Opinion
No. CV 04 0004551
July 17, 2006
MEMORANDUM OF DECISION
The petitioner, Richard Lomax, alleges in his petition for a Writ of Habeas Corpus amended on March 29, 2006, that his 1998 convictions for attempted robbery in the first degree in violation of General Statues §§ 53a-134(a)(2) and 53a-49, attempted larceny in the second degree in violation of §§ 53a-123(a)(3) and 53a-49, carrying a pistol without a permit in violation of § 29-35, and interfering with a peace officer in violation of § 53a-167a were obtained as a result of the ineffective assistance of his trial defense counsel in violation of the Sixth and Fourteenth amendments to the United States Constitution and Article first, § 8, of the Constitution of the state of Connecticut. Specifically, the petitioner claims that trial counsel failed to inform him that he could be charged with lesser included offenses, failed to submit a requested charge for lesser included offenses, and failed to call a witness to testify in his defense.
Pursuant to Practice Book § 23-30(b), the respondent asserts in the return that the petitioner bypassed his opportunity to raise the claim of ineffective assistance of counsel because he failed to raise it first on direct appeal and has therefore procedurally defaulted. "An ineffective assistance of counsel claim [however] is not subject to the usual rule requiring a direct appeal and is properly raised by way of a subsequent habeas corpus petition. State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986)." Taylor v. Commissioner of Correction, 94 Conn.App. 772, 775 n. 3, 895 A.2d 246 (2006).
Trial for this matter was held before this Court on April 18 and May 4 of 2006. Testimony was received from the petitioner, and his trial defense counsel, Attorney Norman Pattis. Transcripts of the petitioner's criminal trial, as well as other documents, were received into evidence. For the reasons set forth more fully below, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
Findings of Fact
Based on a review of the testimony and evidence, this Court makes the following findings of fact:
1. The petitioner was the defendant in a criminal case in the Judicial District of New Haven, under Docket Number CR 960430756, entitled State v. Lomax. The petitioner was charged with robbery in the first degree in violation of General Statues § 53a-134(a)(2), larceny in the second degree in violation of § 53a-123(a)(3), carrying a pistol without a permit in violation of § 29-35, and interfering with a peace officer in violation of § 53a-167a. Attorney Norman Paths represented the petitioner throughout the criminal proceedings.
2. The jury could have reasonably found the following facts to be true regarding the underlying offense: "On Sunday, May 12, 1996, Sidney Collier, a member of the New Haven police department, was working in uniform on an extra duty security assignment at an open field flea market on Ella Grasso Boulevard in New Haven. At approximately 3:25 p.m., a vendor approached Collier and directed him to a disturbance. As Collier neared the scene, he observed the victim, Tywan Grier, on the ground. The victim was on his back with his hands, palms up, beside his head. The [petitioner] was kneeling over him, holding a chrome gun in his right hand, pointed about twelve inches from the victim's face. Collier saw the [petitioner] pat the victim's front pants pockets and attempt to put his hand in those pockets. As Collier drew his service weapon, the [petitioner] got up and ran. Collier pursued the [petitioner] for more than one block before subduing him. The [petitioner] still possessed the handgun, which was capable of being fired and had a live round of ammunition in its chamber. The [petitioner] also had a gold chain with a medallion and two separate bundles of money. The victim, who was still very nervous, arrived at the scene of the arrest. At that time, he identified the gold chain with the medallion as being his property. The victim's identification of his property took place within two to three and one-half minutes after the incident." State v. Lomax, 60 Conn.App. 602, 606, 760 A.2d 957, cert. denied, 255 Conn. 920, 763 A.2d 1042 (2000).
3. The state filed a request to charge the petitioner with the lesser included offenses of attempted robbery in the first degree and attempted larceny in the second degree. This request was granted and the jury was so charged.
4. The jury found the petitioner guilty of attempted robbery in the first degree in violation of General Statues §§ 53a-134(a)(2) and 53a-49, attempted larceny in the second degree in violation of §§ 53a-123(a)(3) and 53a-49, carrying a pistol without a permit in violation of § 29-35, and interfering with a peace officer in violation of § 53a-167a. The petitioner was found not guilty of robbery in the first degree and larceny in the second degree.
5. The petitioner received a total effective sentence of twenty years incarceration. His conviction was affirmed on appeal.
State v. Lomax, 60 Conn.App. 602, 760 A.2d 957, cert. denied, 255 Conn. 920, 763 A.2d 1042 (2000).
6. The petitioner did not testify in his own defense at the criminal trial.
7. Although the petitioner wanted a pretrial agreement that called for three and a half years incarceration in exchange for his guilty plea, he and the state never reached agreement. The lowest offer put forth by the state called for five years of incarceration. The petitioner rejected this offer.
8. Additional facts will be discussed as necessary.
Discussion of Law
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 the legal status of 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 [this] Court as one who is 'innocent,' but on the contrary as one who has been convicted by due process of law." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 422-23, 641 A.2d 1356 (1994).
Deprivation of Effective Assistance of Counsel
In order to prevail on the issue of whether there has been ineffective representation by trial defense counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, CT Page 12975 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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." Id., 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." Id. 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 necessarily result in denial of the petition.
The petitioner asserts that his trial defense counsel, Attorney Pattis, failed to advise him that he could be found guilty of attempted robbery and attempted larceny as lesser included offenses. He claims that this alleged failure prevented him from making informed decisions about his case, including whether to testify in his own defense.
Attorney Pattis confirmed through his testimony at the habeas trial that he did not specifically discuss lesser included offenses with the petitioner before the criminal trial. During the criminal trial, however, both Attorney Pattis and the petitioner became aware of the possibility that attempted robbery and attempted larceny would be included in the judge's charge to the jury. During argument on defense counsel's motion for judgment of acquittal at the close of the state's case, the state asserted that even if the jury was unable to find that a completed robbery or larceny occurred, there was enough evidence for the jury to determine guilt under a lesser included theory of attempt. Criminal Trial Transcript, March 16, 1998, p. 28. Alter the Court denied the petitioner's motion, the state asserted that it was possible a request to charge for the lesser included offenses would be submitted. Criminal Trial Transcript, March 16, 1998, p. 29.
Even if it is assumed that Attorney Pattis' failure to consult with the petitioner about the lesser included offenses constitutes deficient performance, there was no evidence presented at the habeas trial to demonstrate that the petitioner was prejudiced by this. 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 of the trial counsel in representing the petitioner. A reviewing court can find against a petitioner on either part of the Strickland analysis, whichever is easier. Strickland v. Washington, supra, 466 U.S. 697; Valeriano v. Bronson, supra, 209 Conn. 86. To prove prejudice, 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, supra, 466 U.S. 694.
It is important to note that this Court is not making the finding that this was deficient performance.
At the habeas trial, the petitioner asserted that his decision not to testify at the criminal trial was made without knowledge that he could be convicted of the lesser included offenses. He further stated that had he known he would be exposed to a conviction for those offenses, he would have testified that he was not the person involved in the incident and that the arresting officer mistakenly identified him as the perpetrator. This Court is not convinced that the petitioner's testimony would have changed the outcome of the petitioner's criminal trial.
At the criminal trial, police officer Sidney Collier testified that he observed the petitioner holding a gun to the victim's head while attempting to reach into the victim's pants pockets. Officer Collier further testified that the petitioner ran away after seeing him draw his weapon and that he chased after the petitioner before finally apprehending him. The petitioner does not dispute that he fled the scene, was chased by Officer Collier and was apprehended while in possession of a gun. Given those facts, the jury would be left only to determine whether to credit the testimony of the petitioner or Officer Collier regarding the identification of the perpetrator.
In essence, Officer Collier engaged the petitioner in what can best be called "Hot Pursuit." He kept the petitioner in view during the chase and when he apprehended him, he caught him with the instrumentality of the crime as well as the stolen property.
According to the criminal trial transcript, Officer Collier's testimony was unwavering and consistent. To be sure, Attorney Pattis testified at the habeas trial that he could not shake the officer's testimony. Moreover, the petitioner's admission that he fled the scene upon Officer Collier's arrival, in conjunction with evidence that the petitioner provided the police with a false name, address and date of birth upon his arrest, only strengthens a finding that the petitioner was conscious of his guilt. Given the evidence presented and a review of the record, it is doubtful that the petitioner's testimony, particularly after a rigorous cross examination, would have been credited by the jury over the testimony of Officer Collier. There simply is no basis upon which this Court can conclude that the petitioner's conviction is unreliable. The petitioner has therefore failed to prove the second part of the Strickland test for this ineffective assistance of counsel claim.
In his next ineffective assistance of counsel claim, entered at the habeas trial as an amendment to the instant petition, the petitioner asserts that had he known about the lesser included offense charge, he would have accepted the state's offer and pleaded guilty. First, there was no evidence presented indicating that the petitioner was even remotely interested in accepting the state's offer of five years in exchange for his guilty plea. The petitioner failed to demonstrate how his awareness of the lesser included offenses would have enticed him to plead guilty, particularly when it is clear from the testimony of Attorney Pattis, which this Court credits, that the petitioner had no intention of accepting the state's offer. Second, "the concerns that arise when a defendant accepts the state's offer and pleads guilty are not present when the defendant rejects the offer and goes to trial. The focus of [guilty plea] cases is that an accused's right to trial should not be compromised by his failure to be fully informed and to understand the factors to be weighed in deciding to plead guilty, and thus waive the constitutional rights associated with his right to trial. Those concerns, however, are not involved where, as here, the petitioner's decision has not been to forego his right to trial, but rather to exercise that right." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 36 Conn.App. 695, 708-09, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). The petitioner, therefore, cannot now claim that his trial counsel was ineffective when it was he who insisted on pleading not guilty and proceeding to trial.
This Court is profoundly confused with regard to the petitioner's next claim. The petitioner contends that he was denied the effective assistance of trial counsel because Attorney Pattis failed to request a charge on the lesser included offenses of attempted robbery and attempted larceny. The petitioner, however, was convicted of those exact charges. Since the petitioner was acquitted of the most serious charges against him, namely robbery in the first degree and larceny in the second degree, he would now only stand convicted of carrying a pistol without a permit and interfering with a police officer had the charge on the lesser included offenses never been given. Clearly, the petitioner would have been better off without the lesser included offense charge; therefore, Attorney Pattis exercised good judgment in not requesting the charge himself. There is not one speck of evidence in support of a finding of deficient performance. The petitioner has failed to satisfy the first prong of the Strickland test on this ineffective assistance of counsel claim.
Finally, the petitioner claims that he was denied the effective assistance of counsel because Attorney Pattis failed to call Winston Duncan as a witness for the defense in the criminal trial. Attorney Pattis testified at the habeas trial that he interviewed Mr. Duncan, but ultimately concluded that his testimony would not be helpful to the petitioner's case. Such decisions concerning the presentation of testimonial evidence are a matter of trial strategy. Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). To demonstrate deficient performance, the petitioner must overcome the strong presumption that the strategy employed by trial counsel is reasonable and the result of sound professional judgment. Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 815, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d, 413, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). This, he has failed to do.
In view of the foregoing, this Court concludes that the petitioner has failed to establish that trial counsel's performance was deficient under the first part of the Strickland test. Even if counsel's performance was found to be deficient, however, no evidence was presented at the habeas trial to support a finding that the petitioner was prejudiced by such representation. To prove that Mr. Duncan's testimony would have affected the outcome of the petitioner's trial, there must be some showing before the Habeas Court "that the testimony would have been helpful in establishing the asserted defense." Nieves v. Commissioner of Correction, 51 Conn.App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). The most effective way to do this is by bringing the witness in to testify at the habeas trial. That, however, was not done in this case. Without Mr. Duncan's presence, this Court can only speculate as to what he may have testified and whether it would have actually been helpful to the petitioner's case. The petitioner has failed to introduce sufficient evidence to convince this Court that he was prejudiced by any alleged deficiencies in Attorney Pattis' representation. His ineffective assistance of counsel claim, therefore, fails on both parts of the Strickland test.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.