Opinion
No. CV04-0004441
December 15, 2006
Memorandum of Decision
The petitioner, Anderson Vazquez, inmate #249242, alleges in his petition for a Writ of Habeas Corpus initially filed on March 23, 2004 and amended for the final time on December 7, 2005, that his conviction of Robbery in the First Degree and resultant sentence was defective under both the United States Constitution and the Constitution of the State of Connecticut and that as a result he is entitled to have his convictions and sentence set aside.
This habeas petition came on for trial before the Court on November 27, 2006. The Court received testimony from the petitioner, his girlfriend, Michele Rosado, and Attorney Thomas Farver testifying as an expert witness. In addition, the Court received the transcripts of the trial testimony, a police report dated September 2, 2002, two photographs of the porch of the house in which the petitioner used to live, the appellate decision in the petitioner's criminal case and three letters.
The petitioner's trial defense Counsel was Attorney David Abbamonte. Apparently Mr. Abbamonte passed away unexpectedly near the last week of January 2006 so was obviously unavailable to testify at the habeas trial. This unfortunate event, in and of itself, plays no part in the Court's findings, but had the Court had the benefit of his testimony, it is possible the result of this trial might have been different.
It should not be necessary for this Court to comment upon the methodology used for the findings of fact, however, it is important to keep this in mind when considering the resolution of this petition. First and foremost, any fact finder, whether it be the judge in a bench trial or the jury is limited to using only the evidence lawfully placed before it. It is improper in resolving issues of fact to consider matters that are outside the record of trial, engage in speculation, or supposition. While "truth" should be a concrete concept, when deciding what facts are true for the purposes of resolving a petition, the Court is limited to considering only the properly admitted evidence before it in finding that truth. Consequently, it must be reiterated that the following findings of fact are derived from the evidence adduced at the habeas trial.
Findings of Fact 1. The petitioner was a defendant in a criminal case proceeding in the Judicial District of Fairfield at Bridgeport under Docket No. CR02-182392 in which he was charged with committing the crime of robbery in the first degree in violation of CGS § 53a-134(a)(4). 2. On January 28, 2003, the jury returned its verdict of guilty as to this count.3. In its decision, the Appellate Court found that a jury could reasonably have concluded that the following facts were true. "On the evening of September 2, 2002, the defendant placed a telephone call from his home to Pizza Valley restaurant. He ordered a large pepperoni pizza and a two-liter bottle of soda, and he directed the delivery to 761 Grand Street in Bridgeport. He purported to give his telephone number to the restaurant. It later was discovered that the number did not correspond to the number that registered on the restaurant's caller identification box. The staff at the restaurant recorded the order, the delivery address, the telephone number given and the cost of the order on the front of the pizza box. The victim, Radesh Kanniganti, drove to the address indicated on the front of the box to deliver the order. He sounded his vehicle's horn at the designated address and then saw someone, whom he later identified as the defendant, approach him from the alley between 761 and 775 Grand Street. The victim left his car, holding the pizza box and the soda bottle. He tried to hand the defendant the soda bottle, but the defendant grabbed at the pizza box instead. A tussle for the pizza box ensued, and the victim fell to the ground, the defendant having gained possession of the pizza box. The defendant then demanded money from the victim, and the victim noticed that the defendant was pointing a small black gun at him. The victim gave the defendant the $55 in his pocket, and the defendant ran back into the alley. The victim returned to his car and sounded the horn several times. He then returned to the restaurant where he told his employer to call the police because he had been robbed.
State v. Vasquez, 87 Conn.App. 792 (2005), cert. denied, 273 Conn. 934 (2005).
4. "The police arrived at the restaurant shortly thereafter and recovered the defendant's telephone number from the caller identification box. The box identified the defendant as the person to whom the number was registered with the telephone company. The police escorted the victim to the police station to make an identification from a computerized array of photographs. They also broadcast a description of the perpetrator over the police radio. The victim, after looking through numerous photographs, identified the defendant as the perpetrator. The police then drove the victim by the defendant's home, where the defendant was being escorted outside by police officers, and the victim again identified the defendant as the perpetrator. Prior to that identification, police had obtained the consent of the defendant's girlfriend to search for a gun in the apartment in which the couple lived. During the search, the police saw the defendant halfway hidden under a bed and seized $55 in cash lying on a dresser near the defendant. The defendant's girlfriend then withdrew her consent, and the police ceased the search of the apartment's interior. The police conducted a search of the backyard and uncovered a Pizza Valley pizza box with two slices of fresh pizza inside. The receipt on the box indicated that it was the stolen pizza box."
5. Thereafter, the Court, Owens, J. sentenced the petitioner to a total effective sentence of eighteen years to serve.
6. Throughout the trial, the petitioner was represented by Attorney David Abbamonte, an assistant public defender in and for the Judicial District of Fairfield. The state was represented by assistant state's attorney Joseph Corradino.
7. The petitioner's trial defense counsel did not call any witnesses and presented no defense. Consequently, the following witnesses did not testify at the petitioner's trial: Ms. Michelle Rosado, Ms. Cynthia Frazier and Ms. Carol Frazier. In addition, the petitioner did not testify at his criminal trial.
8. The petitioner testified at the habeas trial and indicated that he was asleep in his apartment with his girlfriend, Ms. Rosado, at the time of the robbery. Ms. Rosado also testified at the habeas trial that the petitioner was asleep with her in the apartment at the time that the robbery occurred. While neither of the Fraziers testified at the habeas trial, letters purported to be from them were admitted into evidence without objection. The content of these letters does tend to corroborate the testimony of the petitioner and his girlfriend on this key point.
9. The petitioner also testified that the bed in which he was lying when the police entered the apartment was constructed such that it would have been impossible for anyone to crawl under the bed since the wood went all the way down to the floor.
10. There was no evidence introduced at the habeas trial that would tend to undermine the credibility of the testimony provided by Ms. Rosado or the petitioner.
11. Additional facts will be discussed, as necessary, in subsequent portions of this decision. CT Page 23055
Discussion
The petitioner now comes before this Court seeking to have this court set aside his conviction of guilty to the charge of robbery in the first degree in violation of CGS § 53a-134(a)(4), and order that his case be returned to the docket for a new trial. It is important to understand that this instant proceeding is an action seeking the issuance of a writ of habeas corpus. This case having been tried and appealed to the Connecticut Appellate Court is now in the "court of last resort." A petition for a writ of habeas corpus is, therefore, an application for extraordinary judicial relief in which, contrary to the criminal trial court, the burden rests with the petitioner.In this case, there is little doubt that a robbery took place. The key question, then was, who was the perpetrator of this crime. Given that the police did not recover the gun used in the robbery, the case hinged upon the identification of the petitioner as the perpetrator by the victim. The petitioner was in possession of a viable alibi that could be presented to the jury through his own testimony and the testimony of his girlfriend. The petitioner has alleged that his trial defense counsel was ineffective in the manner in which he represented the petitioner at trial because he failed to present this important testimony. This Court agrees.
At the outset, one must understand that there is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though our courts have recognized that "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving entitlement to the grant of a writ rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is innocent, but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra, at 422.
The writ of habeas corpus is an ancient and time-honored component of our Anglo-American jurisprudence. "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: `the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is `a writ antecedent to statute, and throwing its root deep into the genius of our common law. . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. Fay v. Noia, 372 U.S. 391 at 399 (1963). When the United States achieved independence from England, the writ was embodied in our law as well. "Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, 20, § 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a `great constitutional privilege.' Ex parte Bollman and Swartwont, 4 Cranch 75, 95." Fay v. Noia, infra at 400 (1963).
Edward I reigned in England in the late 13th century A.D.
Issuance of a writ of habeas corpus is a remedy whose "most basic traditions and purposes are to avoid the grievous wrong of holding a person in custody in violation of the federal constitution and thereby protect individuals from unconstitutional convictions and help guarantee the integrity of the criminal process by ensuring that trials are fundamentally fair." O'Neal v. McAnnich, 513 U.S. 432 at 442 (1995). Moreover, when a court reviews a petition for habeas corpus, "it must decide whether the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722 at 730 (1991). So, the writ of habeas corpus "has been for centuries esteemed the best and only sufficient defense of personal freedom." Lonchar v. Thomas, 517 U.S. 314 (1996).
Ineffective Assistance of Trial Defense Counsel
A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. Moreover, all criminal defendants are entitled to the representation of counsel. The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense." The sixth amendment right of confrontation and right to counsel is made applicable to the states through the due process clause of the fourteenth amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct 792, 9 L.Ed.2d 799 (1963), respectively. The Sixth amendment right to counsel is the right to an effective counsel.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
It is not, and never has been, for the trial defense counsel to make the decisions that a client must make. The defendant decides how to plead, whether to testify, whether to waive the right to trial by jury, etc. Nevertheless, effective representation is crucial. "Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721 (2002). Consequently, an attorney who fails to offer his or her client proper counsel at critical junctures in the trial may well be providing ineffective representation.
Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d (1984) before the Court can grant relief. Specifically, the petitioner must first 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." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
As already noted, a criminal defendant is entitled to the representation of trained and competent legal counsel. Notwithstanding, "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1984)." Yarborough v. Gentry, 540 U.S. (October 20, 2003). This court sincerely doubts that any defense attorney has ever conducted the perfect criminal trial.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commisioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000). Here, the uncontroverted evidence at the habeas trial establishes that the petitioner had a viable (albeit something less than airtight) alibi defense to this charge.
The alibi would have to be established by the testimony of the petitioner and his girlfriend. It is true that had they testified, the prosecution could have asked the jury to consider the obvious interests in the outcome of the trial that both of these witnesses would have. Notwithstanding, there has been no evidence presented to this habeas court to conclude that the testimony of whether the petitioner or his girlfriend was, in any other way, impeachable.
At this point, the court needs to comment upon the credibility of the petitioner and his girlfriend. In brief, aside from the obvious interest in the outcome of the criminal case that both possessed, there has been no evidence presented to undermine the credibility of either witness. There is no evidence of criminal records, inconsistent statements, prior convictions for perjury or crimes of moral turpitude, no inconsistencies in their testimony before the court, etc. Both the petitioner and his girlfriend came before this Court and swore an oath before God to tell the truth in their testimony. There has been no reason provided to this Court to conclude that that these two witnesses did anything other than live up to the demands of that oath. Given the state of the evidence, this Court has no choice, then, but to conclude that their testimony was credible and worthy of belief. Consequently, based upon the evidence presented to the habeas Court, it was deficient performance on the part of the trial defense counsel not to present this testimony, establishing an alibi for the petitioner, at the petitioner's original trial. The first prong of the Strickland test has been established.
In regard to prejudice, the petitioner 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." Strickland, infra at 694. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 447, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-64. Summerville v. Warden, 229 Conn. 397 at 419 (1994). Given the significance of this potential alibi testimony and its propensity to induce reasonable doubt in the minds of the jury, this court finds that the reliability of the petitioner's conviction has, indeed, been undermined.
This Court is aware of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, supra. Furthermore, this Court understands that there is a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
This is a case in which the trial defense counsel clearly should have called these missing witnesses in order to establish an alibi defense that may well have led a jury to find reasonable doubt as to the petitioner's guilt. The jury were entitled to hear this testimony before they made the finding of guilty. They did not because of the ineffective representation of the petitioner by his trial defense counsel. Had they heard this evidence, rejected the alibi defense, and then returned a guilty verdict, that verdict would have been unassailable. As it stands now, there is clearly sufficient reason to doubt the reliability of the actual verdict, based as it is upon incomplete evidence. This petition shall be granted.
The Petition for a Writ of Habeas Corpus is granted, the verdict shall be set aside and the petitioner granted a new trial in the criminal court. In accordance with P.B. § 61-11(a), "proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired."