Opinion
CV144005930S
05-09-2016
Tinesse Tilus (Inmate # 387720) v. Warden, State Prison
UNPUBLISHED OPINION
REVISED MEMORANDUM OF DECISION
This court rendered judgment on January 11, 2016, for the reasons articulated in its original memorandum of decision. On January 15, 2016, the petitioner filed a petition for certification to appeal, which was granted, and a motion to reargue, which also was granted. The motion to reargue only pertains to count one of the amended petition and, although not explicitly requested by the petitioner, asks this court to reconsider the legal basis for dismissal without prejudice of count one. The parties thereafter appeared before this court on February 23, 2016, to present further arguments. Based upon all the arguments presented by both counsel, this court has reconsidered its dismissal without prejudice of count one. This revised memorandum of decision, therefore, differs from the original memorandum of decision only as to count one.
William H. Bright, J.
The petitioner, Tinesse Tilus, alleges in his amended petition for a writ of habeas corpus, filed on March 19, 2015, that his right to non-conflicted trial counsel was violated and that he received ineffective assistance of trial counsel. The respondent's return denies the petitioner's material allegations and asserts that the claim in count one of the amended petition is not ripe for adjudication because a claim in the still pending direct appeal is dispositive of this claim. The petitioner filed a reply asserting that his claim in count one is ripe for adjudication because he has been actually injured by trial counsel's purported actual conflict of interest and, therefore, count one is not contingent on the outcome of the direct appeal.
The parties appeared before the court on July 20 and 21, 2015, for a trial on the merits. The petitioner testified and presented the testimonies of Julio Ortiz, Joseph Marchio, Dana Brookman, Elizabeth Santora, Christopher Martin and Attorney Eroll Skyers. The petitioner also called Jean Barjon as a witness; however, Mr. Barjon invoked his constitutional right under the Fifth Amendment not to testify. The respondent presented the testimony of Senior Assistant State's Attorney Joseph Harry, who prosecuted the petitioner's criminal case. Both parties entered documents, primarily copies of transcripts, into evidence. Additionally, both parties filed post-trial briefs.
For the reasons articulated more fully below, the claim in counts one and two are denied.
CRIMINAL TRIAL AND DIRECT APPEAL
The petitioner was arrested and charged in docket number CR11-2602057, judicial district of Fairfield at Bridgeport, with one count of robbery in the first degree in violation of General Statutes § 53a-134(a)(2) and one count of conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 and 53a-134(a)(2). The petitioner, who was represented by Attorney Eroll Skyers, proceeded to trial before a jury, which found the petitioner guilty of robbery in the first degree but not guilty of conspiracy to commit robbery in the first degree.
The petitioner appealed from the judgment of conviction and raised four claims, namely " that (1) the trial court violated his sixth amendment right to conflict free counsel by inadequately canvassing him as to his desire to proceed with retained counsel who had previously represented both him and one of his codefendants in the case; (2) the trial court violated his sixth amendment right to present a defense by inducing that same codefendant, a key defense witness, to invoke his fifth amendment privilege against self-incrimination and not testify; (3) the trial court abused its discretion by declining to admit certain physical evidence received from his nontestifying codefendant in support of his theory of defense; and (4) the prosecutor violated his right to a fair trial by committing several improprieties in closing and rebuttal arguments to the jury." State v. Tilus, 157 Conn.App. 453, 455, 117 A.3d 920 (2015). The Appellate Court affirmed the judgment of the trial court. Id., 455.
" The jury was presented with the following evidence upon which to base its verdict. On December 28, 2011, at approximately 8 p.m., Rene Aldof and his employee, Ramon Tavares, were tending Aldof's store, the Caribbean-American Grocery and Deli (store) located at 263 Wood Avenue in Bridgeport, when four men entered the store. One of the men was the [petitioner], whom Aldof recognized as 'Tinesse, ' a regular customer of the store. Aldof also recognized a second man, Jean Barjon, but did not recognize either of the two other men. One of the unknown men pulled out a handgun and demanded that Aldof give him the money, while the other three men, including the [petitioner], 'encased' him in an effort to prevent his escape. Aldof was able to push past the men and exit the store, pursued by one of the men, who unsuccessfully attempted to restrain him by grabbing his coat. Aldof ran into a nearby laundromat, where he held the door shut to prevent his pursuer from coming in behind him.
" Tavares, who remained in the store after Aldof's departure, was stationed in a plexiglass enclosed booth where the cash register was located. A man approached the booth, pointed a handgun at Tavares head and ordered him to open the door. Tavares immediately complied, and the man entered the booth. The man, still holding the gun in his outstretched hand, 'turned' Tavares to face the wall and told him to place his hands up against the wall. Tavares 'felt something in the back of [his] head, ' and the man demanded that he 'give him all the money.' The man took Tavares' cell phone and wallet, and the money in the cash register. Tavares asked the man to return his wallet, as it contained his papers, and the man did so, keeping only the cash inside the wallet. Tavares stood facing the wall until he heard the man exit the store.
" Tavares testified that he saw one man during the robbery. At trial, Tavares identified the [petitioner], not in connection with the robbery, but as a customer of the store, who frequently came there to eat."
" Patrol Officer Elizabeth Santora, of the Bridgeport Police Department, was on her dinner break, driving down Wood Avenue in a marked police cruiser, when she observed a person later identified as Aldof, standing outside of the Laundromat, waving his arms and screaming 'like a crazy person because [he] thought that [he] was going to die.' Aldof told Santora that he had just been robbed at gunpoint, and he pointed to one of his alleged assailants, who was still in the immediate vicinity. Once Santora focused on the suspect, he started walking fast down Wood Avenue. Santora immediately followed him in her cruiser, and Aldof followed on foot, shouting that the man had just robbed him.
" Santora kept the suspect in her sights as he broke into a run and turned the corner onto Sherwood Avenue. There, Santora observed the suspect come to a halt next to several trash cans outside of the Esquina Latina Restaurant. Santora stopped her cruiser, got out of her vehicle and shouted, 'don't even fucking move.' The suspect heeded the order. Santora approached the suspect, gave him a 'quick patdown, ' then grabbed him by the back of his pants and pulled him toward the police cruiser.
" As Santora approached the cruiser with the suspect in tow, she observed a white Nissan Altima that had been parked on Sherwood Avenue begin 'pulling off into the street. Aldof, then positioned on the corner of Wood and Sherwood Avenues, told Santora that the three men in the Altima had also been involved in the robbery. Santora flagged down the vehicle and told its driver to stop the car and give her the keys. The driver obeyed. The first suspect and the three men in the Altima were detained for questioning. The men were later identified as Guillatemps Jean-Philippe, Jean Louis, Barjon, and the [petitioner]. Aldof confirmed that the detainees were the same four men who had robbed his store.
" Once the scene had been secured, Santora and several other members of the Bridgeport Police Department searched the surrounding area for the gun that allegedly had been used to perpetrate the robbery. A nine millimeter pistol was discovered on the ground in the vicinity of the trash cans where Santora had apprehended the fleeing suspect. The pistol was taken into evidence and later sent to the firearm and tool mark division of the state forensic science laboratory for testing and analysis. The pistol was examined, test fired and found to be operable. A search of a national database revealed that the pistol had been used in a recent incident in New Jersey.
" The [petitioner] was arrested and charged with one count each of conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 and 53a-134, and robbery in the first degree in violation of § 53a-134. The [petitioner] pleaded not guilty to the charges and elected a jury trial.
" The [petitioner], who testified in his own defense, challenged Aldof's account of events on the evening of the alleged robbery. The [petitioner] testified that he had known Aldof since he was a small child because their families came from the same part of Haiti. He also testified that he had been in Aldof's store 'many times, ' and that on such occasions he had observed Aldof running an illegal Dominican lottery. The defense claimed that Aldof had concocted his story about the alleged robbery to avoid paying out a large sum of money to one of the alleged coconspirators, Jean-Philippe, who had gone to Aldof's store alone that evening to collect on a winning lottery ticket he had bought there.
" The [petitioner] explained that on the night of the alleged robbery, his friend, Barjon, had come to his house at about 7 p.m. and asked him if he would like to take a ride to New Haven. When he agreed to do so, he got in Barjon's car, where Jean-Philippe and another man he did not know were seated in the rear passenger seat. The [petitioner] was told that Barjon had agreed to drive the two men to the train station in New Haven. Instead, however, Barjon drove to Aldof's store and parked his car on the corner of Wood and Sherwood Avenues. The [petitioner] testified that once they arrived at the store, Jean-Philippe, 'with no mention, nothing, ' got out of the car and entered the store. The [petitioner] and the other two men remained in the parked car, where the [petitioner] called a friend on his cell phone. Shortly thereafter, while he was still on the phone, he saw Jean-Philippe and a police officer approaching the vehicle. When Jean-Philippe tried to open the car door, the police officer ordered him to stop. The [petitioner] and the other two men were then escorted into a police van, questioned, and later arrested.
" Jean-Philippe also testified for the defense. Jean-Philippe stated that he did not know the [petitioner], but that he was a friend of Barjon. He testified that he had gone to Aldof's store on the evening of December 28, 2011, to collect $39,000 in lottery winnings, but that Aldof had refused to pay him. Jean-Philippe claimed that he went into the store alone while the other three men remained in the car, drinking coffee and smoking cigarettes. In the store, Jean-Philippe met Aldof, whom he referred to as the 'old man, ' and produced his receipt with the winning lottery numbers and showed it to him. In response, Aldof left the store and walked into the laundromat next door. When Jean-Philippe was later arrested, he told police that he had played the lottery at the store and had gone back there to collect his money. Jean-Philippe also claimed not to have seen anyone but Aldof in the store that evening, although he testified that he did not know whether someone else may have been in the store, in the section 'where they play the Lotto . . .' Jean-Philippe denied having a pistol.
" By the time of the defendant's trial, Jean-Philippe had entered a guilty plea under the Alford doctrine; see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); to charges of robbery in the first degree and conspiracy to commit robbery in the first degree in connection with the same incident."
" Jean-Philippe testified that the winning ticket had been confiscated by the police."
" Jean-Philippe described this section of the store as an area to the left of the store entrance with a 'white door . . .' The record indicates that the area described by Jean-Philippe had been partitioned behind a plexiglass enclosure with a one-way glass window at the time of the robbery, and it was subsequently remodeled. Tavares testified that he was in the plexiglass booth at the time of the robbery."
" The jury found the [petitioner] guilty of robbery in the first degree. The jury found him not guilty, however, of conspiracy to commit robbery in the first degree. The court rendered judgment in accordance with the jury's verdict, sentencing the [petitioner] to a term of twelve years incarceration, execution suspended after eight years, followed by four years of probation." Id., 455-60.
Subsequently, the Supreme Court granted the petitioner's petition for certification to appeal from the Appellate Court's decision. State v. Tilus, 317 Conn. 915, 117 A.3d 854 (2015). Certification to appeal was granted, limited to the following issues: " 1. Did the Appellate Court properly determine that the trial court secured a valid waiver of the defendant's constitutional right to conflict free representation? 2. Did the Appellate Court properly determine that the prosecutor did not violate the defendant's right to a fair trial in the prosecutor's closing argument?" Id.
HABEAS CORPUS CLAIMS
The amended petition asserts claims in two counts. First, that the petitioner was deprived of his right to non-conflicted trial counsel as protected by the Sixth and Fourteenth Amendments to the United States Constitution and Article First, § § 8 and 9, of the Connecticut Constitution. Second, that the petitioner's right to the effective assistance of trial counsel, as protected by the same constitutional safeguards, was violated.
I.
The petitioner alleges in count one that Attorney Skyers had an actual conflict of interest that adversely affected his representation of the petitioner. More specifically, the petitioner alleges that Attorney Skyers: (1) made no attempt to negotiate a favorable plea offer for the petitioner in exchange for him testifying against Barjon; (2) did not hire an investigator to undertake a timely factual investigation; (3) failed to request that forensic testing be performed on a firearm that was recovered near the location of the alleged robbery; (4) failed to consider the possibility that non-conflicted counsel would advise Barjon to invoke his fifth amendment privilege and refuse to testify on the petitioner's behalf; (5) failed to advise the petitioner that non-conflicted counsel would advise Barjon to invoke his fifth amendment privilege and refuse to testify on the petitioner's behalf; and (6) failed to adequately prepare and present a defense that did not rely on the testimony of Barjon. The petitioner's allegations in the first count acknowledge that he has raised a conflict of interest claim on direct appeal. At the time the amended petition was filed on March 19, 2015, however, the Appellate Court had not decided the appeal. The Appellate Court's decision was officially released on May 26, 2015, and the Supreme Court granted certification to appeal on July 8, 2015.
Paragraph 23 of the amended petition asserts the following: " The petitioner has raised this claim in State of Connecticut v Tinesse Tilus, A.C. 35567."
The respondent's return, which also was filed before the Appellate Court decision was released, argues that the claim in count one is not ripe for adjudication in this habeas corpus petition because it was still pending on appeal. In the alternative, the respondent asserts that res judicata would bar the petitioner from relitigating the claim once it has been decided in the direct appeal. The petitioner's reply to the return avers that the claim is ripe for adjudication because the petitioner was actually injured by trial counsel's conflict of interest. The reply further avers that the petitioner's injury is not contingent on the Appellate Court's decision in the direct appeal. The reply also anticipated, incorrectly, that " [i]t is reasonably likely that the [Appellate Court] will find that the petitioner's claim that his trial counsel had a conflict of interest requires further factual development."
The Appellate Court never addressed whether there in fact was a conflict of interest. The Appellate Court addressed the petitioner's argument that " . . . [Attorney] Skyers joint representation of himself and Barjon in the pretrial phase of the proceedings gave rise to a conflict of interest which jeopardized the [petitioner's] sixth and fourteenth amendment right to counsel. [The petitioner] further argue[d] that the court's inquiry into the matter was not adequate to apprise him of the risks of continued representation by Skyers and, thus, no valid waiver was obtained." State v. Tilus, supra, 157 Conn.App. 464. The Appellate Court limited its review to the record and the trial court's actions. Id., 464-65. " Here, the [petitioner] persisted in his desire to proceed to trial with the assistance of his chosen counsel. In light of the fact that the only anticipated impediment to Skyers' continued representation of the [petitioner] was the possibility that Barjon would choose to testify on the [petitioner's] behalf, which the court correctly deemed unlikely given Barjon's decision to proceed to trial, it properly deferred to the [petitioner's] expressed desire to proceed notwithstanding the potential conflict." Id., 472. If the direct appeal eventually results in the petitioner prevailing on this claim, and receiving a new criminal trial, then it is unclear what additional fact finding would be necessary aside from the criminal trial itself.
At the close of the habeas corpus trial, which occurred shortly after the Supreme Court granted certification to appeal from the Appellate Court's decision, this court asked the parties to brief the impact of the pending appeal on count one. The petitioner's brief argues that " [t]he Appellate Court's decision does not bar the petitioner's habeas claim for two reasons. First, the petitioner claimed on direct appeal that the trial court, rather than his counsel, violated his sixth amendment right. Second, the petitioner's habeas claim is premised upon counsel's conflict of interest and adverse effects that occurred prior to the hearing during which the trial court canvassed the petitioner about Skyers' continuing representation." Brief, p. 34. The petitioner's alleged injury is the keystone to his argument that count one is ripe for adjudication: " [h]ere, the petitioner does not present a hypothetical injury. He alleges that his [attorney] labored under a conflict of interest, and that the petitioner's sixth amendment right to counsel was violated by the conflict of interest. Furthermore, the injury is not contingent on some future event, and has already occurred." Id., p. 35.
The respondent's post-trial brief argues that the alleged conflict of interest claim is not ripe for adjudication. Brief, p. 10. The crux of the Appellate Court's decision, according to the respondent, is that the petitioner waived any potential conflict of interest. Id. Because the petitioner's appeal on that issue is now pending before the Supreme Court, it is not ripe for adjudication in the habeas corpus forum, because whether or not the petitioner was injured by any conflict of interest, if one even existed, will be determined by the Supreme Court and, therefore, remains hypothetical at this point. Id., pp. 11-12. The respondent, relying on Janulawicz v. Commissioner of Correction, 310 Conn. 265, 77 A3d 113 (2013), also claims that count one is not ripe for adjudication for a second reason. Should the petitioner prevail in the Supreme Court, his relief will almost assuredly be a new criminal trial, which would moot out the present habeas corpus petition. If the petitioner does not prevail, then res judicata would most likely prevent him from relitigating the conflict of interest claim in a habeas corpus petition, especially if the Supreme Court concluded that there was no conflict of interest.
The petitioner's reply brief argues that Janulawicz is distinguishable from the petitioner's case. Whereas the injury in Janulawicz (i.e., the loss of the right to appeal) had not yet occurred, the petitioner's injury (i.e., attorney conflict and loss of a plausible alternative defense strategy) allegedly already occurred and is not contingent on the Supreme Court's eventual decision addressing whether the trial court properly secured a valid waiver from the petitioner. Specifically, the petitioner claims that Attorney Skyer's conflict compromised his representation long before he was asked to waive any conflict. Even if the Supreme Court concludes that the petitioner waived any conflict from the point he was canvassed by Judge Devlin, that conclusion would not resolve the question of whether he was prejudiced by Attorney Skyer's earlier conflict and if such conflict tainted his representation. Consequently, the petitioner maintains that the claim in count one is ripe for adjudication.
In his motion to reargue, the petitioner further claims that the doctrine of prudential ripeness discussed in Janulawicz upon which this court relied in originally dismissing count one without prejudice should not be applied by this court because: 1) Connecticut law does not permit this court to decline jurisdiction when the state Constitution and statutes confer jurisdiction on the court; 2) the doctrine does not apply in case like this; 3) the petitioner would suffer harm if the court applied the doctrine here; 4) the factual record before this court is different than what is before the Supreme Court on the petitioner's direct appeal; and 5) use of the doctrine would deprive the petitioner of relief he is entitled to due to trial counsel's conflict of interest. Upon further consideration of the issue, the court agrees with the petitioner.
In Janulawicz, the Supreme Court addressed the issue of ripeness, even though the respondent had not raised that issue, because it implicated the court's subject matter jurisdiction. Id., 270. " Justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter . . . A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction . . . [T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent [on] some event that has not and indeed may never transpire . . . [R]ipeness is a sine qua non of justiciability . . ." (Internal citations and quotation marks omitted.) Id., 270-71.
The Supreme Court concluded that the habeas corpus petition in Janulawicz, which sought the restoration of the right to file a petition for certification to appeal to the Supreme Court, was not ripe for adjudication. Id., 275. " The petitioner's claim [was] contingent on [the Supreme Court's] denial of his motion to file a late petition for certification to appeal, an event that may never occur, thereby obviating any need for a resolution of the issues presented . . ." Id. The Supreme Court did note, however, that " even if the present case was ripe for adjudication, and therefore justiciable, prudential considerations would counsel against [their] review of this appeal before the petitioner has sought permission to file a late petition for certification. See, e.g., Simmonds v. Immigration & Naturalization Service, 326 F.3d 351, 357 (2d Cir. 2003) (describing doctrine of prudential ripeness in federal courts as 'a tool that courts may use to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may require premature examination of, especially, constitutional issues that time may make easier or less controversial')." Janulawicz v. Commissioner of Correction, supra, 310 Conn. at 275 n.13.
Although the Supreme Court has referenced the doctrine of prudential ripeness with approval and indicated a willingness to utilize it, thus far there is no appellate precedent in Connecticut in which the doctrine was relied on to hold a claim was not ripe. Further weakening the reliance on the doctrine as a basis for a trial court to find a claim is not ripe for adjudication is the distinction that can be made between cases such as Janulawicz, in which the Supreme Court itself is the court that would decide whether to grant a late petition for certification to appeal, and a habeas court awaiting a ruling by the Supreme Court on an interrelated claim in the direct appeal.
Most importantly, the court agrees that the conflict issue before it is different than the conflict/waiver issue addressed by the Appellate Court and currently before the Supreme Court. The Appellate Court addressed only the question of whether there was a conflict with Attorney Skyers representing the petitioner once Barjon decided he wanted to go to trial. The court assumed the existence of a conflict at that time and addressed whether the petitioner had effectively waived the conflict so that Skyers could represent him going forward, including at trial. The court concluded that the petitioner waived any conflict going forward. Whether that conclusion was correct is currently the question before the Supreme Court.
The petitioner's conflict claim here is different. The petitioner claims that Skyers had a conflict from the moment he decided to represent both the petitioner and Barjon, and never sought or received a legally effective waiver of that conflict. The petitioner further claims that the conflict prevented Skyers from seeking a resolution of the charges against the petitioner that might negatively affect Barjon. As an example, the petitioner argues that the dual representation prevented Skyers from offering to the state that the petitioner would testify against Barjon in exchange for a favorable disposition.
The respondent concedes that the petitioner's waiver of any conflict before Judge Devlin could only be prospective. Thus, the petitioner's claim of a pre-waiver conflict that impacted the effectiveness of Attorney Skyers is outside the scope of any such waiver and was not addressed by the Appellate Court and is not before the Supreme Court. Consequently, waiting for the Supreme Court to resolve the issue before it is unlikely to be of assistance to this court in resolving the conflict issue as framed by the petitioner. The petitioner's claim in count one is ripe and will be addressed on the merits.
Turning to the petitioner's claims in count one, the petitioner conceded at the hearing on the motion to reargue that the direct appeal will resolve all issues pertaining to the waiver itself and whether a conflict of interest impacted the petitioner subsequent to the canvass and waiver. The petitioner acknowledged that his claims in count one focus on events prior and leading up to the waiver. More specifically, as emphasized by the petitioner during the hearing on the motion to reargue, the petitioner's claims center on how counsel's alleged conflict of interest negatively impeded his ability to negotiate a plea agreement in which the petitioner would cooperate with the state in exchange for a favorable disposition of his criminal case.
The court notes that the majority of the failures alleged in count one are essentially also alleged in count two, though not premised on an alleged actual conflict of interest. See paragraphs (27)(B) through (F). Only paragraph (27)(A) is unique to count one.
The amended petition in paragraph (27)(A) of count one only identifies Jean Barjon as a codefendant the petitioner would testify against.
The following facts are relevant to the petitioner's claim. From his first meeting with Attorney Skyers through his criminal trial, the petitioner's version of the events that led to his arrest remained unchanged. He told Attorney Skyers that he knew Barjon and merely agreed to take a ride with Barjon to New Haven. He did not know the other individuals in the car when Barjon picked him up. Barjon told the petitioner that he was going to give the other two passengers a ride to the train station in New Haven. Instead, Barjon drove to Aldof's store and parked at the corner of Wood and Sherwood Avenues. When Jean-Phillippe left the car to enter the store, Barjon and the petitioner stayed in the car. The petitioner had no knowledge of any plan to rob the store or Aldof. The petitioner told Skyers that Barjon would corroborate the petitioner's version of events, and was willing to sign a statement consistent with what the petitioner told Skyers.
Within two to three weeks of being retained by the petitioner, Skyers met with Barjon, who confirmed the petitioner's story. Believing that both the petitioner and Barjon were in the same position, Skyers agreed to also represent Barjon. Although Skyers intended to have both clients sign waivers of any potential conflicts, he neglected to do so. Both the petitioner and Barjon knew that Skyers was representing them both simultaneously.
At some point prior to when the petitioner went to trial, Barjon agreed to enter a guilty plea under the Alford doctrine. Although still disputing the state's version of his involvement, he would accept legal responsibility for his part in the robbery, and then testify at the petitioner's trial that the petitioner had no involvement in the robbery. As more fully discussed below, when it came time to enter his plea, Barjon changed his mind. Attorney Skyers then withdrew from representing Barjon and Judge Devlin canvassed the petitioner about the fact that Attorney Skyers might be conflicted in representing the petitioner at trial because he could not be adverse to his former client either in questioning or by using confidential information Skyers had received from Barjon.
" In a case of a claimed conflict of interest ... 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 ... 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 ... Accordingly, an ineffectiveness claim predicated on an actual conflict of interest is unlike other ineffectiveness claims in that the petitioner need not establish actual prejudice ...
" An actual conflict of interest is more than a theoretical conflict. The United States Supreme Court has cautioned that the possibility of conflict is insufficient to impugn a criminal conviction ... A conflict is merely a potential conflict of interest if the interests of the defendant may place the attorney under inconsistent duties at some time in the future ... To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party ... A mere theoretical division of loyalties is not enough ... If a petitioner fails to meet that standard, for example, where only a potential conflict of interest has been established, prejudice will not be presumed, and the familiar Strickland prongs will apply." (Internal citations and quotation marks omitted.) Anderson v. Commissioner of Correction, 127 Conn.App. 538, 549-50, 15 A.3d 658 (2011), affd, 308 Conn. 456, 64 A.3d 325(2013).
As an initial matter, the court determines that there was no actual conflict of interest between the petitioner and Barjon. Both of them told Attorney Skyers the same version of events. Barjon and the petitioner maintained that they remained in the car and did not go into the store. They both said that they had nothing to do with the robbery. There is no evidence that the petitioner ever said or did anything to suggest that he had information that would implicate Barjon and that might be used to secure a favorable plea deal from the state. Ironically, it was Barjon who agreed to implicate himself and plead guilty so that he could then testify in support of the petitioner's defense. Even at the time of his unsuccessful Alford plea, Barjon insisted that he and the petitioner never went into the store and had remained in the car. Respondent's Exhibit A (Transcript, October 2, 2012), p. 9. In the end, before he withdrew from representing Barjon, Attorney Skyers negotiated a plea for Barjon that would have required him to plead guilty to one count of conspiracy to commit robbery in the first degree. Barjon would then have assisted the petitioner and his defense. There was no impairment or compromise of the petitioner's interests for the benefit of Barjon or any of the other codefendants.
The petitioner has failed to prove a single specific instance where Attorney Skyer's representation of him was compromised by the alleged conflict. His hypotheses of what might have happened in plea negotiations had Skyers not also represented Barjon are theoretical and speculative. At most, the petitioner has shown that Skyers had a potential conflict of interest and, as set forth above, the petitioner must meet both Strickland prongs to prevail on such a claim.
The court need not address the performance prong, because it is clear that the petitioner has failed to establish any prejudice from the potential conflict. There is no evidence that the petitioner was ever interested in accepting any plea agreement. In addition, the evidence established that the state likely would have seen little value in any cooperation from the petitioner. The victim who was the focus of the robbery, Aldof, told the police and later testified that all four men entered the store and participated in the robbery. He specifically identified the petitioner, whom Aldof knew, as being in the store and part of the robbery. The petitioner's version of events, which had him never leaving the car, was flatly inconsistent with Aldof's and would have been little use to the state in a trial against Barjon. The only testimony that would have been of value to the state in pursuing its cases against the other defendants would have been an admission from the petitioner that corroborated Aldof's statements. The petitioner never gave any indication to the state or any court that he was willing to so incriminate himself. Finally, the petitioner presented no evidence that he had anything to offer the police that he did not voluntarily provide from the beginning of the state's investigation. As noted above, his story never changed from when he was first arrested, through his criminal trial, through the trial before this court. There is no evidence that he had anything else that Attorney Skyers could have used to negotiate a favorable plea agreement for him. For these reasons, the petitioner has failed to prove that any potential conflict created by Skyer's joint representation of the petitioner and Barjon prejudiced him.
The court notes that subsequent to its original memorandum of decision, but prior to this revised memorandum of decision, the Appellate Court released its decision in another of the codefendant's direct appeals. See State v. Louis, 163 Conn.App. 55, ___ A.3d ___ (2016). The facts as found by the jury in that trial, conducted subsequent to the petitioner's and in which Jean Louis and Barjon were tried together, are consistent with those from the petitioner's jury trial. Id., 58-59. Jean Louis's " theory of defense was that he was 'merely present' at the time of the robbery and that Adolph's testimony was not believable. Barjon also claimed that he merely was present at the time of the robbery, that Adolph was not credible, and that Jean-Philippe acted alone in order to collect an unpaid debt from Adolph, who allegedly ran an illegal lottery from the market." Id., 59-60. The Appellate Court in a footnote noted that: " The jury found Barjon guilty of all four charges against him. In a separate trial, a jury found Tilus guilty of robbery in the first degree. See State v. Tilus, 157 Conn.App. 453, 117 A.3d 920, cert. granted, 317 Conn. 915, 117 A.3d 854 (2015). Prior to the defendant's [i.e., Jean Louis] trial, Jean-Philippe pleaded guilty to both robbery in the first degree and conspiracy to commit robbery in the first degree." Id., 60 n.4.
II.
The petitioner's second count alleges ten failures by Attorney Skyers, although these can be addressed in several smaller groupings. The petitioner's post-trial brief does not address five of the ten alleged deficiencies. The court finds these five bases for ineffective assistance of counsel that are not briefed to be abandoned. See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (" [R]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court."); Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) (" The petitioner's failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim."). Consequently, the court will only address the claims in paragraphs (33)(A), (E), (F), (H) and (I) of count two.
The five claims deemed abandoned are paragraphs (33)(B), (C), (D), (G) and (J). In addition to not briefing these claims, the petitioner offered little or no evidence relating to them. For example, called neither Aldof or Tavarez or otherwise showed how they could have been better cross-examined or impeached. Nor did he offer the supposedly exculpatory video surveillance evidence, or prove that it even existed at the time of the petitioner's criminal trial. Nor did he present any evidence regarding his sentencing. Finally, his claim that Attorney Skyers should have known that Barjon would refuse to testify at the petitioner's trial is not a separate claim, but is part and parcel of his failure to investigate claim, which is discussed below.
1. Failure to Adequately Conduct a Timely Factual Investigation and Present Testimonies of Jean-Philippe and Azcalt/(33)(A), (H) & (I)
The petitioner first alleges that Attorney Skyers failed to adequately conduct a timely factual investigation. This claim centers on the timing of the investigation conducted by Attorney Skyers and how that timing impacted the defense. As detailed more fully below, the court finds that Attorney Skyers rendered deficient performance as to the investigation he conducted, but that the petitioner has failed to prove the required prejudice.
a.
The court finds the following additional facts. The underlying offenses occurred on December 28, 2011. The petitioner was arrested on or about that date and, after posting bond, met with Attorney Skyers several days later, on or about December 31, 2011. The petitioner then spoke with Barjon, who was his friend and codefendant, and Barjon was willing to come to Skyers' office and provide a supporting statement for the petitioner. The petitioner informed Skyers of Barjon's willingness to cooperate and then passed on Skyers' phone number to Barjon. Skyers began representing Barjon in addition to the petitioner and met with them individually and/or together on one or more occasions, with the petitioner and Barjon apprising Skyers of their versions of the incident.
Attorney Skyers, based on what the petitioner and Barjon represented to him, viewed their defenses as the same and not in conflict. In part because Barjon was willing to give a statement on the petitioner's behalf, Barjon through Skyers negotiated a plea arrangement with the state. Barjon would plead guilty and then testify in the petitioner's defense. On October 2, 2012, Barjon and Skyers appeared before the court, Devlin, J., at which time Skyers informed the court that Barjon intended to change his plea to guilty and that the petitioner was proceeding to trial. Respondent's Exhibit A, p. 1. Barjon initially entered a guilty plea to one count of conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 and 53a-134(a)(4) but the plea canvass was unsuccessfully completed and Barjon's guilty plea was vacated. Id., pp. 1-10.
The respondent's recitation of the facts in support of Barjon's guilty plea does not diverge in any significant way from the evidence presented to the jury in the petitioner's criminal trial. The prosecutor also indicated that at the time of Barjon's plea, Jean-Philippe had already pleaded guilty and received a sentence often years of incarceration, execution suspended after the service of five years. According to Barjon, he was forty-six years old at the time of his plea, had a Bachelors of Science degree in applied mathematics and engineering, and was then employed as a senior electrical technician.
Barjon was willing to plead guilty under the Alford doctrine but then indicated that he did not believe a jury would convict him, which is contrary to one of the important acknowledgements made with such a guilty plea. Barjon indicated that he was pleading guilty because he was at risk of losing his job and the plea would allow him to return to work unimpeded by his ongoing criminal matter. Id., p. 7. Additionally, Barjon indicated that he was pleading guilty to help the petitioner, who he had " put in trouble for not doing anything ..." Id., p. 8. Although Barjon had been willing to plead guilty to resolve his matter and assist the petitioner, his understanding of the plea agreement (e.g., a four-year sentence cap with the right to argue for less) appears to have assigned too much expected benefit to the right to argue for a sentence less than four years. Id. Barjon instead wanted to present witnesses in support of his defense to show that he and the petitioner never left the car and never went into the store. Id., pp. 8-9.
North Carolina v. Alford, supra . " Under North Carolina v. Alford ... a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless ..." State v. Wheatland, 93 Conn.App. 232, 234 n.1, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006).
After vacating Barjon's guilty plea, the following colloquy occurred between Judge Devlin, prosecutor Joseph Harry, Attorney Skyers, Barjon and the petitioner:
THE COURT: ... So I've called in Mr. Barjon and Mr. Tilus for trial. From the very first moment they came to our court they were jointly represented by--by yourself, Attorney Skyers. And now it looks like, as we had before, were [sic] unable to resolve the case on any kind of a plea negotiation. We have a Judge available. And these cases are going to start trial. But I--my understanding is that you believe there's some problem with your, at this point, your representation of both defendants?
ATTORNEY SKYERS: I--I
THE COURT: Well I don't know, maybe these further discussions has [sic] clarified that. I'm not sure. But if there is, this is the time to put on the record so we can address it directly.
ATTORNEY SKYERS: At the time--that's correct. At the time that Mr. Barjon and Mr. Tilus came by my office I indicated to both of them that potentially there could be a conflict for my representation of both. Do you agree with that, Mr. Barjon?
MR. BARJON: Yes, I did.
ATTORNEY SKYERS: And they persisted in their desire to have me represent them. And so what I represented was that in the event that there could not be a disposition without trial that at that point the conflict would have come to a real crux and that I was suggesting to Mr. Barjon that he would have to have his own counsel representing him, and he understood that? Is that not so?
MR. BARJON: Yes.
ATTORNEY SKYERS: And so coming here this morning to court opening up the session I indicated that likely that's where we were today, and that Mr. Barjon would probably have to get his own counsel unless we were able to dispose of this by plea.
THE COURT: See that's very unfair to the Court because the Court goes through a process where we talk about these cases, we work out the discovery, we make a proposal to settle the cases. Sometimes that works, sometimes it doesn't. But then the case moves to being a trial list. And I assume that all these issues about potential conflicts are--are resolved. I mean--and so to me this is highly inappropriate. So have you talked to any lawyers, Mr. Barjon, in anticipation
MR. BARJON: Yes.
ATTORNEY HARRY: Your Honor, at first Mr. Skyers statement indicates now in either side, we will be trying three individuals. The two that Mr. Skyers presently represents, and a third individual. Will it be a conflict, Mr. Skyers, if he's defending on one and now if Mr. Barjon decides to get another an attorney. With the information that Mr. Skyers knows regarding both individuals, will that present a conflict if Mr. Barjon comes in to testify for the State or if Tilus tries to call Barjon to say; hey, he wasn't involved and so forth?
THE COURT: I mean I guess we'd have to cross that bridge when we came to it. I think though that Mr. Barjon would have a Fifth Amendment right not to testify and therefore could assert and whoever represented him would probably advise him to do so before his case concluded. And I would think that he could choose to testify I guess, but he could not be compelled to testify against his interest. And I suspect that the lawyer would advise that, but maybe not. I mean he seems to be determined to assist Mr. Tilus, so that's a possibility that he might--might do that.
ATTORNEY HARRY: Just bringing it to your attention, Your Honor.
THE COURT: Right.
ATTORNEY HARRY: Because I don't want to get into a scenario now where Mr. Skyers is calling, you know, somebody he's been dealing with because of the both [sic] representations. Now we're in trial and he finds out there is a conflict because he had dealings with him under this guise of working with both individuals.
THE COURT: Well does--have you talked with Mr. TILUS about his concerns about your continued representation of him?
ATTORNEY SKYERS: I certainly did, Your Honor. And he's present, if you want him to come forward.
THE COURT: Yes, come forward Mr. Tilus.
ATTORNEY SKYERS: Mr. Tilus is present, Your Honor. And at the time that I was retained by Mr. Tilus, he's actually who came to me first, I advised him that I'd be happy to represent him. He--he indicated that Mr. Barjon wanted to speak to me. And in both of their presence I indicated that potentially this would be a conflict if I represented both of them, but they persisted and they agreed on my representation in the early stages of this case. Is that correct, Mr. Tilus?
MR. TILUS: Yes.
THE COURT: So if Attorney Skyers continues to represent you, Mr. Tilus, he's asking that he be basically taken off of Mr. Barjon's case, and Mr. Barjon get his own lawyer on the case, which would leave Mr. Skyers just representing you. Understand that so far?
MR. TILUS: Yes. To represent me.
THE COURT: But--correct. But it also means everything that Mr. Barjon said to Attorney Skyers is protected by what we call the attorney/client privilege. It's confidential information that a person can talk to the lawyer without fear of a lawyer using that information against a person, that's part of--we want people to talk to their lawyers, and we want them to have confidence that what is said is kept private between the client and the lawyer. Understand what I'm trying to get at there?
MR. TILUS: Yes.
THE COURT: What that means is that whatever information Mr. Skyers may have learned from Mr. Barjon, you know, he could not use that in a way that would hurt Mr. Barjon, he could not use that in a way that would, you know, make the case against Mr. Barjon easier to prove by the State. That information would have to stay confidential between Attorney Skyers and Mr. Barjon. And he could not use that or reveal that in representing you. Do you understand that?
MR. TILUS: Yeah, I understand that.
THE COURT: Okay.
MR. TILUS: But I'm [sic] spoke to me lawyer, Mr. Skyers, all the time me and him have a conversation this is separate case. He got arrested with me. And he got--(indiscernible)--with Barjon. So what he talked to Barjon I don't know. What I talked to him about I don't know.
THE COURT: Right. But what I'm saying is that what he talked to Barjon let's assume just say he heard--he knew something from Barjon that might help your case, I don't know that he did, but if he did, he couldn't use that. He has to keep his--he has to keep his information from Barjon separate and confidential and secret. So do you understand that?
MR. TILUS: Yes.
THE COURT: So in some ways--now I don't know what Mr. Barjon's going to do. I assume he's going to hire his own lawyer and whatever happens with that case, happens with that case. I'm more concerned with yours because I think I'm going to let Mr. Skyers out of Mr. Barjon's case. But with respect to you, do you still wish to have Mr. Skyers as your lawyer under those circumstances?
MR. TILUS: Yes.
THE COURT: Would you like to consult with another lawyer, a different lawyer about this, you know, before we go forward on your case?
MR. TILUS: No.
THE COURT: So you're okay with that?
MR. TILUS: Yes.
THE COURT: Okay. All right. And, Attorney Skyers, from your point of view have I correctly framed the issue as far as--is there more that should be put on the record here?
ATTORNEY SKYERS: Absolutely have, Your Honor. Yes.
THE COURT: Okay. All right. So as to Jean Barjon the motion of Attorney Skyers to withdraw is granted by the Court.Respondent's Exhibit A, pp. 11-18.
Jury selection in the petitioner's criminal case began either on or shortly after October 2, 2012. Attorney Skyers only began discussing the defense investigation with Joseph Marchio, then with JBM Private Investigations and Security, LLC, during jury selection . By October 4, 2012, six jurors had been selected and several alternates remained to be selected. Petitioner's Exhibit 1, p. 1. The alternate jurors were selected on October 4, 2012, and, after the court advised Attorney Skyers that he should be prepared to put on any defense witnesses at 10:00 a.m., October 17, 2012, the matter was continued to October 16, 2012, for the beginning of the criminal trial.
On October 10, 2012, less than one week before trial, Attorney Skyers hired JBM to investigate the petitioner's case. A memorandum prepared by Julio Ortiz, an investigator with JBM, details his investigative efforts from October 10 through October 18, 2012. Ortiz did not provide portions of the report while he was investigating, but provided the entire report to Attorney Skyers when it was completed on October 18. By then, it was too late. The state presented its case from October 16, 2012, into the next day, and then the defense witnesses were presented from October 17, 2012, into the next day. Both the state and the defense rested and presented their closing arguments by the afternoon of October 18, 2012, before Attorney Skyers ever saw Ortiz's report.
Attorney Skyers' focus for both the petitioner and Barjon was the pretrial phase, which included efforts to resolve both clients' criminal matters via plea agreements. That strategy evolved to having Barjon plead guilty and then testify for the petitioner in support of his defense. The strategy completely unraveled when Barjon's guilty plea was vacated, necessitating that he obtain substitute counsel, and resulting in him not testifying in support of the petitioner's defense. Although Attorney Skyers reviewed police reports, statements and other related documents, and obtained information from the petitioner and Barjon, including speaking with potential witnesses presented to him by the petitioner, there is no evidence that he conducted any other investigation prior to October 10, 2012.
Attorney Skyers testified that his typical practice with investigations to prepare for trial is case dependent and that there are some cases where he has waited to the onset of trial to begin his investigation. Attorney Skyers indicated that the short notice given when a case is called up for trial is a factor that impacts the timing of an investigation. Additional factors also mentioned by Attorney Skyers are the severity of the criminal case and the likelihood of the matter resolving with a plea agreement. In the petitioner's case, Attorney Skyers thought the investigation would be relatively simple. However, even though he thought it important to have the investigation completed before the defense presented its case, the investigative results were not received until after the defense rested and closing arguments had been given. The trial was essentially over aside from waiting for the jury to render its verdicts.
Because the petitioner and Barjon were in such similar positions and their defenses were essentially identical, Attorney Skyers never considered that an investigation might uncover information that was helpful to one client but not the other. He ignored this possibility despite the fact that the petitioner from the very beginning indicated no interest in resolving the matter by way of a plea agreement; instead, the petitioner intended to proceed to trial, which Attorney Skyers knew from the very beginning of his representation of the petitioner. Attorney Skyers nevertheless acted as if his primary duty was to attempt to resolve the criminal case via a plea agreement because he thought that was in the petitioner's best interest.
b.
" '[I]t is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution . . . As enunciated in [Strickland], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel.' (Internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677-78, 51 A.3d 948 (2012).
" To establish ineffective assistance of counsel under the Stickland standard, 'the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance . . . Because both prongs of Strickland must be demonstrated for the petitioner to prevail, failure to prove either prong is fatal to an ineffective assistance claim.' (Citations omitted; internal quotation marks omitted.) Hall v. Commissioner of Correction, 152 Conn.App. 601, 608, 99 A.3d 1200, cert. denied, 314 Conn. 950, 103 A.3d 979 (2014)." Taft v. Commissioner of Correction, 159 Conn.App. 537, 544-45, 124 A.3d 1 (2015).
The court notes that Taft involved a claim of ineffective assistance by Attorney Skyers for failure to properly investigate. The habeas court denied the claims and denied the petition for certification to appeal. The Appellate Court concluded that the claim of deficient performance as to the failure to investigate was a meritorious claim and, therefore, the habeas court abused its discretion in denying the petition for certification to appeal. However, the Appellate Court concluded that " the petitioner had failed to demonstrate that a debatable issue concerning prejudice exist[ed]." Taft v. Commissioner of Correction, supra, 159 Conn.App. at 539. The Appellate Court " agree[d] . . . that, under the circumstances of this case, Skyers sole reliance on the representations and opinions of [another attorney who represented a codefendant] regarding what evidence from [that codefendant's] trial would be important for the defense of [Taft] raise[d] a meritorious claim of deficient performance." Id., 548. " Simply put, the petitioner [was] entitled to counsel who has not abdicated to another his or her duty to make an informed and independent assessment of the importance of evidence to the client's case." Id., 548-49.
" Inadequate pretrial investigation can amount to deficient performance, satisfying prong one of Strickland, as '[c]onstitutionally adequate assistance of counsel includes competent pretrial investigation.' Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981). Although [courts] acknowledge that 'counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it'; (internal quotation marks omitted) Gaines v. Commissioner of Correction, supra, 306 Conn. at 683, 51 A.3d 948; '[e]ffective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case.' (Internal quotation marks omitted.) Id., at 680, 51 A.3d 948. 'In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" (Internal quotation marks omitted.) Id.
c.
Applying the foregoing standards to the petitioner's claim that Attorney Skyers was deficient for failing to timely and adequately investigate the petitioner's matter, the court concludes that Attorney Skyers was deficient. The petitioner from the onset of the matter proclaimed his innocence and that he wanted to proceed to trial. Although the petitioner's proclamation could nevertheless have ultimately resulted in him pleading guilty, a reasonably competent criminal defense attorney would have conducted an investigation into the defense well before trial. The benefits of such an investigation could have been used in attorney/client discussions, plea negotiations and trial preparation. An earlier investigation may also have disclosed information showing that the petitioner's and Barjon's defenses were not as aligned as initially thought. The same duty that Attorney Skyers felt obligated him to pursue plea negotiations, in spite of the fact that the petitioner did not want to resolve his case in that manner, should also have compelled an investigation at much earlier stages in his representation. This court discerns no reasonable strategic reason for the delayed investigation and sees no reasonable decision that made the investigation unnecessary. Consequently, the court finds that the petitioner has satisfied the first Strickland prong.
Having satisfied the performance prong is not enough to prevail on a claim of ineffective assistance of counsel, for the petitioner must also show that counsel's deficient performance prejudiced him. The petitioner identifies as prejudice that Attorney Skyers did not present testimony from Margarita Azcalt and his decision to present damaging testimony from Jean-Philippe.
Margarita Azcalt witnessed events from inside the laundromat near the scene of the robbery. Investigator Ortiz met with Azcalt on October 18, 2012, and she provided a verbal statement to him. According to Azcalt, she was working in the laundromat and monitoring the surveillance camera. Azcalt told Ortiz that she " notic[ed] Adolph [sic] walking on the sidewalk apparently walking towards the dumpster with a trash bag. That it was then that [Aldof] ran into the laundry mat [sic] and held the door shut preventing a single black male access. That [Aldof] requested that she called [sic] police because he was being robbed. Ms. Azcalt further stated that she had only observed one black male attempting to gain entry into the laundry mat [sic] and didn't noticed [sic] a weapon." Petitioner's Exhibit 6, p. 2. Ms. Azcalt did not testify at the habeas corpus proceeding. Thus, the only evidence of what she might have testified to is contained in investigator Ortiz's summary.
At the habeas trial, Attorney Skyers testified that although he did not get the investigative report until the criminal trial essentially was over, he had many conversations with Ortiz and Marchio about the investigation as it was being conducted. However, as detailed in the investigative report, Ortiz did not speak with Azcalt until approximately 7 p.m., October 18, 2012, when the jury already had begun deliberations. Attorney Skyers indicated that Azcalt's statement, should she testify similarly at trial, was potentially helpful. Of concern to Attorney Skyers was that Azcalt's statement to the police indicated that she had seen three men outside the laundromat, which conflicted with the defense's position that the petitioner and Barjon had remained in the car. The state did not present Azcalt's testimony during the criminal trial and Attorney Skyers' strategy to also not call her was based on not presenting testimony that conflicted with the defense theory that the petitioner and Barjon never left the car.
Azcalt's statement to the police was not entered into evidence during the habeas trial. Attorney Skyers referenced her statement in his testimony. Officer Santora testified in the habeas trial that Azcalt gave a statement to the police.
It is not entirely clear how reasonable it was to maintain this defense strategy after Barjon's guilty plea was vacated and he and the petitioner were no longer symmetrically aligned in their defenses.
Additionally, Azcalt's statement to Ortiz is not inconsistent with the events as testified to by others such as Aldof, who testified that he fled to the laundromat, entered and held the door shut and prevented one man from coming into the laundromat. Respondent's Exhibit B, pp. 29-30. Aldof never testified that the four men in the store followed him when he escaped to the laundromat. Similarly, Officer Santora testified that only one man was fleeing on foot from Aldof when she arrived on the scene. Thus, Azcalt's statement, even if introduced at trial, would not have in anyway undermined Aldof's testimony of what happened in the store, where Azcalt never was. For these reasons, the court concludes that the petitioner has failed to show how he was prejudiced by Attorney Skyers not calling Azcalt as a defense witness. Gaines v. Commissioner of Correction, supra, 306 Conn. 681-82.
As to Attorney Skyers being deficient for calling Jean-Philippe as a defense witness at trial, Ortiz's report shows that on October 12, 2012, Attorney Skyers was obtaining authorization to interview Jean-Philippe. Petitioner's Exhibit 6, p. 1. Ortiz met with Jean-Philippe on October 15, 2012, at which time Jean-Philippe provided a written statement. Petitioner's Exhibit 7. The statement details Jean-Philippe entering the store on his own, unarmed, to collect money he said he won on a bet. Jean-Philippe testified as a defense witness several days later on October 17, 2012, where he testified that he got out of the car and alone went into the store to collect his winnings while the petitioner remained in the car. Respondent's Exhibit C, pp. 93-97, 121-22.
This court has reviewed the criminal trial testimony of Jean-Philippe and, while it clearly did not assist the defense much, the petitioner significantly exaggerates the harm his testimony did. The most damaging aspect of Jean-Philippe's testimony was that he and the weapon recovered by the police were both connected to New Jersey. The jury clearly credited Aldof's testimony that four men entered his store, as well as his identification of the petitioner as one of the individuals who robbed him, over Jean-Philippe's testimony that he went into the store alone while the other three remained in the car. Completely disregarding Jean-Philippe's testimony does not undermine this court's confidence in the outcome of the criminal trial. The court concludes, therefore, that the petitioner has failed to show how he was prejudiced by Jean-Philippe testifying as a result of the untimely investigation conducted by Attorney Skyers. Similarly, the court also concludes that the petitioner has failed to show that Attorney Skyers rendered deficient performance by presenting Jean-Philippe's testimony because he knew, or should have known, it would be damaging to the petitioner's defense.
2. Failure to Present Evidence Re Firearm/(33)(E)
The petitioner's next claim of deficient performance alleges that Attorney Skyers failed to present evidence that a firearm recovered near the location of the robbery was not connected to the petitioner and his codefendants. The petitioner's post-trial brief argues that " [t]he firearm was located near where Jean-Philippe was initially detained by Officer Santora. The prosecuting authority alleged that Jean-Philippe had used that firearm during the robbery and discarded it prior to being detained. Reasonably competent counsel would have challenged that allegation." Brief, p. 17.
The evidence in the criminal case linking the petitioner to the robbery was the testimony presented by Aldof, who identified the petitioner as one of the four men who entered the store, and that one of them pulled out a gun and asked for money. Respondent's Exhibit B, pp. 26-27. Additionally, Ramon Tavares testified that he was robbed at gunpoint by an individual he had never seen, although he knew the petitioner as being a prior customer. Id., pp. 114-15. Although Officer Santora did not observe Jean-Philippe drop a firearm in spite of the fact that she was striving to closely observe his actions while she pursued him, the firearm was found where Officer Santora detained Jean-Philippe. The petitioner faults Attorney Skyers for not presenting evidence through Officer Santora that showed Jean-Philippe could not have discarded, and could not have been the source of, the firearm.
Officer Santora's criminal trial testimony indicates that she arrived on the scene, looked around and saw a male (Aldof) on the sidewalk. Aldof was waiving his arms and screaming for help, pointing to a man walking down the street who had just robbed him with. Aldof also told Officer Santora that the man had a gun. The suspect (i.e., Jean-Philippe) started to walk fast and then ran around a corner. Officer Santora, who was still in her police cruiser, kept Jean-Philippe in her sight and followed him in her cruiser until Jean-Philippe stopped near some garbage/trashcans. Officer Santora then stopped the cruiser close by, exited the vehicle and ordered Jean-Philippe to not move. Respondent's Exhibit C, pp. 16-20, 24, 29. The weapon was found where Jean-Philippe had been standing by the garbage/trashcans. Officer Santora testified at the habeas trial that she kept Jean-Philippe in her sight the entire time she followed him.
While Officer Santora kept Jean-Philippe in her sight, that is she never lost sight of him, there is no evidence in either the criminal or the habeas trial that she observed Jean-Philippe in the detail maintained by the petitioner. Factors such as distance and driving the police cruiser impacted precisely how well Officer Santora could see what Jean-Philippe was doing. Also, Jean-Philippe's body position and angle could have prevented her from seeing him discard the weapon as she was bring the police cruiser to a stop and then exiting it so she could apprehend Jean-Philippe.
In addition, the petitioner presented no evidence at the habeas trial to otherwise explain how the gun came to be found so close to Jean-Philippe. Thus, his entire claim rests on Officer Santora not being asked if she saw Jean-Philippe discard anything. For the reasons set forth above, the court concludes that the petitioner has failed to show how Attorney Skyers was deficient for failing to present such testimony through Officer Santora, or that any such failure prejudiced him.
3. Failure to Present Evidence Re Amount of Money/(33)(F)
The last remaining claim of deficient performance by Attorney Skyers avers that he failed to present evidence that the amount of money recovered from the petitioner and his codefendants was inconsistent with the amount of money alleged to have been taken during the robbery. This claim centers on the varying amounts of money that were testified to by witnesses and the cash seized by the police. According to the petitioner, Ramon Tavares testified in the criminal trial that $1,500.00 was taken during the robbery. The police only seized $653.00 from Jean-Philippe. The petitioner faults Attorney Skyers for failing to present evidence that only $653.00 was seized.
A review of the criminal trial transcripts shows that Tavares, the cashier in the store, on direct examination testified that the individual who at gunpoint demanded money from him took the store's money (" about $700 and something") as well as all the money Tavares had in his wallet. Respondent's Exhibit B, p. 113. The total from both was close to $1,000.00. Id. On cross-examination, however, Attorney Skyers questioned Tavares further about the amounts of money that were stolen. Attorney Skyers asked Tavares about telling the police that about $1,500.00 was taken. Tavares then acknowledged that the amount was closer to $1,500.00 and not $1,000.00, and, after a clarifying question from Judge Kavanewsky, indicated that on the day of the robbery he had about $700.00 or $800.00 in his wallet because he was wanted to buy a little car. Id., pp. 124-25. However, Tavares also stated that the store's money had not been counted that evening before the robbery occurred. Id., p. 124. Aldof testified that he did not know exactly how much was taken from the cashier, but he thought it was between $600.00 and $700.00. Id., p. 38. At the habeas trial Officer Martin testified that $653.00 was seized from one individual, namely Jean-Philippe.
The petitioner claims that had Attorney Skyers elicited information from a law enforcement official that the amount seized was considerably less than what Tavares testified to, it would have impacted the outcome of the criminal trial. The court is not persuaded. While Attorney Skyers did not present evidence about how much money was seized by the police, the jury was aware of the varying amounts testified to by Tavares and Aldof. Significant, too, is that Jean-Philippe offered no explanation as to why he had nearly $700.00 in cash on him or what the source of that money was. Nor was any evidence presented to this court that Jean-Philippe could have offered such testimony that would have assisted the petitioner. The petitioner's claim that the differences in the amounts reported stolen and actually seized would have affected the outcome of his trial is, at best, speculative. Therefore, this last basis for ineffective assistance also fails.
4. Cumulative Prejudice
The petitioner's post-trial brief argues that this court should view the claimed prejudice cumulatively. The petitioner cites to a relatively recent habeas court decision presently on appeal. Skakel v. Warden, judicial district of Tolland, Docket No. CV 10-4003762-S, (October 23, 2013) (S.C. Docket No. 19251). The court notes that while the habeas court in Skakel aggregated multiple instances of what it had determined was constitutionally deficient performance, appellate precedent in Connecticut does not support aggregation. See, e.g., State v. Robinson, 227 Conn. 711, 746-47, 631 A.2d 288 (1993); Anderson v. Commissioner of Correction, 114 Conn.App. 778, 795, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009). Furthermore, this court has concluded that the petitioner has failed to prove his claims, so aggregation is inapplicable even if case law in Connecticut supported aggregation.
CONCLUSION
The claims in counts one and two are denied, as is the petition for a writ of habeas corpus. Judgment shall enter for the respondent. Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.