it in his grievance filed with the Statewide Grievance Committee against Weinstein. Notwithstanding these admissions and Gray's telling Judge Miano that in July 1998 his attorney had promised him a suspended sentence for his drug conviction for which he received three years (If he complained then, why didn't he complain at the canvass and sentencing on the manslaughter case?), the Court concludes that it is more likely than not that Weinstein promised Gray a six-year sentence based primarily on what he originally stated in the August 24, 1998 letter and based upon Weinstein telling Tedford that Gray would receive three to five years.
Shortly before Gray finally agreed to plead nolo contendere, although very reluctantly, Weinstein informed him that Fluker would testify against him. This information may have also contributed to Gray's decision to plead as he did.
The other problem with the letter is the following sentence:
The State agreed that it would not make any recommendation or request for any particular sentence.
During the preliminaries to the plea and the canvass by Judge Miano, the State's Attorney said that he would be recommending the full twenty years (the plea bargain was a change of the charge from Murder to Manslaughter with a Firearm, a cap of a twenty-year sentence with a right to argue for less) to run consecutively to the three-year sentence Gray was already serving. Assistant State's Attorney Regan (hereinafter also "Regan") also made this recommendation at the time of sentencing on November 19, 1998. Judge Miano did impose a twenty-year sentence consecutive to the three-year sentence. When this Court at the habeas trial asked Weinstein why he did not object at the time of the plea or at the time of the sentencing that Regan's recommendation was contrary to the plea bargain agreement which he described in the letter of August 24, 1998, Weinstein replied that he "had the impression that the State's Attorney would not make a recommendation." (Emphasis added.) Regan did testify that during plea bargain negotiations he may have mentioned that he could have said that he would make no recommendation if Gray admitted to the crime, but when he learned that Gray would plead nolo contendere and not admit to the crime, he indicated that he would make the recommendation that he did. It is a wonder to this Court how Weinstein who is such an experienced, smart and knowledgeable attorney could have had such a misunderstanding of what Regan said he would do and why Weinstein did not put in the letter that the bargain was contingent upon Gray admitting guilt.
Weinstein testified in the habeas trial as well as in the civil trial which occurred subsequent to the sentencing of Gray that he had told Gray prior to the entering of the plea and again at sentencing and on the record in front of Judge Miano that because he had orally suggested a self-defense theory without the consent of Gray in a judicial pretrial, the document of which Gray had refused to sign (see Schedule B attached hereto), that it would be unethical for him as an attorney to continue to represent Gray if he would not accept the plea bargain or use the self-defense theory and go to trial on that basis, and that he, Weinstein, therefore, would have to withdraw as his attorney. This Court concludes that Weinstein's position had no merit. There is nothing unethical in taking a position in an off-the-record judicial pretrial and then having the defendant later as far as people present at the judicial pretrial would be concerned reject that position and insist on going to trial. There would be nothing unethical in the attorney continuing to represent the defendant in order to carry out the wishes of the defendant to go to trial, and it could be unethical to attempt to withdraw at that stage of the proceedings. This court has to conclude, therefore, that this threat to withdraw and the basis for it was just another attempt or tactic to pressure Gray into accepting the plea bargain which he eventually adopted.
Petitioner's counsel has maintained that the decision as to whether to go to trial should have been that of the defendant, and, of course, he is correct. However, in order to determine whether Weinstein was ineffective as Petitioner's counsel, the Court has to look at the result of his alleged ineffectiveness. If Gray had gone to trial as stated above on the charge of murder and had been convicted he would have faced a life sentence of sixty years without parole. Despite the improper actions taken by Weinstein in pressuring Gray to plead nolo contendere and accept the plea bargain, the question remains as to whether the result of a twenty-year sentence is better for the Petitioner than a life sentence of sixty years if he had been convicted of murder. If one draws the conclusion that the result of a twenty-year sentence is better for the Petitioner than going to trial, being convicted and receiving a sentence of life in prison, then the actions of Weinstein, regardless of how deplorable they may have been, were in the best interest of his client, the Petitioner. The Petitioner has persuaded this Court that Weinstein used improper tactics to pressure the Petitioner to plead nolo contendere and accept the plea bargain but has not met his burden of proving that Weinstein's actions constituted ineffective assistance of counsel in view of the result as opposed to the potential result.
Accordingly, this Court finds that the Petitioner has not sustained his burden of proving that Weinstein was ineffective in his representation of the Petitioner. For that reason alone, the petition should be denied.
SUBSTITUTE SIXTH AMENDED PETITION DATED MARCH 19, 2004 AS AMENDED
As to the First Count which claims actual innocence, the standard is set forth in Miller v. Commissioner, 242 Conn. 745 (1997), which held that in order to prove actual innocence, the Petitioner must do so by clear and convincing evidence so that no reasonable fact-finder could find the Petitioner guilty. For the reasons stated above, the Court cannot make this finding.
The Second Count claims that there was insufficient evidence produced at the second probable cause hearing before Parker J. to establish probable cause to arrest the Petitioner. The Court rejects this contention after a review of the transcript of the second probable cause hearing. Petitioner has also claimed that Weinstein promised to appeal the finding of probable cause at the second probable cause hearing and did not do so. It is undisputed that Weinstein did not appeal the second probable cause hearing result, but it is impossible to determine whether an appeal would have been successful, and, therefore, this claim does not meet the second prong of Strickland that there is a reasonable probability that the outcome would have been different.
The Third Count claims ineffective assistance of counsel. The Court has already ruled on this issue.
The Fourth Count claims that Weinstein intentionally tried to force the plea eventually made by Gray because it suited Weinstein's personal financial goal and he was simply not prepared to try the case. The Court must reject this contention for the reasons previously stated; namely that there is no evidence of motivation after July 1998 for Weinstein to force a plea for his own personal financial goal, and there is an absence of sufficient evidence to conclude that Weinstein was not prepared to try the case. He still had time to interview witnesses and prepare for the case because jury selection would not start until, at the earliest, September 15, 1998.
The Fifth Count claims that in addition to being denied effective assistance of counsel Petitioner was not told, presumably by the court or counsel, that the State would seek to obtain half of the funds from his expected inheritance of $57,750 for the cost of his incarceration. Despite Petitioner's claim that that is an additional sentence, there is no requirement that the Petitioner be told that in the conduct of the plea canvass by the court or that counsel had a duty to so inform him. Therefore, the Fifth Count is rejected.
The Respondent has filed as a special defense that the Petitioner is in procedural default and is unable to establish cause or prejudice to avoid procedural default. If one is to assume that Weinstein was ineffective and that this ineffectiveness resulted in prejudice to the Petitioner because there is a reasonable probability that if it were not for Weinstein's ineffectiveness, there is a reasonable probability that the outcome would have been different, then the ineffective assistance is the cause, and the prejudice is the sentence the Petitioner received. Accordingly, the Special Defense is rejected as is the claim of res judicata for the reasons described in this Court's decision denying Respondent's Motion to Dismiss earlier in this case.
CONCLUSION
The Court is troubled by this decision because it believes that there is more evidence pointing to Fluker as the shooter than to Gray. However, under the standards for habeas corpus, the Court has no choice but to reject the petition. The Court can suggest to the Petitioner that he could attempt to seek sentence review and/or persuade the State's Attorney for the Judicial District of New London to agree to a modification of sentence. However, for all of the reasons stated above, the petition for habeas corpus is denied.
Rittenband, JTR
SCHEDULE A
Telephone 203 333-1177
Telecopier 203 384-9832
Law Offices
Weinstein, Weiner, Ignal, Napolitano Shapiro, P.C.
350 Fairfield Avenue
P.O. Box 9177
Bridgeport, Connecticut 06601
August 24, 1998
PERSONAL CONFIDENTIAL — ATTORNEY MATERIAL
Bennie Gene Gray, Jr. Inmate #259596
WRSMU Corr. CTR
1151 East Street
South Suffield, CT 06078
Re: State v. Gray
Dear Mr. Gray:
This will confirm the results of our several conferences concerning the decision you have made on how to proceed with your case.
As you are aware, you are presently charged with the crime of murder/felony murder. Conviction would carry a mandatory minimum sentence of 25 years to serve. I informed you that the State would consider accepting a plea of manslaughter in the second degree which would carry a maximum penalty of 20 years and a minimum penalty of 5 years because of the use of a gun. The State agreed that it would not make any recommendation or request for any particular sentence. Judge Miano would take the plea and would be imposing the sentence. While there is no guarantee as to what the sentence would be within the legal range, he has indicated that the time you are now serving could run concurrently with the mandatory minimum of 5 years and you would get credit for the pretrial detention against the 5 years. If the plea bargain was accepted, you could be out in 3 years.
After the last pretrial conference with the judge, I drafted and sent you a proposed statement to be made in support of a plea to manslaughter and in mitigation of your sentence that you had fired in self defense.
During a telephone conversation held on Friday, August 21, 1998, you confirmed receipt of the draft statement and also informed me that you wished to go to trial and that you wished to testify. I informed you that your record would be made known to the jury if you testify and that you have a right to refuse to testify. You acknowledged that you were aware of those facts and that you wished to go to trial and testify in your own behalf.
You, of course, have every right to a full trial and to have a jury decide whether you are guilty or not guilty of the crime charged. It is my obligation to inform you of the risks in pursuing that course of action and the benefits of the plea bargain I have negotiated. The decision as to whether or not to accept or reject the plea bargain is entirely yours. Based on the instructions you gave me on August 21, 1998, I am going to inform the court that the trial should proceed as scheduled. If this letter accurately, fully and fairly expresses the understanding you have of the status of the case and your intentions, please sign in the place indicated. If it does not please advise in what way it does not.
Very truly yours,
Burton M. Weinstein
CONTENTS OF THE ABOVE NOTED AND AGREED TO:
BENNIE GRAY
AUGUST 25, 1998
SCHEDULE B DRAFT OF PROPOSED SELF DEFENSE STATEMENT CT Page 11294
1. DeJohn Strong was well known to most of the people in the area who ever had anything to do with him as a major drug dealer who was capable of being very violent and who usually would arm himself or had armed backup.
2. I have lived in the New London area all of my life. I have a large extended family and many friends. DeJohn Strong has been in the area most of his life, if not all of it. There are a great many people who would do what DeJohn Strong asks them to do, up to and including killing people.
3. I learned that DeJohn Strong had a friend of mine beaten because he thought my friend and I were involved in some narcotics deal that he wanted to prevent. My friend, who was beaten, naturally looked to his friends, including myself, for protection from DeJohn Strong and his gang. I was afraid that if we could not make a truce, a lot of people, including bystanders who had nothing to do with the dispute, could be hurt or even killed.
4. In an effort to avoid what I feared would be a long and dangerous confrontation, I sent word to DeJohn Strong that I would like to meet him to discuss ways to avoid the confrontation. We agreed to meet on the evening of November 19, 1997.
5. I asked my cousin, Tavorus Fluker, to drive me to Michael Road in New London, Connecticut. Tavorus Fluker did not know that my meeting with DeJohn Strong had been planned or set up. I was very concerned for my own safety and that of Tavorus Fluker when we went to the meeting place on Michael Road, and I brought a gun with me for self protection if it should prove to be necessary. I did not tell Tavorus Fluker about the weapon and it was my hope that if trouble started, I could avoid anyone being hurt by displaying it or, if necessary, firing it harmlessly.
6. I knew that DeJohn Strong would have people around to protect him but I assumed if I was there alone with just Tavorus Fluker driving with me, I might be able to persuade him that it would do no good for him or anyone to force a confrontation between those who would feel threatened by him and those who worked with him.
7. As I approached DeJohn Strong and before I had a chance to say anything, he reached inside of his jacket and pulled out a black object which I saw as a gun. I learned later he was found with a cell phone in his hand but I swear it looked exactly like a gun to me. When he pulled the object out, I was sure it was a gun and that he was going to use it to kill me. I fired in self defense and heard several shots being fired. I saw some movement out of the corner of my eye but can't be sure of exactly how many people were moving or exactly how many shots were fired. I ran back to the vehicle that Tavorus Fluker and I arrived in and we left as quickly as possible.
8. I realized that I should not have carried a gun when I confronted DeJohn Strong but I felt it would have been extremely dangerous not to try to avoid further trouble or to go unarmed. I deeply regret what has happened.
SCHEDULE C
9/10/98
To Attorney Deborah Tedford,
This will confirm my telephone advice to your office that I wish to have Atty. Burton Weinstein represent the estate of my mother, Evelyn Gray in its action against those responsible for her death.
Dewana Gray Mormon