Opinion
CV144006489
10-04-2018
Anthony THOMPSON v. WARDEN
UNPUBLISHED OPINION
Hon. John M. Newson Judge of the Superior Court
I. Procedural History
The petitioner was the defendant in State v. Anthony Thompson, docket no. CR05-0590279. At all times material to the claims in this petition, he was represented by Attorney Walter Hussey. The matter was tried to the jury in the Judicial District of Hartford. The relevant facts that could reasonably have been found by the jury, as found by the Appellate Court, are as follows:
On the evening of February 13, 2005, at approximately 11 p.m., the defendant and Andre Drummond arrived at the Cleveland Café (bar) in the city of Hartford, where the defendant planned to meet one of his girlfriends, Sherlon Glassford. The defendant drove to the bar in a 2002 silver Infiniti that belonged to him and to his other girlfriend, Renata Lovelace, but was registered in Lovelace’s name. Also at the bar that evening were three other men, O’Neill Robinson, Barrington Delisser (Barrington) and Boris Delisser (Marcel), who entered through the main entrance and were searched by security personnel for weapons. The three men went to a separate room located on the left side of the bar, where Marcel began a conversation with Glassford and Asher Glace, both of whom he knew. While Marcel was talking with Glassford, Drummond moved in between them and began his own conversation with Glassford. During the conversation, Drummond stepped on Marcel’s foot. When Marcel stepped back, Drummond turned around and stepped on his foot again. After the two exchanged words, Drummond walked over and spoke with the defendant.
Approximately thirty minutes later, the defendant approached the group and spoke briefly with Glassford. He then turned around and began arguing with Marcel about his earlier interaction with Drummond. Robinson, who had been standing behind Marcel, stepped in between Marcel and the defendant. The defendant then shoved Robinson, and a fight ensued. At least four people participated in the fight, including the defendant, Robinson, Robinson’s nephew, Ryan Saunders, and a man known as "Hollywood." During the fight, the defendant struck Saunders on the head with a beer bottle, causing him to collapse on the floor. Hollywood responded by pulling out a knife and stabbing the defendant, causing him to bleed from his face and arm. The fight lasted for approximately two or three minutes before security personnel intervened.
After the fight, the defendant left the bar, went to his Infiniti and retrieved a gun. He immediately went back and reentered the bar through an exit door, thus avoiding security, and fired at least three bullets. One bullet struck the back of Robinson’s head, causing his death. A second bullet struck another patron, Renita Fair, in the back of her right thigh. A third bullet struck Barrington in the right leg.
Following the shooting, the defendant ran out of the bar, removed the license plate on the Infiniti and fled from the scene in another vehicle. Another patron, James Castellani, who was smoking a cigarette outside, saw blood drip from the defendant’s arm onto the rear bumper of the Infiniti. The defendant did not go to a hospital in Hartford to seek attention for his injuries but traveled to Midstate Medical Center in the city of Meriden, where he received treatment under the name of his brother, Earl Thompson. The next day, the defendant fled to Jamaica.
On May 11, 2005, the defendant was extradited to the United States and charged with murder and two counts of assault in the first degree. At trial, four witnesses testified that the defendant was in possession of a firearm immediately before or after the shooting, and two witnesses identified him as the shooter. A written statement by Glace, the only person to identify the defendant as the shooter before the trial, was also admitted into evidence. A jury found the defendant guilty as charged, and, on September 19, 2008, the trial court sentenced him to a total effective sentence of seventy years incarceration.(Footnote omitted.) State v. Thompson, 305 Conn. 412, 415-17, 45 A.3d 605 (2012). The petitioner’s convictions were affirmed on appeal; Id. ; and his petition for certification to the United States Supreme Court was denied. Thompson v. Connecticut, 568 U.S. 1146, 133 S.Ct. 988, 184 L.Ed.2d 767 (2013). The petitioner commenced the present action on August 21, 2014. In the Amended Petition dated February 10, 2017, the petitioner asserts a number of claims of ineffective assistance against Attorney Hussey in the first two counts, and what can be fairly classified as a claim of prosecutorial misconduct in the third count. The matter was tried to the Court on August 20 and 21, 2018. Additional facts and procedural history will be discussed as necessary and relevant to the decision.
The claim is titled, "State’s Failure to Disclose Exculpatory Evidence." While the title does not reference a typical habeas claim, the substance of the allegations reasonably assert a claim of prosecutorial misconduct for violating the petitioner’s due process rights by failing to turn over exculpatory information required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See, Votre v. County Obstetrics & Gynecology Group., P.C., 113 Conn.App. 569, 576, 966 A.2d 813, cert. denied, 292 Conn . 911, 973 A.2d 661 (2009) ("[I]n determining the nature of a pleading filed by a party, [the court is] not bound by the label affixed to that pleading by the party").
II. Law and Discussion
INEFFECTIVE ASSISTANCE AGAINST TRIAL COUNSEL- WALTER HUSSEY
"The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "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. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show 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. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "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." Id., 689. "Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. [The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 690.
Under the second prong of the test, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 691. "[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id., 693. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "The defendant 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." Id., 694. "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like." Id., 695. The court "must consider the totality of the evidence before the judge or jury." Id. "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
The petitioner has brought a complaint that alleges, almost literally, that his trial counsel was ineffective in every aspect of his representation from inception to sentencing. He alleges that Attorney Hussey was ineffective for failing to properly investigate facts of the case, the State’s witnesses, and potential defense witnesses, for failing to properly explain the risks and benefits of a plea offer or to recommend a favorable plea offer, for failing to explain the risks and benefits of going to trial, for failing to properly impeach most of the witnesses who testified during the trial and for failing to elicit exculpatory evidence from others, for failing to object to certain evidence, for failing to properly prepare the petitioner for his own testimony, for failing to file a request to charge or to request jury charges on lesser included offenses, for failing to give a proper summation to the jury, and for failing to preserve some of the above issues for appeal.
In order to place Attorney Hussey’s task of defending the petitioner into context, it bears noting that, despite the fact Asher Glace, an admitted "girlfriend" of the petitioner, provided a sworn statement to the police in the immediate aftermath of the incident that she had seen the petitioner fire the gun and had identified his photograph from a photo array, the petitioner maintained as his defense that he had left the bar following the physical fight and never reentered. It was with that in mind that trial counsel was required to conduct his investigation and to frame his theory of defense. As will be detailed below, the Court finds that Attorney Hussey provided zealous and competent representation to the petitioner in the present case. Strickland v. Washington, supra, 466 U.S. 686.
Failure to Investigate and Failure to Properly Prepare
The petitioner relies heavily on claims, framed in various ways, that Attorney Hussey failed to conduct an adequate investigation or to adequately prepare for trial. Based on the evidence, however, this could not be further from the truth. It is abundantly clear from the evidence presented before this court, and from the record of the case, that Attorney Hussey conducted a competently thorough investigation into the facts of the case, and, although some refused to speak with him, into the potential witnesses who might testify against the petitioner. He also hired an investigator and visited the scene of the crime personally on several occasions. He also vigorously litigated numerous pretrial issues involved in the case, including the pivotal issue of whether the written statement of Asher Glace, the only person who had positively identified the petitioner as the shooter prior to trial, would be allowed into evidence, since she was deceased at the time of trial. While the petitioner would like to fault Attorney Hussey for the fact that several witnesses who were unable to anyone as the shooter prior to trial, changed their testimony to identifying the petitioner at trial, or that he was unsuccessful in excluding Asher Glace’s statement from being admitted into evidence, he offers no credible path for how he could have achieved a more positive outcome. Strickland, supra, 466 U.S. 688.
The petitioner alleges several other failures of trial counsel to prohibit the admission of certain evidence, such as his violations of certain Department of Correction administrative regulations, and that individuals known as "Hollywood" and "Gucci," who were allegedly part of the initial altercation on the night in question, had died prior to trial. The petitioner fails, however, to provide any credible legal strategy by which Attorney Hussey could have prevented the admission of this evidence. The petitioner has also failed to show that this information was either material or relevant to the outcome of the case, or that there is any reasonable basis to believe that preclusion of any of it would have resulted in a more favorable outcome. Id. As such, these claims fail.
In the end, the petitioner seems to allege that the admission of any damaging evidence, or the loss of any pretrial motion, was the result of Attorney Hussey’s deficient performance, when, as the record more accurately supports, these things do not appear to have gone in the petitioner’s favor despite Attorney Hussey’s zealous and competent advocacy. The petitioner has failed, by a wide margin, to show that Attorney Hussey’s performance was constitutionally deficient with respect to any of these issues. Id. ("The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.") The petitioner has also failed to show that there is any reasonable probability that there is any conduct Attorney Hussey could have engaged in- prohibiting the admission of evidence, getting certain evidence admitted, or any additional investigation or preparation- that would have provided a more favorable outcome. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. Having failed to meet his burden under either prong of the Strickland standard, the petitioner’s claims fail. Id.
This resolves the claims contained in Count One, paragraph 18(a), (b) and (e).
Failure to Properly Cross Examine and Impeach Certain Witnesses
The petitioner also makes general claims that Attorney Hussey failed to properly cross examine and impeach certain witnesses. Among others, the complaint makes specific reference to his alleged failure to properly cross examine Steven Nelson about the dates of operation of a barbershop he mentioned in his testimony, failing to confront Paulette Shelton about her reference to a burgundy vehicle and the dates during which the petitioner owned that vehicle, and failing to properly cross examine the medical examiner about the trajectory of bullets based on the wounds suffered by the victims. Again, however, the petitioner has failed to meet his burden of proof. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
These two claims are contained in the Amended Petition, Count One, paragraphs f (i ) and f (ii ). Since the petitioner presented no evidence at all on these issues, the Court considers them to have been abandoned and will not directly address them. See, Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622-24, 724 A.2d 508, cert. denied, 248 Conn . 905, 731 A.2d 309 (1999) (It is the petitioner’s burden to present witnesses and evidence in support of his claims).
Amended Petition, Count one, paragraph i.
The petitioner has failed to show how any of the cross examination issues he complains of were material or relevant to his convictions. More importantly, he has also failed to show what alternative information Attorney Hussey should have elicited from these individuals or how the lack of that additional cross examination information could reasonably have undermined the outcome of his case. Strickland v. Washington, supra, 466 U.S. 694. ("The defendant 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.") For instance, in light of the petitioner’s "I wasn’t there" defense theory, and given the particular facts of the present case, it would seem to be a reasonable tactical decision for trial counsel to avoid wasting time and energy on challenging the State’s medical witness about the particular trajectory from which bullets struck each of the victims. There no evidence anywhere in this case that the location from which the victims were shot, or that there was only one person firing a gun, was ever in dispute. This might have been a fertile ground for vigorous cross examination had there been some evidence that there were multiple shooters firing from different locations and the defense theory was that the petitioner was not, or could not have been, the person who fired the shots in question. Since Attorney Hussey was trying to support the petitioner’s "I was not there" defense, this issue is tangential, at best.
The same analysis would seem to apply to the petitioner’s related claim that counsel failed to effectively cross examine witnesses about inconsistencies regarding the location of particular doorways at the Cleveland Café, the color of the handgun, the number of people involved in the altercation that preceded the shooting, and the number of shots fired. Again, given the petitioner’s theory of defense, none of these issues appear to bear any reasonable tactical value towards raising reasonable doubt with the jury as to whether he was present at the time of the shooting. As counsel testified, he was trying to raise doubt with the jury as to whether the petitioner was even present when the shots were fired, not about whether he was the person who fired those shots.
The petitioner also complains of Attorney Hussey’s failure to properly cross examine witnesses about the description and identity of the shooter. Again, nothing could be farther from the truth. The record reveals that Attorney Hussey engaged in substantial and detailed cross examination of every identification witness called by the State. For example, he was able to elicit testimony from Barrington Delisser that he had been unable to identify anyone in particular as the shooter at the time of the incident, but asserted the ability to identify the petitioner as the shooter after he’d hired a lawyer and commenced civil litigation against the Cleveland Café . He was able to elicit that another witness, Calipha Baltimore, who testified at trial to seeing the petitioner running from the bar with a gun immediately after the shooting, had failed to provide this critical information to anyone until April 2008, just weeks prior to the trial, despite the fact that she had spoken to police on the night of the incident, was the decedent, O’Neill Robinson’s girlfriend, and had had numerous interactions with the court system and law enforcement in the three years between the shooting and trial. And, he was able to get Steven Nelson, who claimed the petitioner had admitted commission of the offense to him and to a plan to target potential witnesses while they were incarcerated together, to admit he only considered testifying after the fact, and under the consideration that he might be able to reduce his own fifty-five-year sentence. The cross examination of each of the State’s witnesses was similarly vigorous and detailed and completely in line with the petitioner’s "I wasn’t there" theory.
For example, a portion of the cross examination of Barrington Delisser went as follows:
Another example is that after Calipha Baltimore testified, "And that’s when I saw the accused runnin’ out the club." (Exhibit 29, Transcript, June 3, 2008, p. 72, ln. 1-2.) Attorney Hussey engaged in the following cross examination:
A: At that point, I was- I was goin’ by the ethics of the streets, keep my mouth shut. Then I came up with the idea, if I give them what they want maybe I could work something out in future pertainin’ to my situation.
Again, despite counsel’s zealous cross examination of the State’s witnesses, the jury found the evidence in the States’ favor. Further, even if Attorney Hussey’s cross examination had been found at all deficient, the petitioner has also failed to provide this Court with any additional cross examination questions he could have asked these witnesses, or evidence as to what additional information he could have elicited. Strickland v. Washington, supra, 466 U.S. 690 ("Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct"). Since the petitioner has failed to establish that counsel’s performance was constitutionally deficient or that there is any reasonable probability of a more favorable outcome, this claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
This resolves the claims in Count One, paragraph f, g, and h.
Failure to Adequately Consult with Petitioner and to Advise Him of Nature of Evidence
The petitioner makes several allegations that generally assert that Attorney Hussey failed to keep him adequately informed. Frankly, this claim lacks credibility. It was clear from the evidence, and the Court credits the testimony of Attorney Hussey, that the petitioner was made fully cognizant of the evidence and potential witnesses against him, as well as the overall nature of the charges he faced, and that he had discussed those options with counsel. Attorney Hussey testified that he would have provided the petitioner with copies of all relevant information in his case, except to the extent that he may have been limited by the Court or rule of practice, and the Court credits that testimony.
Included in this general set of claims is also an allegation that Attorney Hussey failed to properly prepare the petitioner for his testimony and failed to elicit exculpatory facts during his direct examination. Again, in viewing his testimony before this court and the trial court, the most obvious issues with the petitioner’s testimony were his contradictory statements, his unbelievable excuses, and his seemingly self-serving inability to remember things. Counsel cannot be faulted for not convincing the jury to believe a story that does not sound credible. Strickland v. Washington, supra, 466 U.S. 690 ("Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case ..."). Once again, therefore, the petitioner has failed to meet either prong of the Strickland test. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
For instance, the petitioner’s claim that, despite the fact that he was gravely injured, his brother drove him to Meriden for medical treatment because they were ambushed by a car shooting at them on their way to a hospital in Hartford; (Exhibit 33, Transcript of June 10, 2018, Testimony of Anthony Thompson, p. 93-94); or his claim that hospital staff "they didn’t ask me any questions," apparently not even to confirm his name and date of birth, when questioned about the fact that his ER treatment records were under his brother’s name; (Exhibit 33, p. 94, ln. 17-p. 95, ln. 4.); or why those hospital records indicated his injuries were from a car accident; or why they indicated he left the ER against medical advice and without his medications. (Exhibit 33, p. 111.) Finally, while the petitioner insists he went to Jamaica to address a property transaction that had been in the works "for weeks," credible evidence indicates that his father or brother purchased an "emergency" ticket for him through a travel agent the morning after this incident. (Exhibit 31, Transcript of June 5, 2008, Testimony of Rosemary Kiniry-Luddy, p. 23-25.)
This resolves the claims in Count One, paragraph c, j, and k.
Failure to Give a Competent Summation, Failure to Preserve "the above-referenced errors" for Appeal
Not much discussion is necessary for resolution of the above claims. As to either claim, the petitioner failed to provide any specific information as to which parts of counsel’s summation was constitutionally substandard or which specific errors he supposedly failed to properly preserve. Strickland v. Washington, supra, 466 U.S. 690 ("[The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment"). Just as important, the petitioner also failed to provide any evidence at all to support the probability that changing the summation would have resulted in a more favorable outcome at trial; Id., 694. ("The defendant 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"); or how preserving any particular one of these issue would have resulted in a more favorable outcome on appeal. See, Davis v. Commissioner of Correction, 117 Conn.App. 737, 740, 980 A.2d 933 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010) ("[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel’s error, the petitioner would have prevailed in his direct appeal"). Again, having failed to meet his burden as to either of the Strickland requirements, these claims fail. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
This resolves the claims in Count One, paragraphs n, and o.
Failure to File a Request to Charge
The petitioner makes a claim that Attorney Hussey was ineffective for failing to file a request to charge, generally, and for failing specifically to file a request to charge on a lesser included offense. Since the only evidence submitted at trial was that the petitioner claimed counsel should have requested a charge on a lesser included offense of manslaughter, the Court will address both claims together. Attorney Hussey testified that he intentionally avoided requesting a lesser included charge, because he didn’t want to give the jury a "compromise" charge. In other words, the State’s big charge was murder and he wanted to force the jury to make an "all or nothing" choice on that charge. He also testified that he believed asking for a charge on manslaughter, or insinuating that defense to the jury, which admits his client committed the act, but with some justification, conflicted with their defense theory that the petitioner was not present when the shots were fired, and he did not want to offer conflicting defense theories to the jury. The petitioner complains that he was never consulted about this decision.
As to the specific issue of Attorney Hussey not requesting a manslaughter instruction, "[o]ur Supreme Court has held that "counsel’s failure to request a lesser included offense instruction does not necessarily deprive a defendant of reasonably effective assistance of counsel ... It may be sound trial strategy not to request a lesser included offense instruction, hoping that the jury will simply return a not guilty verdict ... If the decision to not request a lesser included offense instruction may be part of the overall trial strategy to obtain a not guilty verdict, then clearly this decision is in the realm of strategy decisions to be made by the attorney." (Citation omitted.) Reeves v. Commissioner of Correction, 119 Conn.App. 852, 862, 989 A.2d 654, cert. denied, 296 Conn. 906, 992 A.2d 1135 (2010). In the present case, Attorney Hussey made a conscious strategic decision not to give the jury an opportunity to compromise. Given the petitioner’s insistence that he wasn’t present at the time of the shooting, the Court cannot find this to be an unreasonable tactical decision under the circumstances. As such, the petitioner’s claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
This resolves the claims in Count One, paragraphs l and m.
Failure to Properly Explain Plea Offer and to Recommend Favorable Plea Offer
By way of background, a plea offer was extended to the petitioner on or about January 31, 2018, to resolve the case. The petitioner claims that counsel told him that the state wanted to "resolve the case for 10 years." Attorney Hussey, on the other hand, testified credibly that an offer to a reduced charge of manslaughter for a sentence of 25 years, suspended after 12 years, followed by 5 years of probation, was made in January 2008. While the transcript of the proceeding does not reference the offer, it is clear one was made and Attorney Hussey requests a continuance to February 13, 2008, because the petitioner wanted to consult with his family, specifically his mother, about the offer. (Exhibit 18, Transcript of State v. Anthony Thompson, January 31, 2008.) The petitioner claims he went to court on February 13 and another date after that, but that Attorney Hussey did not appear and he was not called into court. The next record of the case being in court is April 14, 2008, the beginning of jury selection. The petitioner claims he was ready and willing to take the offer, but that Attorney Hussey’s failure to show up for the two court dates in question prohibited him from doing so. Attorney Hussey testified that he has no present memory of either of the court dates or why he did not appear.
By way of background, Asher Glace, the petitioner’s former girlfriend and the only person who had originally identified him as the shooter, was dead at this time. This offer came out, however, before the parties argued the motions, eventually decided in the State’s favor, allowing her written statement to be introduced into evidence. The ruling was based, at least in part, on the State’s claims, almost completely circumstantial, that the petitioner and his brother had orchestrated her death in order to remove the only eyewitness against him. Although both were ultimately charged in Asher Glace’s death, the State subsequently nolled the charges against both men.
This really comes down to a matter of credibility, and common sense, because there is no record of what the specific offer was, no information as to why the offer was not addressed in court between the time it was made and the beginning of jury selection, no record of the petitioner formally rejecting the offer or of the State’s Attorney formally withdrawing it. The petitioner claims the offer was "something like 10 years to serve," while Attorney Hussey testified his best memory was that the formal offer was 25 years, suspended after the service of 12, followed by 5 years of probation for a plea to manslaughter. He further testified that he believed the petitioner "wanted something like 8 years to serve," that he discussed this with the State’s Attorney, but he refused to modify his offer lower than the 25/12/5.
First, the petitioner is simply not credible when he suggests that he did not have enough information from Attorney Hussey to make an informed decision about whether to accept the offer or that Attorney Hussey failed to properly recommend that he accept the offer. The fact that the petitioner specifically asked to have a continuance to discuss the matter with his mother, who was traveling to the United State from Jamaica for the purpose, would seem to indicate that the petitioner had sufficient information, in his own mind, that he was at least prepared to consult with his family about making a final decision in the matter. Additionally, in the petitioner’s own testimony before this Court, he claims that he was "ready and willing" to take the offer, but for Attorney Hussey’s failure to appear at his next two court dates. The Court does not find him credible while he is claiming I was "ready and willing to take it," on the one hand, but at the same time claiming that Attorney Hussey failed to provide him with enough information to allow him to make an informed decision to accept the offer.
There is also other circumstantial evidence which, despite the fact that the petitioner now claims he was "ready and willing" to take the State’s offer, suggests otherwise. First, while his memory was not completely solid, Attorney Hussey remembers attempting to negotiate an offer lower than the 25/12/5, that the petitioner wanted "something like 8 years to serve," which is evidence that the petitioner indicated an unwillingness to accept that offer. Secondly, common sense and experience with the practice and handling of "Part A" cases informs us that offers in cases this serious simply to not vanish into thin air. The complexities of something like a murder case requires considered and deliberate action from all parties, especially a State’s Attorney extending an offer to finally resolve the matter. It is also the normal practice here in Connecticut that judges are involved in the pretrial negotiation process in "Part A" cases almost from the arraignment. In that respect, and while the Court is fully aware that an offer can be withdrawn at any time before it is accepted, it is difficult, if not impossible, for the Court to believe, as the petitioner’s claim insinuates, that the State’s Attorney withdrew the offer simply because Attorney Hussey did not appear at either of two court dates scheduled between January 31st and the beginning of jury selection, and that neither Attorney Hussey or the assigned pretrial judge made a record of the matter. Further confirmation that the petitioner had no intention on accepting the State’s offer is that fact that not once subsequent to January 31, 2008- not once during the many days of jury selection, not during the pretrial evidentiary hearings, not during the trial, not after the jury had rendered its verdict of guilty, not even after he was sentenced to 70 years to serve, more than five times the amount of incarceration in the plea offer- did the petitioner once raise the issue, "Why are we going to trial? What happened to my 12-year offer?" Despite the fact that Attorney Hussey testified that he would rather have worked out a deal for his client than proceeding to trial, there is not a single mention of offers or settlement discussion by anyone subsequent to January 31, 2018. The petitioner’s assertion that he inquired about the offer on the first day of jury selection, believing he had come to court to resolve the case, and that Attorney Hussey simply responded, "That’s gone," and that the petitioner never again raised the issue during the two and one-half months of court dates comprising his trial because he was informed not to interrupt the trial judge is simply not credible, nor is the claim that he was privately insisting on resolving the case to Attorney Hussey, but he simply ignored him.
Jury selection began on April 9, 2008, and the jury rendered its verdict on June 17, 2008.
A final, striking contradiction is that after Attorney Hussey allegedly let this great pretrial deal slip away, after the petitioner claims he outright ignored his requests to help him resolve one murder case for a very favorable deal, the petitioner retained none other than Attorney Hussey to represent him when he was charged with the Asher Glace murder between the jury verdict and his sentencing. The petitioner’s response that he re-hired Attorney Hussey for the Asher Glace murder case because Attorney Hussey said "he would take care of [him]," and "[he] just listened to [his] attorney" rang hollow and untrue.
In the end, the petitioner has failed to prove that it was Attorney Hussey’s constitutionally substandard representation that caused him to lose the benefit of the pretrial offer. Strickland v. Washington, supra, 466 U.S. 686. ("The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.") The Court also does not find credible the petitioner’s claim that he wanted to accept this pretrial offer instead of proceeding to trial. See Ebron v. Commissioner of Correction, 307 Conn. 342, 352-59, 53 A.3d 983, 989-93 (2012) cert. denied, 569 U.S. 913, 133 S.Ct. 1726, 185 L.Ed.2d 802 (2013). Instead, the credible evidence before the Court indicates the petitioner was intent on taking this case to trial from the outset. Therefore, the Court also finds that he has failed to prove the he was prejudiced in any way. On either basis, therefore, this claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
This resolves the claim in Count One, paragraph d.
Count Two- Ineffective Assistance Due to Actual Conflict of Interest and Count Three- State’s Failure to Disclose Exculpatory Evidence
The petitioner’s final claim is that Attorney Hussey was ineffective due to an actual conflict of interest. Specifically, in Count Two, the petitioner claims that Attorney Hussey was simultaneously representing a person named Everton Gardner at a time when Mr. Gardner was acting as an informant for the Hartford Police Department providing information detrimental to the petitioner in regards to the Cleveland Caféshooting, including the possible location of the murder weapon. Again, the petitioner has failed to prove his claim. In Count Three, the petitioner claims the State failed to disclose information about Everton Gardner and the information he was allegedly providing prior to trial.
"Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where ... the defendant claims that his counsel was burdened by an actual conflict of interest ... the defendant need not establish actual prejudice ... Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests ... In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely affected his lawyer’s performance." (Internal quotation marks omitted.) Day v. Commissioner of Correction, 118 Conn.App. 130, 136-37, (2009), cert. denied, 294 Conn. 930, 986 A.2d 1055 (2010).
This claim does not bear much discussion to resolve. While Attorney Hussey did admit representing an individual named Everton Gardner, the petitioner did not elicit from him or otherwise produce any evidence as to the dates of that representation or that Attorney Hussey’s representation of Everton Gardner overlapped at all with his representation of the petitioner. He was also unable to produce any actual evidence that Mr. Gardner had provided any information to police in any case, let alone information relevant or material to the petitioner’s case. In the end, the only evidence the petitioner was able to elicit that Mr. Gardner was a witness of any kind for the State was unsupported hearsay information the petitioner supposedly accumulated through the "prison grapevine." Any one of these deficiencies alone is enough to be fatal to both Counts Two and Three. Day v. Commissioner of Correction, supra, 118 Conn.App. 136-37.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED. Judgment shall enter in favor of the RESPONDENT.
Q: And you saw more photographs [in March ‘05] and you did not pick out Mr. Thompson. Correct?
A: Right.
Q: Then, in April of that year, ‘05, you come back to the police department once again and you give a statement. Right?
A: Right.
Q: And you see some more photographs. Right?
A: Right.
Q: And, yet, you didn’t identify Mr. Thompson on that occasion, did you?
A: Right?
Q: OK. So now, forty months after the shooting, you come to court, take the stand, and now you know his name, by the way, you call him Anthony. How is it that you learned his name?
A: On the news ...Exhibit 29, Transcript of State v. Thompson, HHDCR05-0590279, June 3, 2008, p. 22, lns. 3-20. Further into this same cross examination, Attorney Hussey elicited the following:
Q: Ok. So, when you say Anthony, as if you know him when you’re in court, you really don’t know who he is. At the time of the shooting you had no idea who this individual was. Right?
A: I have no idea of- nothing about him.
Q: Okay. But yet you called him Anthony yesterday.
A: Yes. Because someone implied as, you know, they would rather me address him as his name instead of staying that the shooter over there ...
Q: Well, you do know who Anthony Thompson is because you, in fact, hired an attorney to sue the Cleveland Caféand the owners of the Cleveland Café . Correct?
A: Would you say that again, please?
Q: Is it not true that you retained Attorney Jeanette Chambers to sue the bar, the Cleveland Café, and the owners of the bar
A: Yes.
Q: You filed a civil lawsuit. Correct?
A: Yes.Exhibit 29, Transcript of State v. Thompson, HHDCR05-0590279, June 3, 2008, p. 23, ln. 22-p. 24, ln. 17.
Q: No. My point is, why didn’t you ... tell the police I was a witness to what happened; I can identify the man with the gun when you were incarcerated in the year 2005?
A: Because at the time I didn’t- I didn’t- I knew it was important, but I- like I said, I wanted to leave it alone.
Q: Walla [a.k.a. O’Neil Robinson] was important to you. Correct?
A: Yes.
Q: And he fathered one of your children?
A: Yes.
Q: In fact, you got a tattoo of him on your arm.
A: Yes.
Q: And you claim today that you know the person that’s probably responsible for his death, you never told the authorities.
A: No.
Q: Never not once. Not until this prosecutor and his inspector came down to Danbury to meet with you April of this year [2008], and then you say oh, by the way, I have some information. Right?
A: No. That’s not what- that’s not what happened. I call home and I heard that they came and talked to my sister.
Q: And that would have been in 2008, this very year.
A: Yes ...Exhibit 29, Transcript, June 3, 2008, p. 90. Later in the cross examination, Attorney Hussey elicits the following:
Q: And police brought you down to the hospital [on the night of the shooting]. Correct?
A: Yes ...
Q: Ok. You know all these people that are involved in this case, and until this year you never told authorities what you know about this situation.
A: No.Exhibit 29, Transcript, June 3, 2008, p. 91, ln. 17 to p. 92, ln. 14.
Q: That’s really what it’s about. It’s about you getting’ out from under this fifty-five-year sentence, isn’t it?
A: Like I said, his brother was my friend. I never thought about doin’ this until I figure it would help my situation.Exhibit 31, Transcript, June 5, 2008, Testimony of Steven Nelson, p. 97, ln. 25-p. 98, ln. 6.