Opinion
No. CV 06 4000972
April 29, 2008
Memorandum of Decision
The petitioner was tried and convicted of first degree robbery, second degree unlawful restraint, and sixth degree larceny. The court, Thim, J., imposed a net effective sentence of eleven years in prison. The Appellate Court affirmed; State v. Lopez, 93 Conn.App. 257, 889 A.2d 254 (2006); and the Supreme Court affirmed the Appellate Court. State v. Kennedy, 281 Conn. 801, 917 A.2d 947 (2007). The petitioner then filed this habeas corpus petition alleging ineffective assistance of his trial counsel, attorney Ronald Bellenot, Sr. The court denies the relief sought in the petition.
The Appellate Court caption of the case bears the surname of the codefendant in the joint trial, Albert Lopez.
I
The opinion of the Appellate Court sets forth the following facts and procedural history. "At approximately 10 p.m. on December 9, 2003, the victim, Cecile Lawrence, a University of Bridgeport security officer, was walking to her place of employment via Park Avenue. The weather was cold, and the victim wore a winter coat over her uniform. As she crossed Atlantic Street, she heard someone approaching from behind. She turned and saw two men, whom she subsequently identified as Kennedy and Lopez. Kennedy ordered the victim to give him her money or he would "do [her]." The victim described Kennedy as being very upset. He repeatedly threatened her by stating, "[G]ive me your money or I'll do you right here." The victim told Kennedy that she had no money, but he persisted, stating that he knew that she had money. The victim was afraid that she would be shot. She perceived an odor of alcohol on Kennedy and Lopez and believed that both men had been drinking.
"The victim was wearing a backpack. Kennedy pulled on the backpack forcing the shoulder straps to draw the victim's arms behind her. This permitted Lopez to unzip the victim's coat, rummage through her outer and inner coat pockets and the pocket of her shirt. Lopez removed the victim's keys, reading glasses and identification. Kennedy continued to threaten the victim by stating that he would "do [her]" then if she did not give them her money. Lopez informed him, however, that the victim did not have any money and told Kennedy not to "do her." Kennedy and Lopez took the victim's backpack with its contents and told the victim to walk away and not to look back. As the victim walked away, Kennedy again threatened her, stating, "Do not turn around or I'll do you."
"The victim walked to the campus security office, which was about one and one-half blocks away. She met her supervisor, Jermaine Alston, who was operating a campus security vehicle, and informed him that she had been mugged. Alston told the victim to get into the vehicle, and they drove around the area looking for the perpetrators of the robbery. The victim described the perpetrators as a black man and a Hispanic man. Alston and the victim saw two men going through a backpack on Atlantic Street. The victim recognized them as the men who had robbed her. Alston stopped the vehicle and got out. Kennedy ran away. Lopez began to walk away, refusing to answer Alston's question about where he had gotten the backpack. Alston scuffled with Lopez and subdued him until the police arrived and took Lopez into custody. Kennedy was apprehended by the police a few blocks from the scene.
"Most of the victim's belongings were recovered, except her cellular telephone, which was valued at approximately $200. After Kennedy and Lopez were taken into custody, the victim identified them as the men who had robbed her. She also identified them in court. Alston identified Lopez in court, as well, but he could not identify Kennedy.
"Both defendants were charged with robbery in the first degree, unlawful restraint in the second degree and larceny in the sixth degree. Their cases were consolidated for trial on June 16, 2004. The jury returned verdicts of guilty on October 6, 2004. Each of the defendants received a total effective sentence of eleven years in the custody of the commissioner of correction and three years of probation." State v. Lopez, supra, 93 Conn.App. 260-61.
II
The petitioner briefs two ineffective assistance of counsel claims. The first is that trial counsel failed to retain and call an eye-witness identification expert.
The petitioner flied a well-written and well-researched brief. The respondent failed to file any brief, which has hindered review by the court.
A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).
Even though the sole issue at trial in this case was the validity of the victim's identification of the petitioner, it was nonetheless reasonable for Bellenot not to retain an expert witness for testimony on the reliability of eyewitness identification. At the time of trial, the most recent Connecticut appellate authority on point was State v. Kemp, 199 Conn. 473, 475-79, 507 A.2d 1387 (1986). Kemp held that a trial judge did not abuse his discretion in excluding this type of expert testimony because, in general, "the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question." Id., 477. Even today, there is no appellate case law in Connecticut authorizing the admission of such testimony.
Although Bellenot could have retained an expert for consultation only, there was, as stated below, no proof of prejudice from the mere failure to retain an expert for consultation.
Under these circumstances, the claim that the trial judge had an obligation to admit such testimony was, if not completely contrary to the law in this state, at best a novel claim. "[N]umerous state and federal courts have concluded that counsel's failure to advance novel legal theories or arguments constitute performance . . . Nor is counsel required to `change then-existing law' to provide effective representation . . . Counsel instead performs effectively when he elects `to maneuver within the existing law, declining to present untested . . . legal theories.'" (Citations omitted.) Ledbetter v. Commissioner of Correction, supra, 275 Conn. 461-62.
Further, although the petitioner now suggests that an expert might have explained to the jury that the certainty of an identification does not necessarily correlate with its accuracy, this theory was not free from doubt or risk. An expert's testimony in support of this theory could have been subject to rigorous cross-examination by the state on the basis of contrary studies or findings in the literature; see State v. Ledbetter, 275 Conn. 534, 568-69, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082 (2006); all of which would have emphasized the certainty with which the victim in this case identified the petitioner. Trial counsel instead acted reasonably in relying on his cross-examination of the victim, the trial court's instructions to the jury on identification — which began with the statement that "[y]ou should carefully evaluate such testimony" (Exhibit 1, 10/5/03 transcript, at 81-82) — and closing argument. Thus, the petitioner has not overcome the presumption that counsel's approach to the issue fell within the range of "reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, supra, 89 Conn.App. 376. The petitioner therefore has not proven deficient performance.
The petitioner also cannot prove prejudice, which is proof that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458. Although Solomon Fulero, a professor of psychology at Sinclair College in Ohio, testified impressively at the habeas trial about common misconceptions concerning eyewitness identifications, there is no evidence that the petitioner would have produced Fulero for consultation or testimony at the trial in 2003. Further, the notions that mere consultation with an expert would have affected the verdict, or that the trial judge would have allowed testimony from Fulero or any other similar expert, that the jury would have credited it, and that, with reasonable probability, the outcome of the trial would have been different, are all matters of speculation. Thus, the petitioner has failed to prove prejudice. The court therefore rejects the first claim of ineffective assistance of counsel.
III
The identification procedure in this case consisted of a one-person show-up in which the victim identified the petitioner as one of the robbers while he sat in the back of a police car under arrest on the night of the robbery. At the criminal trial, Bellenot did not move to suppress this identification. In his second claim, the petitioner argues that Bellenot was ineffective for failing to do so.
The petitioner claims that suppression of the out-of-court identification would have led to suppression of the in-court identification. In view of the disposition of the case, the court need not reach this claim.
It is not necessary to decide whether Bellenot rendered deficient performance in this regard, because the petitioner cannot prove prejudice. See Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 73 n. 1 (2008). In order for the petitioner to prove prejudice, the petitioner would have to show a reasonable probability that a motion to suppress would have been successful. Even if the court were to assume that the one-person show-up procedure was unnecessarily suggestive, the petitioner would have to prove a reasonable probability that a court would find that it was not reliable based on an examination of the totality of the circumstances. See State v. Ledbetter, supra, 275 Conn. 547-48, 553. That the petitioner cannot do.
"[R]eliability is the linchpin in determining the admissibility of identification testimony . . . To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [victim] to view the criminal at the time of the crime, the [victim's] degree of attention, the accuracy of [the victim's] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification]." (Citation omitted; internal quotation marks omitted.) Id., 553.
The first factor — the opportunity to view the criminal at the time of the crime — weighs heavily in favor of the state. While the victim had only a few seconds to see the assailants at the time of the robbery, the victim nonetheless turned around and got "a good look" at their faces as they stood directly behind her. (Exhibit 1, 10/4/04 transcript at 21, 29-30.) As stated above, the victim then had a second opportunity to view the assailants. Approximately an hour later, while riding in her supervisor's vehicle, the victim observed two men from the back walking on Atlantic Street and going through her backpack. She recognized them as the men who robbed her. (Exhibit 1, 10/4/04 transcript at 22-24, 38-40).
At the criminal trial, the parties did not elicit the precise times when the various events in this case took place. It is nonetheless possible to reconstruct events and make fair approximations. The robbery took place shortly after 10:00 p.m. At approximately 10:30, a Bridgeport police officer received a report of the robbery. After proceeding to the University of Bridgeport, the officer shortly thereafter received radio reports that other law enforcement personnel had apprehended the co-defendant and then the petitioner. (Exhibit 1, 10/4/04 transcript at 94-100.) The victim's second opportunity to view the petitioner occurred before the apprehension of either suspect. (Exhibit 1, 10/4/04 transcript at 64-73.)
With respect to the degree of attention paid to the petitioner during the robbery, there is very little information. Although the victim thought that the petitioner might have had a gun (Exhibit 1, 10/4/04 transcript at 22-24, 38-40), there is no evidence, contrary to the petitioner's suggestion, that the victim was distracted from observing her assailants at the time of the robbery or of the subsequent sighting of them on Atlantic Street.
The third factor is the accuracy of the victim's description. The victim described one of the assailants as a black male, approximately six foot tall, and of slim build. (Exhibit 1, 10/4/04 transcript at 38, 62, 77-78.) There is no dispute that at least these general characteristics match those of the petitioner. There is some discrepancy, however, as to whether the victim described the petitioner as wearing dark clothing or, instead, a tan jacket. (Exhibit 1, 10/4/04 transcript at 30, 62, 95, 129.) In fact, the petitioner was wearing a medium brown jacket and a white T-shirt at the time. (Exhibit 1, 10/4/04 transcript at 129-30, 139.)
The next factor is the level of certainty demonstrated at the identification. Contrary to the petitioner's suggestion, our Supreme Court has not held this factor in serious doubt. While the Court has recognized that a significant body of scientific literature shows a weak correlation between level of certainty and the accuracy of an identification, the Court has declined to abandon level of certainty as a factor under the state constitution in assessing reliability. State v. Ledbetter, supra, 275 Conn. 566-69.
In this case, the victim's identification of the petitioner was positive and instantaneous. Corroborating this identification was the fact that Jermaine Alston, the victim's supervisor, also readily identified the petitioner as the person whom the victim had spotted on Atlantic Street with her backpack. (Exhibit 1, 10/4/04 transcript at 74, 103-04.)
The final factor is the time between the crime and the identification. While the transcript of the trial does not reveal the exact time, the identification appears to have taken place approximately one to one and a half hours after the crime. See note 3 supra. Indisputably, in this case the identification took place on the night of the crime rather than several days later.
An officer testified that the identification took place within the one-half hour that he remained at the scene after the petitioner's arrest. (Exhibit 1, 10/4/04 transcript at 129-33.)
Viewing these factors in their totality, the victim's identification of the petitioner as one of the persons who robbed her in December 2003 was reliable. The victim had two separate opportunities to see the perpetrator, provided a generally accurate description of the petitioner, and then identified the petitioner without hesitation shortly after the crime occurred. Her identification was corroborated to some extent by Alston's own identification of the petitioner. While the petitioner has presented arguments as to why the identification was not completely free from doubt, any remaining doubts were properly a matter of the weight for the jury to assign the evidence rather than a matter of its admissibility. See State v. St. John, 282 Conn. 260, 279-81, 919 A.2d 452 (2007) (trial judge did not abuse discretion in finding reliable and admitting a show-up identification in which witness was about 100 feet from robber initially, then had second view from about sixty to seventy feet, and provided generally accurate description with one inconsistency). Accordingly, the petitioner has not proven prejudice from any failure of his trial counsel to file a motion to suppress.
IV
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.
CT Page 6918