Opinion
No. CV-05-4000840
February 23, 2010
DECISION
THE COURT: I have reviewed the entirety of the exhibits and listened to the arguments of counsel and am prepared to rule. With respect to this claim, this is a petition for a writ of habeas corpus. As such, the writ is known as the extraordinary writ, which if the claim has merit, the Court has the ability to put the petitioner in a position he was prior to his finding of guilty and restore certain rights and perhaps a new jury trial.
With regard to this claim, this is very different than a criminal case, such as the case of the State of Connecticut v. Javier Santana, in which the State of Connecticut has the burden of proof. The petitioner here sits in a different position as he did as a defendant in the matter of State v. Santana, which was a prosecution in the judicial district of Fairfield at Bridgeport, CR-01-174986. As a defendant — as I began to say a moment ago, it is the government's responsibility to prove the defendant guilty beyond a reasonable doubt.
Here in this civil habeas proceeding, it is the petitioner's responsibility to prove his claim in that he should prevail and not the Warden's burden to disprove anything. And as such, the case law is clear under the seminal case of Strickland v. Washington, which is a United States Supreme Court decision.
In order to prevail on a claim of ineffective assistance of counsel, the petitioner must establish deficient performance of the attorney as well as prejudice. And as our Connecticut Supreme Court has stated in numerous cases, if the Court concludes that there is an absence of either prong, either deficient performance or prejudice, then the claim fails and counsel is directed, of course, to among other cases Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, a 2005 decision of our Connecticut Supreme Court.
With regard to this claim, the Court heard testimony from Mr. Javier Santana, as well as testimony from his former attorney, Mr. Lawrence Hopkins, who was employed as a special public defender to represent Mr. Santana in 2002, eventuating into a trial by jury at Bridgeport in 2003. In addition, the Court heard testimony from a Mr. Haase, Charles W., who was formally employed by the New York City Police Department in the ballistics section as well as doing crime scene investigation, photography, and ballistics firearm testing and training. And lastly, the Court heard testimony from Dr. Frank Stoll, a forensic psychologist with an office in West Hartford, Connecticut.
With regard to this claim, the Court makes the following findings:
Mr. Santana was indeed charged with felony murder and numerous counts of robbery, along with unlawful restraint as a result of events allegedly occurring on or about November 30, 2001.
Subsequent to his arrest, he was appointed Mr. Hopkins to represent Mr. Santana. Following his presentment, Mr. Santana entered a plea of not guilty, elected a trial by jury, and indeed proceeded to a trial by jury before the Honorable Judge Howard T. Owens in March 2003. That jury found Mr. Santana guilty of a number of offenses, including felony murder, robbery in the first degree, unlawful restraint in the first degree, and larceny in the third degree. The judge, Judge Owens, sentenced the petitioner to a total effective sentence of seventy years to serve.
With regard to this case, Mr. Santana appealed his decision of guilt or the guilty finding by the jury unsuccessfully to the Appellate Court in a reported decision State v. Santana, 89 Conn.App 553, (2005), and upon belief cert was denied in this decision.
In large part, the Appellate Court in a panel of judges, Dranginis, Bishop, and McLachlan, and that's Dranginis, Bishop and McLachlan omitted reciting the facts and referenced the appeal in the matter of the co-accused, Mr. Gary Cooke in State v. Cooke, reported at 89 Conn.App. 530, 2005.
With regard to this case, the jury could reasonably have found the following facts:
On November 20, 2001, the individual Mr. Cook along with Mr. Santana, Abimeal Quinones entered a garage party at 86 Alice Street in Bridgeport wearing masks and armed with guns, ordered the guests to lie face down on the ground, and instructed them to remove their belongings. The individuals began taking money, jewelry, and other items from the guests and placing them in a bag. The individuals threatened that if anyone moved or looked up they would be killed. After approximately twenty minutes two officers from the Bridgeport Police Department, Gilbert Delvalle and Leonard Alterio, arrived at the garage, announced their presence, and opened the door to the garage.
As the officers opened the door, gunshots were fired from inside the garage. Both Alterio and Devalle returned fire into the garage and backed away. During the exchange, Delvalle shot Quinones, who fell to the ground and later died. The victim, who was a guest at the party, was also shot and killed; and inferentially, these facts are summarized at page 534 of the Appellate Court decision and the victim referenced herein this Court understands to be Juan Moreno, a.k.a. Juan Castille.
Approximately twenty minutes after the gunfire began, Cooke and Mr. Santana surrendered. Mr. Santana was the first out of the garage carrying an AK-47 type weapon. Cook followed shortly thereafter.
Upon entering the garage, the police found approximately thirty-five people lying down and a red nylon bag containing cash, jewelry, and wallets. The bodies of the victim, Castille and Quinones were also discovered.
Ballistics evidence showed that the AK-47 weapon Mr. Santana carried was the only weapon fired by the individuals and that the bullet that killed the victim was from the AK-47.
Mr. Cooke and Mr. Santana proceeded in a joint jury trial in which both individuals were found guilty of numerous offenses.
With regard to the claim, the claim is set forth in the amended petition brought by Mr. Santana's attorney, Mr. McIntyre. That petition, the most recent version is dated December 22, 2008. It is clear from the petition that Mr. Santana has framed an ineffective assistance of counsel claim. As such, we are guided by the cases of Strickland, Ledbetter, and the other cases which have arisen following those cases. Specifically, in paragraph twenty-four the petitioner claims that his trial attorney, Mr. Hopkins, fell below the standard of reasonable acceptance for attorneys employed in the criminal law in a number of ways. And before the Court gets to the specifics of those, the Court heard testimony from Mr. Hopkins, who at the time of his appointment had substantial experience representing individuals accused of crimes. This Court notes that Mr. Hopkins received his undergraduate degree from the Fairfield University. He later obtained his law degree from the University of Bridgeport. He is employed as a public defender in Bridgeport, New Haven, and eventually supervised the Office of the Public Defender in Hartford. Since approximately 1993 or '92 he was employed in the private practice of law with a substantial area of that practice focused in the criminal law representing individuals accused of serious felonies, misdemeanors, and by his calculations he has tried some two hundred cases. I realize that's an approximation, but clearly as of the time he represented Mr. Santana he had substantial experience, both as a public defender and as a private attorney, and here, as has been stated, he was employed as a special public defender.
This Court does make the following findings:
That Mr. Hopkins in representing Mr. Santana obtained all of the relevant information from the State of Connecticut prosecution, in particular, all police reports, witness statements, forensic reports, and all evidence pertaining to the case of State v. Javier Santana.
This Court finds that it was Mr. Hopkins' custom to meet with his clients, and he did so with respect to Mr. Santana, primarily at the courthouse and by his own admission, did not venture to some other off-courthouse location where Mr. Santana may have been housed. And this Court makes a specific finding that it is not important or essential that an attorney, be it a public defender or private attorney go to a place of incarceration outside the courthouse, some local jail or correctional facility. It's not the location of the conferences and the review of the evidence that matters. It's the quality of the discussion that results between client and attorney and attorney and client that is of more import.
And here this Court makes a finding that Mr. Hopkins did review the strength of the allegations with his client, Mr. Santana.
The Court finds that Mr. Santana who testified today was in all likelihood at the time in 2002 and '03 a fairly intelligent young man. To this Court, although loud on occasion, Mr. Santana appeared to understand where he was, the consequences of his incarceration, the nature of his claims being advanced here and recalled with some specificity the events and circumstances of his prior representation by Mr. Hopkins and the trial that ensued.
The Court notes that Mr. Santana, by his own admission, was employed in the private world as an armored car individual, security person, worked for the State Department in Stamford, Connecticut, had a licensed weapon, and also managed a business of some sort in Bridgeport and thus, had beyond pedestrian acumen in the affairs of life.
And with regard to discussions between he and Mr. Hopkins, this Court finds that Mr. Hopkins, indeed, reviewed the strength of the State's case, including all of the facts, which the Court has summarized. And this Court makes the finding that it was Mr. Santana's decision to proceed to trial. Based upon the evidence presented, it is not at all clear that there was any particular plea offer, per se, advanced by the prosecution who was represented at trial by Mr. John Smriga, to plead guilty in exchange for a sentence or a term certain.
Based on the testimony presented by both Mr. Hopkins and Mr. Santana, this Court finds that Mr. Santana was not amenable to accepting any plea offered to guilty including felony murder, which involved substantial incarceration.
This Court makes a further finding that Mr. Santana wanted any plea to be conditioned according to dictates he wished to design, but it is clear from listening to the testimony, that the State of Connecticut was not interested in that. This event did involve the deaths of two individuals. This event was obviously planned and orchestrated after some thought involving the use of a myriad of different types of weaponry, including a shotgun, AK-47 assault rifle, handguns, Stealth was employed with the use of black clothing and masks, as well as overpowering the individual psychologically, which is not atypical and that is to have them lay on the floor and not move under threat of being shot or death. So this was a very serious event indeed.
With regard to the discussion and the level of discussion between attorney and client, this Court accredits the testimony of Mr. Santana that the attorney essentially implored the client to plead guilty, that he, Mr. Santana, had less than a one percent chance of prevailing given the substantial evidence levied against Mr. Santana and Mr. Cook. And this Court finds refreshing an attorney who comes into Court and minces few words and is unequivocal about recommending a plea of guilty and to not go to trial. It is the art of lawyering and advocacy which places a substantial burden and obligation on an individual attorney to attempt to marshal all the evidence and persuade his client to make a reasonable decision; that notwithstanding, it was Mr. Santana's decision to go forward in a trial and put the prosecution to its proof.
And in review of the transcripts in the underlying trial, it's clear the prosecution went at lengths in calling to the stand to testify a number of individuals who were present at this party or gambling event, which may have included gambling, and they all pretty much testified to the same set of facts: in seeing the three individuals come in, dressed in black, seeing the weapons, and following the admonitions to get on the floor. None could really describe who shot specifically, other than they did place the weapon presumably in the hands of Mr. Santana and that's the AK-47.
The police officers or two police officers were very clear in testifying that when they approached in the garage and found Mr. Santana he and he alone possessed the AK-47. Given the substantial evidence, it is not surprising that the attorney was unequivocal in his recommendation.
Before getting to the allegations advanced by Mr. Santana, essential to this claim or claims advanced here is that a private attorney need consult a psychological expert, a ballistics expert for a number of reasons.
Firstly, with regard to the psychological expert, this Court rejects any claim that a private attorney must make a psycho-social assessment of every individual prior to explaining to his client whether to take a plea or not take a plea and proceed to trial.
To require a private attorney or a public defender to do that, is asking more than the standard care than this Court's opinion requires. This Court accredits the testimony of Attorney Hopkins, that there was nothing unusual about Mr. Santana's demeanor or intellect to suggest that Mr. Santana was infirm or unable or in any way laboring under any diagnoses, psychologically or psychiatrically, such that there could not be a meaningful exchange of information and understanding by Mr. Santana and the choices he would make in the course of representation.
The Court also acknowledges that Mr. Santana wanted his attorney to enlist a forensics expert, but what Mr. Santana fails to realize is that it's not up to a defendant and it's not up to a defendant in the context of the attorney-client relationship to dictate how a defense proceeds. It is up to the lawyer to advise a defendant what is in the defendant's best interest. Here, at most, an independent firearms examination would have nearly corroborated and confirmed. what the lawyer already appreciated by virtue of review of the ballistics information available, that the decedent, Mr. Castille, sustained fatal wounds by virtue of the entry of a bullet into his chest cavity and died from wounds resulting therefrom. The bullet was identified to be that from an AK-47 rifle. The evidence has already been reviewed about the strength of Mr. Santana possessing the weapon, regardless of the contents of petitioner's exhibits in evidence today regarding the statement by Valentin and the statement by — the two statements by Valentin, which is actually Respondent's B — A, B, and C — A and B from Valentin. Mr. Cooke's statement is C, and these are full exhibits, regardless of whether or not Mr. Santana was actually shown these statements prior to trial. It is clear and this Court so finds that Mr. Hopkins knew of essence of these statements communicated the same to Mr. Santana.
Mr. Santana also had the ability to understand the nature of the ballistics evidence against him, and this Court understands and accepts that even through sentencing Mr. Santana maintained it was a police bullet that killed the decedent and not anything he discharged from any weapon he might have had at any given time.
It is the attorney's role to explain the evidence — and this Court finds that the attorney did that here. It is not the attorney's requirement or it is deficient performance for the attorney to not placate or satisfy a defendant to undergo an independent forensic examination to confirm what the attorney has already concluded was a sufficient examination. Here at trial an individual testified about the ballistics, which I will review at later length in the course of this ruling.
With regard to the psychological aspects, the Court — heard testimony from Dr. Stoll — and frankly, this Court concludes that Dr. Stoll is a psychologist with an office in West Hartford and has been employed as a forensic psychologist, since 1993 with a substantial income as a result of consulting with the Office of the Public Defender; that notwithstanding, this Court finds that Dr. Stoll genuinely believes that Mr. Santana at the time of evaluation in May of 2009 suffered from a number of disorders, including Attention-Deficit Hyperactivity Disorder, deficits in visual perception, Nonverbal Disorder, Adjustment Disorder, Mixed Anxiety and Depression Disorder, Personality Disorder with Avoidant Paranoid and Histrionic aspects, and a disorder stemming from his incarceration.
The Court rejects any opinion testimony by the psychologist that his findings in May of 2009 were necessarily emergent and active in 2002 or '03, such that anyone, not the least of whom was his attorney, would be on notice of any inability for Mr. Santana to not comprehend the nature of discussing the evidence against Mr. Santana or making the decision to go to trial.
In essence, without reaching the merits of the claims of deficient performance, the Court finds a total absence of prejudice or the Court concludes that it was Mr. Santana's decision to proceed to trial and his alone, and frankly, there was nothing Mr. Hopkins said; and this Court will not speculate as to — if Mr. Hopkins had more information Mr. Santana would have been of a different mind.
This Court finds no prejudice in any claim where this court concludes that Mr. Santana made a decision certainly unwise, but not in any way psychologically or pathologically impaired from a psychiatric standpoint to proceed to trial and hold the Government or State to its burden.
As has been stated anecdotally the Department of Corrections is populated, indeed, with many individuals who were found guilty but nonetheless held the prosecution to its burden of proof. To accept Dr. Stoll's conclusion that a psycho-social assessment should be made in just about every instance, would in this Court's view add another layer of bureaucracy and further diminish the role of the attorney.
This Court has commented in published opinions that there's too much emphasis in the employ of experts. Employ of experts do a couple of things:
One, it insults the jury's intelligence, where the subject matter sought to be testified to is indeed within the ambit of understanding of a lay jury; and two, detracts from the role of the attorney where it's the attorney's job as counselor and attorney, in fact, to advise an individual on what is the best recourse.
Dr. Stoll essentially hypothecates that if an evaluation was obtained in '02, '03, there could have been another individual who could have explained to Mr. Santana the wisdom of entering a guilty plea and not proceeding to trial. That is far too speculative and not required in this Court's opinion in order for professional advice to occur between attorney and client.
This Court will not even undertake a financial analysis, which would result if more layers of experts were employed at that stage. Clearly, where the attorney marshals all the evidence, presents the evidence to the individual, the individual has to make a judgment. There was nothing in Mr. Santana's background known to the attorney or should have been known that would have suggested that if there was some other recourse or evaluation, again, Mr. Santana's decision would have been anything different.
The Court specifically has accredited Attorney Hopkins' testimony, and Mr. Santana was not the least bit interested in pleading guilty to any offense.
With regard to the allegations here, it is alleged in paragraph twenty-four that trial counsel failed to conduct sufficient investigation. That is twenty-four (a).
Under the case of Holly v. Commissioner, 62 Conn.App. 170, 175, 2001, it is incumbent of the petitioner to show what additional investigation would have revealed — if the claim is that there should have been ballistics investigation, there's no showing that that investigation here based on the testimony or evidence presented would have in any way changed the outcome.
In addition, even if there were a forensic psychologist evaluation, the likes of which Dr. Stoll conducted, there's no indication necessarily that would have altered the outcome.
And the Court cannot speculate as to any other investigation which may have obtained, and for that reason twenty-four (a) fails. Twenty-five (b) alleges that trial counsel failed to conduct sufficient investigation into the projectile lodged in the body of the deceased.
This Court finds no prejudice in that regard for reasons already stated. The Court specifically does not find this claim proven, but finds further that no amount of investigation necessarily would have altered Mr. Santana's decision to proceed to trial.
The Court does note in review of Petitioner's 1 and Petitioner's 14, that Petitioner's 1 is an x-ray of the decedent Juan Moreno Castille. It is a wet film radiograph and to the lay eye with some medical background, as I look at the film, one can see a foreign object in the upper left quadrant. The Court accredits the testimony of Mr. Haase that foreign object appears to be a bullet projectile. He could not tell the caliber. I certainly can't. But what I can tell is that the Petitioner's 1 is identical to Petitioner's 14. Petitioner's 14 is a reduced photographic image on eight-and-a-half by eleven paper of the same substance, and that is the chest cavity of Juan Moreno. There is no difference other than a little more clarity in the smaller photographic reproduction, but that exhibit doesn't help us too much because Mr. Santana himself said that particular document was clearer than the photograph he viewed. But it's pretty clear to the lay person that the two images are of the same thing.
Mr. Santana states upon review of the x-ray he can see that the Petitioner's 1 is a photograph of what he claims is a bullet from an AK-47; notwithstanding Mr. Santana's self-processed knowledge of firearms and the like, the Court cannot possibly accredit Mr. Santana's conclusions about what is in view in Petitioner's 1 or 2, but does note that the testimony by Mr. Santana was admitted because it was relevant on, perhaps, what Mr. Santana was considering at the time he was playing the odds in success or failure in proceeding to trial.
This Court makes a finding that Mr. Santana did have a personality characteristic which Dr. Stoll testified about and that was what Dr. Stoll described as a hard-headedness, but I'll describe as a view that he was not going to plead guilty; and frankly, I cannot hypothecate a scenario where Mr. Santana would be shown certain evidence, whether it's ballistic or psychological that would alter the decision he made at the time.
He decided to go to trial. He was convicted on fifty-six counts, including felony murder and robbery, and then was sentenced to a very substantial sentence.
This Court also makes a tacit finding that Mr. Santana had the intellectual ability as evidenced by his testimony today to understand the concept of felony murder; and that is, even if he did not fire the fatal bullet, if individuals in this case appeared at a location and commit a felony and someone is killed in the course thereof that liability could attach under the felony murder statute which could impose substantial incarceration.
This Court makes a finding that Mr. Santana genuinely understood that aspect and the Court in all candor notes there were a number of internal inconsistencies expressed by Mr. Santana today in his testimony, and specifically I'm talking about the first claim that he didn't understand aspects of felony murder and then when I asked him why would he pled if he appreciated the bullet from the AK-47, he gave a very good explanation of what felony murder is and that he indeed understood. And I think that the petitioner minimized with purpose his claimed admission that he was holding a 9 millimeter when a number of witnesses put the AK-47 in his hands on the date of this event.
This Court, therefore, rejects twenty-four (b) Twenty-four (c) alleges that trial counsel failed to meaningfully advise the petitioner of evidence against him. That claim is unproven. For reasons already stated, it's not up to the attorney to then enlist psychologists and a number of other individuals. To answer the question posed at petitioner's counsel at closing, why not do it.
Well, there comes a time when you can make a number of requests and frankly, you might detract from — in any aspect of potential plea offer, it's like pursuing a motion to suppress. There's not supposed to be any downside penalty, but we all know if you hold the State to its burden in a motion to suppress hearing and then lose it, the offer might indeed go up. It certainly won't go down. And there's a consequence to every action or inaction and again, for reasons already said, I don't like to see forensic psychologists and the like overused, and in this instance there was no reason for Mr. Hopkins to think he was in need of one.
And this Court finds that he did meaningfully advise his client, and I don't think the petitioner used the words "begged," but I think he alluded to some metaphor involving him down on his knees or something to that effect. And I can appreciate that.
And what I mean by that is — I'm puzzled when I see lawyers come in and they're not clear at all whether to advise their client to take a plea or not. As a private attorney for twenty-one years, I was not equivocal. In other words, I made it very clear of my recommendation as an attorney. If you don't like my advice, fire me. Why did you hire me? And that's what lawyers should do. They shouldn't say well these are your choices. You decide. And eventually that's the bottom line because it's Mr. Santana's life, not Mr. Hopkins. But I think the attorney is doing the right thing when he says the freight train is coming, it's going to run you over, it's time to step out of the way, take the deal even if it's thirty-five years. And it's unfortunate here that Mr. Santana did not heed the advice of Mr. Hopkins.
With regard to paragraph twenty-four(d), the Court finds no prejudice and no deficiency. The Court, as far as the allegation of the difference between an Alford Plea and a guilty plea, again, the Court has already found that Mr. Santana was steadfast in going to trial and even if Mr. Hopkins had explained an Alford Plea, there's no indication to this Court that would have changed the outcome here. Twenty-four (d) is unproven.
Twenty-four (e) alleges that counsel failed to explain the State's ability to charge multiple crimes for one incident. That claim is unproven. The Court accredits Attorney Hopkins' testimony in that regard.
With regard to (f), the trial counsel failed to meaningfully explain the State's position on plea negotiations, that claim is unproven as has already been stated due to the severity of this crime, even assuming an absence of any history by Mr. Santana. The Court accredits Mr. Hopkins' recollection that the State's Attorney was not likely to offer any particular plea agreement.
This Court, specifically Mr. Santana does not accredit that there was ever an offer of twenty-five years. I cannot imagine the State of Connecticut based on this evidence giving an offer of twenty-five years on this particular offense for the facts involved. I think Mr. Santana may have misrecollected that particular aspect. But for all the reasons indicated the sub-allegation of twenty-four are unproven. There is no violation of his rights under the State Constitution or Federal Constitution or due process. This Court makes a finding that Mr. Hopkins' representation was not deficient.
This Court also finds that Mr. Santana, as is evidenced from Petitioner's 10, was specifically advised of not only his rights to appeal but his rights to sentence review, and the Court accredits Attorney Hopkins' testimony that Mr. Santana never pursued those rights. This Court will not grant any habeas relief under these circumstances, where it's clear on the record that Mr. Santana was advised of his right to sentence review as a practical matter.
The sentence review panel has the ability pursuant to statute to raise a sentence, lower a sentence, or leave it alone, and under the case law with regard to sentence review and the statutes that pertain to it, there's no reason to indicate any review panel would find this sentence to be disproportionate or inappropriate based upon the facts proven at trial.
This Court certainly finds that Mr. Santana is confined in the custody of the Commissioner of Corrections; and thus, this Court has proper jurisdiction over Mr. Santana. For the foregoing reasons, the Court finds an absence of proof to persuade this Court that the petition for writ of habeas corpus should issue. The petition is denied. Judgment may enter in favor of the respondent. I am requesting that the clerk prepare notice of appeal rights for Mr. Santana and the record shall reflect the Court is handing those notices at this time to counsel for Mr. Santana.