Summary
In Harris, this court concluded that where an individual has been sentenced to concurrent sentences on different dockets on different days, the days of pretrial confinement that overlap may be counted on each docket without violating the provisions of CGS § 18-98d.
Summary of this case from Nicholson v. WardenOpinion
No. CV97-0002609
June 24, 2003
Memorandum of Decision
The petitioner, Silas Harris, alleges in his petition for a Writ of Habeas Corpus, initially filed on December 26, 1997 and amended for the final time on June 9, 2003, that his 1986 conviction in the Judicial District of New Haven under Docket Number CR6-254545 for one count of Robbery in the first degree in violation of CGS § 53a-134 (a) (2), one count of conspiracy to commit robbery in the first degree in violation of CGS § 53a-48 and 53a-134 (a) (2), one count of possession of a sawed-off shotgun in violation of CGS § 53a-211 were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He claims, in Count One, to have been deprived of the effective assistance of his trial defense counsel, and, in Count Two, his Appellate Counsel. He further claims in Count Three that the habeas counsel who represented him in connection with his habeas petition challenging these convictions was ineffective. In 1991, the petitioner was convicted after a trial to the jury in a later criminal matter in the Judicial District of Tolland under Docket Number CR19-42330 of one count of assault in the 2nd degree in violation of CGS § 53a-60 (a) (5), one count of rioting in a correctional institution in violation of CGS § 53a-179b, and one count of possession of a dangerous weapon in a correctional institution in violation of CGS § 53a-174a. In addition, he was adjudged to be a persistent serious felony offender. In his Fourth Count, the petitioner alleges that he was deprived of the effective assistance of appellate connsel in the appeal of the 1991 case.
Attorney John Donovan.
Attorney Joette Katz, now an Associate Justice of the Connecticut Supreme Court.
Attorney John Watson.
Harris v. Commissioner of Corrections, 1991 Ct. Sup. 5412 (Scheinblum, J.) June 21, 1991.
Attorney Daniel Fabricant.
This matter came on for trial before this Court on May 20, 2003 and again on June 9, 2003 at which time testimony was received from: the petitioner; his trial defense counsel in the New Haven case, Attorney John Donovan; his habeas counsel, Attorney John Watson; and the petitioner's mother, Ms Evelyn Harris. The transcript of the petitioner's New Haven trial (five volumes in all), the appellant and appellee's briefs, the appellate court record and the decision of the Connecticut Appellate CT Page 7547-gd Court, State v. Harris, 11 Conn. App. 397 (1987), were admitted into evidence and considered by the Court. In connection with the appeal of the JD of Tolland conviction, the court admitted the appellant and appellee's briefs, the appellate court record and the decision of the Connecticut Supreme Court, State v. Harris, 227 Conn. 751 (1993), into evidence. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied. The Court has reviewed all of the testimony and evidence and makes the following findings of fact (further facts will be related as necessary to resolve specific claims).
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of New Haven, under Docket Number CR6-254545 entitled State v. Harris. The petitioner was charged with one count of Robbery in the first degree in violation of CGS § 53a-134 (a) (2), one count of conspiracy to commit robbery in the first degree in violation of CGS § 53a-48 and 53a-134 (a) (2), one count of possession of a sawed-off shotgun in violation of CGS § 53a-211.
2. Attorney John Donovan was appointed as a special public defender to represent the petitioner.
Petitioner's original counsel was Attorney Thomas Corradino who, during the very early stages of the case, was appointed a Judge of the Superior Court There are no challenges raised to Judge Corradino's representation of the petitioner.
3. The underlying facts of this case show that [t]he victim worked for a grocery store. Two men entered the store, one of them carrying a shotgun or a rifle. He ordered the victim to give him money from the victim's person and the cash register. The second man had a handgun which he pointed at the victim's face. A witness who lived a short distance from the store saw a car parked in front of his house at the exact time of the robbery. The car had distinctive markings, and he specifically described it to the police shortly after the crime. The witness observed a driver inside the car and saw two men run from the grocery store, and jump into the car which had its motor running. The robbery was immediately reported and as a result of the witness's description of the car, the police were able to follow the car. When a police officer first observed the car, there were thee persons in it. Another officer saw two men exit the car before it was stopped by a third officer. At the time of the stop, only the driver, who was also subsequently arrested, remained in the car. The driver testified that the [petitioner] was one of the two men who had entered the grocery store and that the [petitioner] had carried a gym bag into the store, and returned to the car with it. This witness also testified that the [petitioner] had said on the way to the store and prior to the crime that if anything happened, the [petitioner] was "prepared to spray someone." The contents of the car found in it CT Page 7547-ge after it was stopped included a gym bag containing a sawed-off shotgun. The shotgun was operable.
State v. Harris, 11 Conn. App. 397 at 399-400 (1987).
4. After a trial to the jury, the petitioner was convicted of all counts and on August 1, 1986, the Court, Hadden J., sentenced the petitioner to a total effective sentence of twenty-five years of incarceration.
5. This conviction was subsequently affirmed on appeal.
6. Thereafter, the petitioner filed a habeas petition that was dismissed by the Court, Scheinblum, J., on June 21, 1991.
7. Also in 1991, the petitioner was convicted after a trial to the jury in a criminal matter in the judicial District of Tolland under Docket Number CR19-42330 of one count of assault in the 2nd degree in violation of CGS § 53a-60 (a) (5), one count of rioting in a correctional institution in violation of CGS § 53a-179b, and one count of possession of a dangerous weapon in a correctional institution in violation of CGS § 53a-174a. He was adjudged to be a persistent serious felony offender.
8. The underlying facts of the 1991 case reveal that [o]n April 19, 1990, at approximately 8:30 p.m., a fight broke out in the east mess hall of the Connecticut Correctional Institution at Somers, involving seventy-five to one hundred inmates who had gathered to share a meal in honor of the Islamic religious feast, Ramadan. Thirty-five correction officers responded in an attempt to restore order. During the incident, the [petitioner] injured correction officer Craig Jacobsen with a sharp instrument. Correction officer Barry Grant, who had checked inmates entering the hall against the list of those authorized to attend, testified that he had seen the [petitioner] in the mess hall on the night in question. Correction officer David Serkosky testified that, upon entering the mess hall in response to Grant's call for help, he had noticed the [petitioner] holding a light colored object resembling a toothbrush handle, an object he said inmates often used to fashion weapons. Serkosky, however, failed to mention the toothbrush handle when he gave a written statement a few hours after the incident. He attributed this failure to the fact that when he had made his statement at approximately 1:45 a.m., after returning from having had his wound sutured at the hospital emergency room, he had been distracted and in pain and had wanted to go home. Jacobsen testified that he had been standing back from the crowd of inmates trying to restore order when he had been CT Page 7547-gf attacked by the [petitioner]. Jacobsen stated that he saw a white object come from behind him along the right side of his neck and he had realized he had been cut. He suffered a six-inch laceration. After he had been cut, he turned his head and saw the [petitioner], approximately three feet away, running away from him towards the crowd of inmates, holding what appeared to be a white toothbrush with a razor blade embedded in the handle. Jacobsen stated that he had seen about one half of the [petitioner's] face as he had run off. According to Jacobsen, the entire incident took about six seconds. Jacobsen had worked at the prison for only about seven months at the time of the incident. Prior to his employment at the prison, he had worked elsewhere as a security guard for eighteen months. Jacobsen testified that at the time the [petitioner] cut him, the [petitioner] had been wearing a tan shirt and pants and that he had known the [petitioner] from working in D cellblock where the [petitioner] was housed. Jacobsen had, in fact, had a brief encounter with the [petitioner] earlier that same day. Jacobsen also testified that after returning from the emergency room, he had told Detective Thomas Davoren that his assailant was "Harris" in D-90. Davoren, the officer in charge of the investigation, also testified that Jacobsen had identified the cell as D-90, even though Jacobsen's written statement merely stated that his assailant was "Harris" in D block. Jacobsen also identified his assailant as the taller and older Harris brother. In fact, the [petitioner's] brother, who also lived in D block, is older than the [petitioner]. Consistent with Jacobsen's description, however, the [petitioner] is four inches taller than his older brother. Jacobsen testified, moreover, that he had always thought that the [petitioner] was the older of the two Harris brothers. Furthermore, Jacobsen picked the [petitioner's] photograph out of an array that also contained a picture of the [petitioner's] brother. Davoren testified that he had decided to apply for a warrant for the [petitioner's] arrest solely on the basis of Jacobsen's identification of the [petitioner]. At approximately 12:30 a.m. on April 20, an order was issued by Deputy Warden Christopher Dion to transfer the [petitioner] from D block to F block. Prior to the order, Dion had not told anyone about the pending transfer. The [petitioner's] cell was searched and no weapons of any type were found.
State v. Harris, 227 Conn. 751 at 754-56 (1993).
9. At sentencing on July 18, 1991, the Court, Klaczak, J. imposed a total effective sentence of thirty-five years to run consecutive to the New Haven sentence. The petitioner has remained in the continuous custody of the respondent thereafter.
10. This 1991 conviction was also subsequently affirmed on appeal. CT Page 7547-gg
11. Additional facts shall be discussed as necessary.
Discussion
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition, having already been convicted, is not. "It is undoubtedly true that '[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).
Count I: Deprivation of Effective Assistance of Trial Defense Counsel in the JD of New Haven Case
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's trial defense counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition
Trial in this Court of a habeas petition is not an opportunity for a CT Page 7547-gh new counsel to attempt to re-litigate a case in a different manner. In this regard, the Court notes that counsel for the petitioner has cited several specific matters he styles as trial defense counsel deficiencies. One must bear in mind that "[t]he right of a defendant to effective assistance [of counsel] is not however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (1989). He must also show `that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.' Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 59 A.2d 206 (1989)." Williams v. Bronson, 21 Conn. App. 260, 263 (1990).
The petitioner alleges that his trial defense counsel failed to adequately prepare and present mitigating evidence at sentencing, did not raise a challenge to the arrest warrant pursuant to Franks v. Delaware, did not request a competency heating, did not prepare or investigate the case and did not cross examine witnesses with regard to motive, bias and inconsistent statements.
It is, therefore, incumbent upon a habeas court, knowing the outcome of the trial "[to] not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but . . . evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000). This Court will, therefore, examine the totality of the trial defense counsel's representation to determine if his performance, overall, fell below the range of competence expected of attorneys with ordinary training and skill in criminal law. Strickland, supra at 687.
Moreover, it is not even necessary to consider whether a trial counsel's performance was deficient if the habeas Court is satisfied that there was no prejudice to the defendant by the actions or inactions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. CT Page 7547-gi Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
In the instant case, the petitioner raises multiple complaints about his trial defense counsel that essentially fall into three broad categories. First, that he did not conduct an adequate pretrial investigation both into the merits and for sentencing. Second, that he failed to properly pursue a suppression of the arrest warrant under Franks v. Delaware, 438 U.S. 154 (1978). Finally, that he failed to conduct proper cross-examination.
This Court does, however, find that Attorney Donovan did conduct an adequate and appropriate investigation in getting ready for trial and sentencing. There are, of course, always some things that could have been undertaken, done differently, or not at all. However, it is not appropriate to view each action, or inaction, of a trial defense counsel and put it under microscopic scrutiny. "Some attorneys make a practice of `building a record' by making motions which are doomed to fail, or seeking disclosure which has already been made. Such a practice serves no useful purpose, is not to be encouraged and abstaining from doing so certainly does not indicate ineffective assistance of counsel." State v. Barber, 173 Conn. 153 at 158 (1977). "Judicial scrutiny of counsel's performance must be highly deferential, and a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Chace v. Bronson, 19 Conn. App. 674 at 678 (1989). A review of the trial transcript shows that Attorney Donovan did conduct vigorous cross-examination and made a good argument to the jury. He did identify and emphasize the shortcomings in the government's case. Although it is fair to say that different counsel may well have tried the case differently, it is clear that Attorney Donovan did provide the petitioner with an effective, and therefore, constitutionally acceptable, representation at the trial on the merits.
The petitioner had amassed a significantly problematic record when he came to trial in the 1986 New Haven robbery. Between the years 1981 and 1985, he had been previously convicted of three counts of Robbery in the first degree, one count of larceny in the 2nd degree, assault in the 3rd degree, Breach of peace and criminal trespass. In addition, the petitioner had a lengthy juvenile record that includes, inter alia, weapons charges, assaultive behavior and escape from custody. All of this made for significant difficulties at sentencing. The petitioner now criticizes his trial defense counsel for not putting his family members CT Page 7547-gj on the stand during sentencing and delving into his learning and emotional problems. However, Attorney Donovan made a wise tactical decision to forgo this route, specifically commenting at the habeas trial that he believed testimony by family members would not be helpful. The following long, and unfortunately prescient, extract from the petitioner's juvenile records that were introduced into the habeas trial as an exhibit is most illustrative of why this tactical decision was correct.
Specifically, a report of a psychiatric consult by Lawrence Sereda, M.D. on September 21, 1979 performed when the petitioner was about 13 years of age.
His psychological status at the moment is of a very young child emotionally who feels little responsibility for his actions, feels no remorse about what he has done, and demonstrates little effective superego functioning to prevent him from getting into further trouble. He constantly blames others for his crimes. He is quite impulsive and pleasure oriented and there seems to be little to stop him trying to get what he wants. There are quite serious defects in his character formation which make it easy for him to be influenced. This boy shows alarming tendencies towards antisocial character formation. Tentative diagnosis is unsocialized aggressive reaction of adolescence. This is preferred to the more grave diagnosis of sociopathy of which he is showing signs. He is a boy of limited intelligence and judgment, impaired value system who is impulsive and hedonistic in orientation. There is no evidence of psychosis, thought disorder or schizophrenia. There is no evidence of psychiatric disorder or disturbance requiring mental hospitalization. He will require long term structured residential placement.
The petitioner offered this Court the testimony of his mother as the type of testimony that he feels Attorney Donovan should have presented to the sentencing judge. Mrs. Harris's testimony, while undoubtedly sincere in reflecting a mother's love for her son, would have done nothing to mitigate the sentence that Judge Hadden was justified in meting out in 1986. Consequently, there is no deficiency in the way in which Attorney Donovan approached sentencing either.
The petitioner seeks to challenge the effectiveness of the trial defense counsel for failing to raise the complaint that the arrest warrant was defective and should have been suppressed. As authority, the petitioner relies upon the United States Supreme Court case of Franks v. Delaware, 438 U.S. 154 (1978). This tack must fail for several reasons. CT Page 7547-gk First, it is unclear what the petitioner means by "suppress the warrant." Franks is a case that dealt with evidence that was seized pursuant to a search warrant issued by a neutral and detached magistrate. However, in Franks, the applicant for the warrant had knowingly used false and misleading information. Consequently, the Court found that such action vitiated the warrant process and merited suppression of the evidence. Here, there is no evidence that was seized pursuant to a search warrant so there was no evidence to be suppressed. Moreover, to the extent that there has been any proof that there were false statements in the arrest warrants application, those false statements are attributed to someone other than the affiant. Unlike the situation in Franks where the person seeking the search warrant sought to deceive the neutral and detached magistrate, there is not a single bit of evidence to show that the police officer that sought the arrest warrant was trying to deceive the judge who signed the warrant Consequently, even had Attorney Donovan filed a motion to suppress the arrest warrant under Franks, it would, undoubtedly have been denied. There is, therefore, no prejudice to the petitioner for the failure to do so.
Given all of the above, the petitioner has failed to meet his burden under the Strickland standard of showing ineffective assistance of trial defense counsel and Count I of the petition must be denied.
Count II: Ineffective Assistance of Appellate Counsel in the JD of New Haven Case
The petitioner has raised an allegation of ineffective assistance of appellate counsel in the case that was pending in the Judicial District of New Haven. However, the only evidence introduced on this issue is the appellate briefs, the appellate record and the decision of the Appellate Court. The petitioner complains that his appellate defense counsel did not raise all of the issues on appeal that she could have done. Even if true, this is a tactical decision that is clearly within the province of the appellate defense counsel.
The standards for effectiveness of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984), apply with equal force to appellate counsel. In order to prevail in the instant habeas petition, then, the petitioner must prove first that he was denied the effective assistance of appellate counsel in that not only could his appellate counsel have raised the issues alleges in his petition on direct appeal, she should have done so. This will necessarily require a showing that his appellate counsel's performance "was so deficient that it fell below the standard of reasonably effective assistance; and, . . . that these errors deprived the defendant of a fair appeal and caused an unreliable conviction to CT Page 7547-gl stand." Valeriano v. Bronson, 209 Conn. 75, at 82 (1988). Then, the petitioner must prove that if the issues had been raised on direct appeal, there was a reasonable likelihood that he would have prevailed upon those issues on direct appeal. As previously discussed that he cannot do.
This Court finds that, as a result of failing to introduce any evidence on the alleged inadequacy of the appellate representation, the petitioner has effectively abandoned the claim contained within Count II, and even if he had not, that he would not have prevailed.
Count III: Ineffective Assistance of Habeas Counsel
The petitioner claims to have been deprived of the effective assistance of habeas counsel in the 1991 habeas petition he filed attacking the New Haven case. A detailed examination of this Count is not needed. First, the petitioner has alleged that his habeas counsel was ineffective by not raising the issues that allege the ineffectiveness of his New Haven trial defense counsel. Since these allegations are raised in Count I of the instant petition and found to be without merit, to the extent that Attorney Watson's performance was deficient by not doing so has not resulted in any prejudice to the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988). Consequently, the petitioner has failed to meet his burden in regard to the allegations of ineffective assistance of habeas counsel contained within Count III.
Count IV: Ineffective Assistance of Appellate Counsel in the JD of Tolland Case
The petitioner has raised an allegation of ineffective assistance of appellate counsel. However, the only evidence introduced on this issue is the appellate briefs, the appellate record and the decision of the Appellate Court. This Court finds that, as a result, the petitioner has effectively abandoned the claim contained within Count IV.
Accordingly, the Petition fox a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge CT Page 7547-gm