Opinion
No. CV 02-0470479 S
January 25, 2005
MEMORANDUM OF DECISION
The petitioner, by counsel, has tried a one-count third amended petition for a writ of habeas corpus.
The petitioner was the defendant in a criminal case in the New London Judicial District. On November 12, 1998, after a jury trial, he was convicted of possession of heroin with intent to sell in violation of General Statutes Section 21a-278(b), possession of narcotics with intent to sell within fifteen hundred feet of a school in violation of General Statutes Section 21a-278a(b), possession of marijuana with intent to sell in violation of General Statutes Section 21a-277(b), and failure to appear in the first degree in violation of General Statutes Section 53a-172. He was sentenced by the court (Schimelman, J.) on December 8, 1998 to a total effective sentence of twenty years in prison.
The petitioner was represented at trial and on appeal by Attorney Jeremiah Donovan. The convictions were affirmed on direct appeal. State v. Renaldo Respass, 256 Conn. 164, 770 A.2d (2001) cert. denied 534 U.S. 1002 (2001). The petitioner is in the custody of the respondent as a result of his sentence.
This court heard the petition on July 20 and August 10, 2004. The petition arises out of certain events that occurred during the course of deliberations by the jury in the criminal trial. These events were the basis of a motion for new trial filed by Mr. Donovan on the day of sentencing, and which was denied by the court. The denial of the motion for a new trial was one of the claims of error made by the petitioner in his appeal. The Supreme Court accurately summarized the events as follows:
During the course of jury deliberations, all of the jurors were interviewed individually to determine if they had seen the defendant being led from the courthouse in restraints. After her questioning, a certain juror, J.P., presented a note stating that she wanted to speak privately with the court. The court first conducted a bench conference with counsel, and then allowed J.P. to address the court. She stated that she thought that the court should be aware of" something I learned that you should have known before the trial . . ." The court then excused J.P. and, after conducting a second bench conference with counsel, asked her to write down her concerns. After she did so, the court met with counsel in chambers, and, when back in session, the court marked J.P's note as a court exhibit. The note stated that M.S. had said that he knew Sebastian. J.P. testified as follows: "One of the other jurors said, `how do we know there is even, in fact, a Calvin Sebastian' And, then [M.S.] got up and he said, `I know there is a Calvin Sebastian. I know him.' . . . And then someone else said, `Well, why [M.S.] didn't you say that before?' [M.S. said] `I didn't hear his name.'" The court then asked J.P. if the statement would affect her ability to act as an impartial juror: "Knowing that you have to decide this case by the evidence and the law; do you have any sense that based upon that discourse that took place that you cannot decide this case fairly and impartially based on the evidence and the law as you find the evidence and as I told the jury the law to be followed?" J.P. responded:" I take it very seriously; yes I can." The court continued:" All right, so you feel that you could?" J.P. answered: `Yes, I was thinking about it last night, you know, and I woke up. I just wanted to be fair." After J.P. was excused, the court asked counsel: "[D]o either of you want to be heard on that issue at all?" Defense counsel answered, "No, sir."
During the subsequent examination of M.S. and the remaining jurors, the trial court asked whether they had seen the defendant in restraints, but did not ask questions about M.S.' statement that he knew Sebastian. At the conclusion of these interviews, the trial court asked counsel if they wanted to "inquire or be heard further on the issue as to what we've been doing this morning?" Counsel for both sides indicated that they did not wish to conduct further inquiry or argument. Before allowing the jury to resume deliberations, the court reminded the jury that "this case has to be decided on the evidence as you folks find it [and] on the law . . . which I have told you to follow and it's going to be decided fairly and impartially based upon the evidence and the law . . ."
State v. Respass, supra, 189-90
The petition claims that the petitioner's confinement is illegal and in violation of his federal and state constitutional rights in that counsel failed to undertake any inquiry into the impact upon the jury of the statements attributed to juror M.S. regarding his knowledge or acquaintance with Calvin Sebastian, in that counsel failed to undertake any inquiry into why juror M.S. failed to bring his knowledge of or his acquaintance with Sebastian to the attention of the court, and in that counsel failed to move for a mistrial upon learning that juror M.S. had knowledge or acquaintance with Sebastian.
The petitioner is entitled to receive effective assistance of counsel at trial.
The petitioner's right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. "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); Chace v. Bronson, 9 Conn.App. 674, 678, 564 A.2d 303 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263, 573 A.2d 330 (1990). "In order to prevail in a habeas corpus challenge, `the petitioner "must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. Denied, 369 U.S. 808, 82 S.Ct 640, 7 L.Ed.2d 556 (1962)." D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984).' Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989)." Sherbo v. Manson, 21 Conn.App. 172, 180-81, 572 A.2d 378 (1990). "In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal." Magnotti v. Meachum, 22 Conn. App. 669, 674, CT Page 2252 579 A.2d 553 (1990); see Biggs v. Warden, 26 Conn.App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).
"`A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . 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 v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d 864 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989)." Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct 512, 108 L.Ed.2d 514 (1989).
"With regard to the performance component of this inquiry, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Aillon v. Meachum, supra, 211 Conn. 357. "The constitution guarantees only, a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980). `"What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation." Peoples v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981).' Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985)." Giannotti v. Warden, 26 Conn.App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); see also Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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; that is, the defendant must overcome the presumption that under the circumstances, the challenged action `might be considered sound trial strategy.' . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonableprofessional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; see also Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Williams v. Warden, 217 Conn. 419, 586 A.2d 582 (1991).
Robert Jeffery v. Commissioner of Correction, 36 Conn.App. 216, 218-20.
The issue before the court is whether the petitioner has proven that Mr. Donovan failed to render effective assistance of counsel in failing to inquire of juror M.S. about his knowledge or acquaintance with Sebastian and in failing to move for a mistrial.
The petitioner, in addition to the felonies of which he was convicted in this case, was convicted of grand larceny in New York in 1993, an unnamed felony in 1995, and forgery and failure to appear in 1999. He testified, initially, that after Mr. Donovan told him what was in juror J.P.'s note, he told Mr. Donovan a couple of times that he wanted a mistrial. He further testified that after juror J.P., under questions by the court, testified about juror M.S.'s remarks he wanted Mr. Donovan to question juror J.P. but Mr. Donovan told him to wait. The record reflects that after the court had finished questioning all of the jurors about whether any of them had seen the petitioner in restraints, the court inquired whether either counsel "wished to either inquire or be heard further on the issue as to what we we've been doing this morning." Mr. Donovan then requested for some time to confer with his client. The petitioner testified that he and Mr. Donovan then conferred in the courtroom for five to ten minutes, and that he repeated several times that he wanted a mistrial and he wanted Donovan to question juror M.S.
The petitioner testified that the trial was going well and was fair until juror J.P. mentioned what she claimed juror M.S. had said. He also testified that after the court had finished questioning the jurors about whether any of them had seen the petitioner in custody and about what juror J.P. had mentioned, the court then allowed Mr. Donovan to confer with him privately. He testified that during their five- to ten-minute conference Mr. Donovan discussed with him whether he wished to try and have a mistrial declared or not. Mr. Donovan mentioned that the state would definitely re-try the petitioner, that on a re-trial the petitioner's wife might not be available, that the state would then have an opportunity to investigate the claim that the drugs belonged to the petitioner's brother-in-law, and that Mr. Donovan felt that there were a couple of jurors in favor of the petitioner. He further testified, both on direct and cross-examination, that after his discussion with Ms. Donovan, he agreed with the decision that Mr. Donovan should not ask for a mistrial. In response to questions by this court he again said that he agreed with the decision not to ask for a mistrial, but he then said that since he had told Mr. Donovan three or four times to move for a mistrial there was no sense in continuing to ask, and that Judge Schimelman had told him at the start of the trial not to address the court.
Attorney Donovan is a 1970 graduate of Harvard College, attended Emannuel College at Cambridge, England on a two-year fellowship, served in the military for thirty years, and graduated from Yale Law School in 1977. He served as an Assistant United States Attorney in Connecticut from 1978 until 1989 when he went into private practice in Connecticut. During his career as a federal prosecutor he handled criminal prosecutions almost exclusively. At the time of the petitioner's criminal trial Mr. Donovan's practice was about 70% criminal. He had tried in excess of one hundred felony criminal cases and in about one-half of these cases he represented the defendant. He had appeared regularly in all of the state and federal courts, except for the United States Supreme Court. He was a very experienced criminal defense attorney at the time of the trial. He was appointed as a special public defender to represent the petitioner in his criminal trial.
He recalled that it was the petitioner who first mentioned that some of the jurors may have seen him being led out of the courthouse in shackles, and which led to Judge Schimelman questioning the jurors. After the judge had finished questioning all of the jurors he gave Mr. Donovan and the petitioner time to confer, which they did for five to ten minutes concerning what the defense would do at that point. After a full discussion of all the pros and cons of seeking a mistrial, Mr. Donovan asked the petitioner what he wanted to do. The petitioner could not make up his mind, he asked Mr. Donovan to make the decision, and Mr. Donovan then made the tactical decision not to ask any further questions and not to seek a mistrial. He felt that Sebastian was a non-issue in the case, an opinion that was shared in by Judge Schimelman when he denied the motion for a new trial. He testified that he would have done whatever the petitioner asked him to do. He also testified that, based on the petitioner's conduct during the trial, if he had said anything or done anything that the petitioner didn't agree with, the petitioner would have addressed the court with his objections. It was his testimony that once the decision was made that the defense did not want to lose the jury, and did not want a mistrial because the petitioner would then be in a worse position on a new trial than he was at that point with the ongoing trial, there was no reason to have juror M.S. questioned further and thereby risk a mistrial being requested by the state or declared by the court. He further testified that once the decision was made not to seek a mistrial, the petitioner never indicated to him he had changed his mind, and if he had Mr. Donovan would have requested that the court declare a mistrial.
This case does not involve a situation where a trial attorney failed to recognize an issue or failed to take reasonable steps to protect the interests of his client. Mr. Donovan, an exceptionally qualified criminal defense attorney, fully recognized the ramification of the events set forth above. He discussed them fully with his client and made a sound trial strategy decision. As the Appellate Courts have held numerous times, "it is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence." There is a strong presumption that trial counsel's actions are considered to be sound trial strategy, and the petitioner has failed to overcome that presumption. The decision which he now challenges was one to which he agreed. The court finds that Mr. Donovan was a very credible witness and accepts his testimony.
In order to prevail on this petition, the petitioner first must prove that his counsel's performance was deficient and second, he must prove that the alleged deficient performance caused actual prejudice. The court finds that the petitioner has failed to prove that Mr. Donovan was deficient in his representation of the petitioner in any of the ways alleged in his petition or claimed in his brief; or that he has suffered actual prejudice as a result of Mr. Donovan's performance.
The third amended petition for a writ of habeas corpus is dismissed.
William L. Hadden, Jr. Judge Trial Referee