Opinion
No. CV 99 425536 S
June 29, 2006
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
In his habeas corpus petition, the petitioner alleges ineffective assistance of trial counsel. These itemized acts of misfeasance are 15 in number, with one specification containing 4 sub-headings.
All of this is claimed to have resulted in the petitioner's conviction on 6 counts which included robbery (2nd degree), kidnapping (1st degree), and sexual assault (1st degree). After the jury convictions on January 12, 1998, he received a total effective sentence of 36 years suspended after 28.
His direct appeal was affirmed in State v. Mitchell, 59 Conn.App. 523, cert. denied, 256 Conn. 901 (2001).
STANDARD OF REVIEW
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.
Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims:
The right of a defendant to effective assistance 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, 559 A.2d 206 (1989).
Williams v. Bronson, 21 Conn.App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge. Strickland, supra. The petitioner's claims must be evaluated in light of these standards.
DISCUSSION
I. Effectiveness of Counsel
A.
The petitioner's allegations that trial counsel "failed to conduct an adequate investigation" is directed primarily at the defense's failure to locate a person who was in the victim's shop just prior to her being sexually assaulted and robbed. Actually, an investigator was hired by trial counsel to try to locate this potential witness who had signed the victim's "Visitor's Book" as "Jeff" with a phone number. At the habeas trial, this investigator had no recall of "Jeff."
However, counsel for the petitioner hired an investigator who located "Jeff" in New York City. That person was irate at being contacted and refused to talk about the episode. When Assistant State's Attorney John Waddock contacted the person known as Jeff, he was told he had no recollection of being in the store nor of people in the store. He added that even as to 1996, he had no knowledge or relevant information. In her trial testimony, the victim stated, that the defendant (petitioner) and "Jeff" were not in close contact before Jeff left the shop.
Thus, there was no exculpatory witness who could have influenced the trial.
The general allegation that trial counsel failed to undertake any investigation for exculpatory witnesses remains just an allegation as the court heard no evidence that such persons even existed. Trial counsel's investigator did take statements from two persons who were potential alibi witnesses and who may have supported the petitioner's alibi witness, Heather Smith. An examination of those statements of Monique Cottrell and Ancy Dumont (Exhibit 11) supports trial counsel's decision not to call them. The contents are inconclusive as alibi material and invite cross examination weakening the defense.
B.
The petitioner argues that his trial counsel failed to adequately cross examine the State's witnesses. The only area of promise with respect to the victim's testimony involved her description of the perpetrator. This was done effectively and any further cross examination of this sympathetic victim could not have helped the defense and more likely would have antagonized the jury. It must be remembered that, as defense counsel said in his testimony, "this was all about I.D." The defense was that the victim was making an honest mistake, not that she was lying, seeking revenge or had a motive to lie.
Counsel prevailed in his suppression attempts regarding prior acts, making a vigorous argument. In his attempt to attack the identification process, he strenuously cross examined the detectives because the petitioner had told him they called out his name as he left the probation office. Counsel was attempting to show a suggestive process was concocted to insure the petitioner would be identified as the culprit.
At one point in the trial, the petitioner relied on his girlfriend, Heather Smith, to establish he was not at the crime scene on February 6. The state produced witnesses who put this testimony in doubt. Trial counsel conducted a thorough cross examination in an effort to show that the witnesses' recitation as to the dates in question was erroneous. In this proceeding, the petitioner alleges counsel failed to call a witness who could have impeached the State's witness. This witness was not identified, nor was the evidence to be so adduced revealed. The claim must be rejected.
C.
The petitioner raises two issues relating to the victim's identification of him. Trial counsel is faulted for failing to call an expert to testify that cross-racial identifications are not reliable and for failing to request a jury charge to that effect.
There is no entitlement to such a special instruction in Connecticut and the trial judge gave a charge on identity. Nor was there anything about the victim to suggest she was uncertain of her identification. In fact, her statement that she was 99% sure but waited to see the suspect in the flesh before she said she was positive strongly support the conclusion that she was correct and not diverted in any way.
The identification by the victim was re-enforced by her including in her description the fact that the perpetrator wore a thin gold ring and had a cut on his nose.
The ring was taken from him and several witnesses described a cut of some kind on his nose. These factors were not neutralized by the petitioner's denial the ring was his and explanation for the injury to his nose.
In view of this evidence, there was no basis for the cross-racial charge the petitioner suggests and such a request would be subject solely to the discretion of the court.
The court is hard pressed to conclude that had such a charge been requested, the request granted, and the charge given, the jury would have acquitted the petitioner. This conclusion is supported by the Appellate Court's decision, a pertinent portion of which is sent out below in Section D.
D.
The petitioner has also alleged that trial counsel was deficient in his handling of the Secondino charge which arose from the testimony of the petitioner's alibi witness. The court finds this claim without merit. Not only did counsel object to the jury being charged, but the Appellate Court addressed this issue on appeal.
In a concluding finding before affirming the conviction the court said:
We conclude that the identification evidence offered by the state in this case was so strong that it is reasonable to presume that the jury would have found the defendant guilty even if the court had not given the Secondino instruction. Because the defendant has not established "that the jury's evaluation . . . would have been different had the court not given the Secondino instruction"; id., 743; we find that the defendant did not establish that the Secondino instruction constituted harmful error.
State v. Mitchell, 59 Conn.App. 523, 528 (2000).
Trial counsel can hardly be blamed for this result. He also argued against the charge in a post-trial Motion for Acquittal and Motion for New Trial.
E.
In her account of the crime, the victim described the perpetrator's actions in taking a scarf from a display and proceeding to use it to wipe around the store areas with which he had had contact. He then ran from the premises.
In closing argument, the prosecuting attorney made reference to this action as an attempt to eliminate fingerprints "certainly not the actions of someone who has decided to commit these offenses spur of the moment, nor the actions, I submit to you, of one who is a novice at committing those types of offenses."
The petitioner alleges these statements were inflammatory and/or improper, calling for an objection to preserve the issue for appeal.
The court does not agree. The prosecutor was accurately describing what the perpetrator did. Such action certainly suggests one who has done this before or knows how he may be apprehended. The petitioner had actually committed similar offenses on another occasion and had taken the precaution of wiping down the store areas he had touched. Trial counsel had succeeded in keeping out of the case this prior "bad act." That did not protect him from comment and description of what he did here.
This claim is rejected.
F.
The petitioner's allegation of ineffectiveness due to his failure to file for sentence review must be rejected. The petitioner testified that after sentencing, he discussed sentence review (as well as an appeal) with trial counsel. He recalled the sentence review papers but never said he asked for sentence review nor that he requested that counsel file for review. As the sentence review papers are handed to the sentenced defendant, and indicate he must sign them, the court does not understand what is claimed here. The petitioner's statement that he never saw the papers is not credible — particularly for someone who obviously was involved in every aspect of his case, as evidenced by his having had three prior lawyers replaced because they had conflicts with him. His involvement and credibility will be more fully discussed below in connection with the claims that he was unaware of any plea bargain, his exposure on the charges, and the risks of trial.
G.
In evaluating the petitioner's allegations against trial counsel for not seeking to exclude testimony related to his criminal record, one must take into account the problems facing defense counsel.
As he stated to this court, this case was all about identity. He was confronted with a strong witness in the person of the victim. The petitioner was apparently the source of information regarding her identifying him after an alleged police-staged show-up. The petitioner's version included the statement that someone shouted his name as he left the probation office, thus alerting and influencing the victim.
A key witness in providing an alibi defense was Heather Smith, the petitioner's then girlfriend. Her version of the events occurring at or around the time of the crime would be crucial.
Also included in this allegation is the police testimony about the use of a police photo of the petitioner from a prior arrest and the testimony of two probation officers indicating he was on probation.
On this last point, the petitioner concedes this was "not necessarily impermissible," but a cautionary instruction should have been requested and given. Of course, if the request were granted, the issue would have been highlighted for the jury. The petitioner's probationary status was going to be revealed anyhow because of his claim of the staged "showup" and evidence as to his physical appearance (i.e., the cut on his nose and the ring he denied was his).
On these issues, the victim denied that anyone called out the petitioner's name and the police officer involved denied that it took place.
As for the probation officers, they both testified as to factors in the identification's validity. Their testimony supported the victim's identification, both as to the scratch on his nose and his wearing a gold ring.
At no time did anyone indicate what the petitioner's prior record was or why he was on probation. It is also significant that the petitioner told one of the probation officers that his wife (girlfriend?) was expecting twins. Remarkably, the victim related that prior to the commencement of the robbery and assault and while chatting informally, the perpetrator told of his wife expecting twins.
The petitioner's reliance on State v. Dunbar, 51 Conn.App. 313 (1998), is misplaced. Nothing in the testimony of these witnesses revealed inadmissible evidence of prior criminal acts. Finally, defense counsel asked for and was given a limited jury instruction on this issue.
Turning to Heather Smith, the petitioner had to make her testimony plausible. She could hardly testify that one day out of the blue and while the petitioner was on the street they commenced a relationship in which they were inseparable for several days, including the date of the crime.
The State would have determined when the petitioner was incarcerated and her ability to recall dates would have to be hinged to some event or place. (This is a recurring problem with alibi witnesses.)
Nothing in her testimony indicated why the petitioner was incarcerated.
This counsel was confronted with a "Mission Impossible" and made the most of his weak defense.
The court does not find that these specified actions constitute ineffective assistance of counsel. In the aggregate, they could not have affected the trial outcome.
H.
The remaining issues raised by this petitioner deal with his claims that he was never told of an offer tendered by the State, didn't realize and wasn't told of the risks of trial, and in effect, he was totally in the dark, confused and troubled over what to do.
Having read the trial transcript and heard and seen Mr. Mitchell testify in this case, the court concludes that he is just not credible.
The best support for this conclusion is found in his trial testimony. After being apprehended by the police in an upper-story apartment landing where he had secreted himself, the petitioner denied that he was hiding or seeking to avoid capture. Rather, he said he was responding to a report of a person with a gun and he was seeking that person.
Confronted with a gold ring seized from his person, he denied it was his. The victim and the two probation officers had seen such a ring on his finger.
The petitioner had discharged three prior counsel. With one, an altercation occurred. Another was deemed unsuitable because she had once been a prosecutor. He was on probation from a 14-year sentence, suspended after 7 1/2 years. He had previously been convicted by plea of an offense which was virtually a carbon copy of the present one. He had served time for a violation of probation arising from the 14-year sentence. He said that before trial, he had copies of the police report, warrant and the victim's statement. He expressed concerns to his counsel about a white victim while he was black and he questioned the racial makeup of the jury.
Contradicting his protestations that no one told him anything, he admitted on cross examination in this case that he had expected to get heavy time, maybe 20 years or more. This conclusion was reached after talking to his attorney! He also admitted that he discussed with trial counsel how he wished to proceed at trial and that he provided the names of the alibi witnesses to counsel. He also said the alibi defense was counsel's idea. Nevertheless, counsel's investigative report was given to him.
While claiming that no one had ever discussed a 15-year offer, the petitioner never indicated he would have accepted such a deal. In fact, he admitted on cross examination that he wanted a trial with each of his first three lawyers!
As noted above, he admitted he could get 20 years or more and based this opinion on his own knowledge of sentences he saw others getting and "after conversing with my attorney."
The finishing touch to the petitioner's claim of uncertainty, etc., is found in the proceeding of October 28, 1997 when he is addressed by Judge Damiani about a grievance he had filed against trial counsel. After both counsel and the petitioner expressed the view that they had ironed out their differences, counsel stated: ". . . My client wants to go forward. We do have an active investigation going on." TR. 10/28/97 at page 4. The petitioner said nothing further.
The petitioner's trial counsel testified at length and contradicted the former's version of events, particularly on the issues of the plea bargain offer and the election to go to trial.
Counsel claimed he advised the petitioner that this was a difficult case but that the petitioner was insisting on a trial. Counsel's opinion was a valid one — there was a strong identification by the victim, when arrested the petitioner displayed consciousness of guilt, and his alibi was weak. The attack on the identification process had been reserved till trial, and after a lengthy hearing during which counsel was most persistent and thorough, the suppression motion was denied. Counsel had managed to get the court to keep the petitioner outside the courtroom while the victim testified.
Counsel's recollection was that the offer of 15 years to serve had been conveyed and rejected and he had advised the petitioner that ". . . if he gets nailed, he's going to be doing a lot more time than the 15-20 years." In short, counsel was positive that his client was aware of the offer, had knowingly rejected it, and was insisting on a trial. This was the impression held by the prosecuting attorney.
Of devastating effect on the petitioner's claims of being unaware of the plea bargain offer, etc., is his testimony on cross examination in this case. He stated that he never told trial counsel he wanted to consider a plea bargain, yet on direct examination, he said trial counsel convinced him not to plea bargain. While professing to be ignorant of the elements of the alleged crimes and his exposure, he was on probation for a very similar offensive in which he had plea bargained.
Finally, when asked "Did he (trial counsel) ever discuss an offer?" The petitioner responded "And if I wasn't willing to take it he was of the opinion that it would be an indication to the State of guilt if he came down with a number and I wasn't willing to take it." The "it" is obviously referring to an offer by the State and though this response is confusing, to say the least, it certainly suggests counsel and the petitioner had a discussion of the subject of a plea bargain.
CONCLUSION
This petitioner has failed to sustain his burden as to either prong of the Strickland test. He received a spirited, effective and aggressive defense under extremely difficult conditions. These conditions were not helped by his own testimony.
The court commends habeas counsel for raising what appear to be every conceivable issue that could possibly aid the petitioner's cause. However, like trial counsel's chore, it was a virtually impossible one.
The petition is denied.