Opinion
No. CV 05 4000707 S
September 28, 2009
MEMORANDUM OF DECISION
The petitioner, Khalid Ibrahim, filed a petition for a writ of habeas corpus on September 29, 2005. He was charged in a criminal case bearing Docket No. CR 94 0093619 with murder in violation of General Statutes § 53a-54a, both as a principal and an accessory under General Statutes § 53a-8, felony murder in violation of General Statutes § 53a-54c, and kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A). After a jury trial, he was convicted of felony murder and kidnapping and sentenced by the court, Koletsky, J., to fifty years and twenty-five years incarceration, respectively, for a total effective sentence of fifty years incarceration. The petitioner appealed his convictions, which were upheld. See State v. Ibrahim, 62 Conn.App. 634, 772 A.2d 680, cert. denied, 256 Conn. 919, 774 A.2d 139 (2001). The petitioner was represented at trial by attorney Michael Graham.
Petitioner's counsel represented at the habeas trial that attorney Graham deceased in 1998.
On September 25, 2006, the petitioner filed the operative amended petition, in which he alleges that his convictions were due to the ineffective assistance of attorney Graham in that he (1) failed to investigate state witness Mindy Pagan and discover an extensive history of drug abuse and felony drug convictions, (2) advised the petitioner not to testify, (3) failed to call an expert to impeach Pagan's testimony that she had not used drugs the day in question, (4) failed to investigate and discover other witnesses who could have testified favorably for the petitioner, and (5) failed to argue in closing that the testimony of the petitioner's codefendant was inconsistent with the forensic evidence. The respondent filed a return on October 5, 2006, denying the material allegations of the petition and raising the special defense of laches.
The defense of laches was not argued at trial or briefed by the respondent, and this court deems it abandoned. See Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007), cert. denied, 289 Conn. 911, 957 A.2d 858 (2008). In any event, this court's conclusion that the petitioner's claims lack merit obviates the need to consider the special defense.
The matter came before the court for a trial on the merits on April 20, 2009. The petitioner was the sole testifying witness, and the criminal trial transcripts the sole exhibits. Both parties filed post-trial memoranda.
FACTS
The criminal trial jury could reasonably have found the following relevant facts. The petitioner was a drug dealer operating out of southern Massachusetts. On November 13, 1991, the petitioner received a page on his beeper displaying a number that signified to him to meet associates at a certain apartment complex in Springfield. When the petitioner arrived, his friend and subsequent co-defendant John Dalton informed him that Dalton had been robbed of money and the drugs the petitioner had arranged for Dalton to sell that night out of a nearby apartment, where drugs were routinely sold and used. Albert Wilkerson, the victim, was with Dalton, who identified Wilkerson as one of the three men who robbed him. The petitioner and Dalton attacked the victim and forced him into the petitioner's car. The victim was apologetic and offered to pay back the amounts stolen, and offered to assist in finding the other two robbers, Larry Sutton and a man known as "Boss." After making stops at several other drug houses in attempts to do so, the petitioner drove south on Interstate 91 for approximately twenty to thirty minutes, then taking exit 42 in Enfield. As the car passed an embankment and construction site, the petitioner slowed down, at which point the victim leaped out of the car and began to flee. Dalton and the petitioner gave chase, and Dalton shot the victim four times in the head. The victim's skeletal remains were discovered some time later by a passing motorist.
The petitioner's testimony at the habeas trial presented a different picture. The petitioner contends that he arrived at the apartment complex in response to the page, but intended to drive down to New York that night to "copp" or purchase drugs in quantity, then return to his mother's home in Massachusetts. He did not know the victim but was put off by the fact that Dalton got into the back seat while the victim got into the front seat, which to him implied that the victim was not to be trusted. He testified that he did not realize Dalton had been robbed until he was some way into the drive down to New York, and was not told that the victim was involved in the robbery so assumed he was a friend of Dalton's. He did not inform the others about his intention to drive down to New York until they had already reached the Enfield area, at which point Dalton had finished relating his story. Dalton then informed the petitioner that he had a "ratchet" or gun, which prompted the petitioner to turn around at exit 42 because it would be imprudent to go "copp" in New York with a gun. When the petitioner slowed down due to a construction site and "bumper to bumper traffic" at approximately two or three o'clock in the morning, the victim jumped out of the car, followed by Dalton, and the petitioner heard several gunshots. He then left with Dalton and returned to his mother's house. The petitioner, however, did not inform attorney Graham of this alternative version of events.
Additional facts will be discussed as necessary.
DISCUSSION
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008).
"The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . .
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).
No evidence whatsoever was presented regarding the claim of failure to call an expert to impeach Pagan, nor was there evidence presented as to any other witnesses who were in Pagan's apartment when Dalton allegedly hauled the victim away at gunpoint. These claims are deemed abandoned. See Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007), cert. denied, 289 Conn. 911, 957 A.2d 858 (2008).
Scant evidence was presented on the claims of failure to investigate and present evidence of Pagan's drug use and felony convictions, as well as the failure to argue in closing that Dalton's testimony was inconsistent with the detective's testimony and physical evidence. Only the transcripts of the criminal trial speak at all to these two claims, and this record reflects the opposite: that attorney Graham both elicited and argued Pagan's felony drug convictions and presented extensive evidence of her history of drug abuse; (exh. 1, pp. 322-44, 358-63); in addition to extensively highlighting her drug abuse as an explanation of the inconsistencies and vagaries of her testimony; (exh. 2, pp. 725-30); and that Graham argued that the physical evidence and testimony of police officers and ballistics expert Edward Jachimowicz suggested that the victim could not have been shot as Dalton testified he was. (Exh. 2, pp. 718-19.) The petitioner has failed to demonstrate that he received ineffective assistance on these grounds.
Indeed, as attorney Graham argued strenuously at the close of trial, the fact that the jury found the petitioner guilty of felony murder but not murder suggests that they credited the physical evidence over the testimony of Dalton with respect to the actual shooter, nevertheless finding the petitioner guilty of felony murder by way of the kidnapping.
The thrust of the petitioner's habeas case was the claim that his attorney neglected to advise him about his right to testify on his own behalf. The petitioner testified at the habeas trial that, had attorney Graham suggested he testify to counter the damning testimony from Dalton, his codefendant, the petitioner would have testified to the different version of the events in which the petitioner had no knowledge of a robbery until much later in the evening, that he only got off the I-91 exit to turn around because he could not go to "copp" in New York with Dalton carrying a gun, and that Dalton was solely responsible for the shooting of the victim. The success of this claim depends on a conclusion that he was prejudiced, which would require a finding that Ibrabim's self-serving testimony would be believed by the jury over the testimony of his codefendant, partially corroborated by Mindy Pagan. The court need not even probe this deeply into the matter, however, because the petitioner has failed to demonstrate that his attorney performed deficiently. See Small v. Commissioner of Correction, supra, 286 Conn. 713 ("[i]t is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier"). By the petitioner's own repeated admission at the habeas trial, he did not relate his side of the story to his attorney, never indicated that he wanted to testify and, in response to an inquiry by the court, Koletsky, J. as to whether he understood that he had a right to testify and whether it was his decision not to testify, the petitioner answered in the affirmative. This court can conceive of no basis for a finding of deficient performance where there was no indication the attorney had notice of the defendant's intent to testify and no reason to believe that the testimony would be at all helpful or present a different version of the facts to the jury. While his attorney was unavailable to weigh in on the matter, this court is confident that, given a record that demonstrates ardent and able representation by attorney Graham, if the petitioner had evinced a desire to testify attorney Graham would have discussed the pros and cons of testifying with him.
See n. 1, supra.
CONCLUSION
Having failed to demonstrate that he received ineffective assistance of counsel, the petitioner's petition is denied. Should the petitioner wish to appeal, counsel shall submit a judgment file to the court within thirty days.