Opinion
No. CV03-0473103S
June 6, 2007
MEMORANDUM OF DECISION
The petitioner was convicted of accessory to murder in violation of Conn. Gen. Stat. §§ 53a-54a(a) and 53-8, and conspiracy to commit murder in violation of Conn. Gen. Stat. §§ 53a-54a(a) and 53a-48(a). His conviction was affirmed on appeal.
The petitioner's trial counsel was Attorney Thomas Conroy and he was represented on appeal by Assistant Public Defender Pamela Nagy.
The petitioner brought a previous habeas corpus proceeding in which he raised the issue of ineffective assistance of trial counsel. That previous petition was dismissed by Judge Thomas Corrigan in May of 2000 which dismissal was affirmed on appeal. The petitioner's habeas counsel in that proceeding was Attorney David Rozwaski.
The petitioner now brings this habeas corpus proceeding in two counts alleging that his previous habeas attorney was ineffective in failing to pursue certain claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel in the prior habeas proceeding. The petitioner further claims that had prior habeas counsel not been ineffective, the habeas proceeding before Judge Corrigan would likely have been successful and his conviction vacated, and he probably would have been acquitted at a new trial.
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); Chace 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, 195 Conn. 640 (1985); Chace 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.
With respect to the first count of the petition, the petitioner makes the following claim:
The petitioner's appellate counsel's performance was deficient because she failed to adequately pursue the claim that the trial prosecutor committed prosecutorial misconduct, and she failed to present the question of whether the trial prosecutor committed prosecutorial misconduct in the petition for certification to appeal from the Appellate Court to the Supreme Court. The petitioner was prejudiced by his appellate counsel's deficient performance because it deprived the petitioner of a fair appeal and it caused unreliable convictions to stand.
The petitioner's first habeas counsel's performance was deficient because he failed to raise this claim in relation to the petitioner's appellate counsel's performance. There is a reasonable probability that, but for the petitioner's first habeas counsel's deficient performance, the petitioner's convictions would have been vacated as a result of his first petition for a writ of habeas corpus, and that the petitioner would have been acquitted of all charges at any subsequent criminal trial.
The petitioner's appellate counsel raised one claim of prosecutorial misconduct on direct appeal which was rejected by the Appellate Court. Appellate counsel did not raise this issue of prosecutorial misconduct in her petition for certification to the Supreme Court. After a review of the Appellate Court opinion and § 84-2 of the Practice Book, it is the court's opinion that it was not ineffective assistance of appellate counsel to not raise the issue of prosecutorial misconduct in the petition for certification. Therefore it was not ineffective assistance of habeas counsel in failing to raise the issue at the first habeas trial.
The petitioner also claims that there were ten instances in the prosecutor's closing arguments which constituted prosecutorial misconduct which were not raised by appellate counsel.
The petitioner claims that the prosecutor commented on a fact not in evidence when he stated that Dolphin "would only give the name of Joe the Flea as that fourth person" on the day that he implicated the petitioner's co-defendants. While this was a misstatement of the evidence, there is no indication that it was intentional and the evidence was undisputed that Dolphin did not implicate the petitioner until October 31, 1995. The trial court instructed the jury that it was their recollection of the evidence that controlled, not that of the attorneys.
The petitioner raised eight other areas where he claims that the prosecutor committed prosecutorial misconduct by expressing his personal opinions regarding the truthfulness of Dolphin, the guilt and truthfulness of the petitioner, and the truthfulness of the petitioner's alibi witness.
The petitioner cites one comment made by the prosecutor as to which he claims chat he appealed to the emotions of the jury.
The petitioner must prove that it was ineffective assistance of appellate counsel in failing to include these ten arguments of the prosecutor in her direct appeal. He must also prove that it was ineffective assistance of his first habeas counsel in failing to claim ineffective assistance of appellate counsel in his first habeas.
In the court's view it is problematical that these ten instances of alleged prosecutorial misconduct would have been successful in the Appellate Court. Indeed Attorney Rozwaski testified that he reviewed the transcript of closing arguments and found no instances of prosecutorial misconduct other than that raised by appellate counsel in the direct appeal.
Raising every colorable issue on appeal runs the risk of burying strong arguments with weak ones. Valeriano v. Bronson, 209 Conn. 75, 89 (1988). Appellate counsel need not raise every non-frivolous issue requested by a client. Id.
It is the opinion of the court that the petitioner has not proven that appellate counsel's performance fell below the standard of reasonably competent counsel. It naturally follows therefore, that habeas counsel was not ineffective in failing to raise the issue of ineffective assistance of appellate counsel in the first habeas.
With respect to the second count of the petition, the petitioner makes the following claim:
The petitioner's trial counsel's performance was deficient because he failed to adequately discredit the excuse that the state's primary witness, Jeffrey Dolphin, gave for repeatedly failing to identify the petitioner as the fourth person involved in the shooting of the victim prior to the petitioners' criminal trial. If the petitioner's trial counsel had not been deficient, there is a reasonable probability that the jury would have had a reasonable doubt about whether Dolphin had been threatened by the petitioner's co-defendants, and thus, there is a reasonable probability that the petitioner would have been acquitted of all charges.
The petitioner's first habeas counsel's performance was deficient because he failed to raise this claim in relation to the petitioner's trial counsel's performance. There is a reasonable probability that, but for the petitioner's first habeas counsel's deficient performance, the petitioner's convictions would have been vacated as a result of his first petition for a writ of habeas corpus, and that the petitioner would have been acquitted of all charges at any subsequent criminal trial.
The shooting which gave rise to this case occurred on March 21, 1994. While Dolphin implicated Baker, Butler and Harris shortly afterward, he did not implicate the petitioner until October 31, 1995 despite being shown a photo array containing the petitioner's picture in March of 1995.
At trial, Dolphin gave as his reason for not identifying the petitioner that the petitioner's co-defendants had threatened him while they were all incarcerated together at the New Haven Correctional Center.
In support of this claim, the petitioner elicited testimony from Michelle Deveau, a Records Specialist with the Department of Corrections and Robert Correa who is presently the Warden of the New Haven Correctional Center.
In order to prevail on this claim, the petitioner is required to prove that trial counsel, Attorney Conroy, was ineffective and had it not been for such deficiency, the petitioner would likely have been acquitted. The court must therefore find that had the jury heard the testimony that was elicited during this habeas trial, they probably would have had a reasonable doubt about the testimony of Dolphin and the petitioner would have probably been acquitted.
After a careful review of the testimony, particularly that of Warden Correa, it is the opinion of the court that the petitioner has proven that the petitioner's co-defendants were likely housed in the cell block area of New Haven Correctional Center and that Dolphin was likely housed in the dorms. However, it is also that opinion of the court that the petitioner has not proven that his co-defendants and Dolphin could not have had contact with each other despite the fact that they were in separate housing facilities.
Therefore, it is the opinion of the courts that the petitioner has not proven his claim that, but for the deficiency of trial counsel, he probably would have been acquitted.
For the above reasons, the petition is hereby dismissed.