Opinion
CV144005885
07-25-2016
David Weaving (#161065) v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, David Weaving, seeks habeas corpus relief from a sentence of ten years imprisonment, execution suspended after the service of eight years, and three year's probation imposed, after a jury trial, for the crime of manslaughter second degree. The Appellate Court affirmed the judgment of conviction, State v. Weaving, 125 Conn.App. 41, 6 A.3d 203 (2010); cert. denied, 299 Conn. 929, 12 A.3d 569 (2011). Also, the petitioner filed a previous habeas corpus action that was denied, Weaving v. Warden, Superior Court, Tolland J.D., d.n. 09-4003183, (October 2, 2012), Newson, J.
The petitioner now contends that both his trial counsel, Attorney Cheryl Heffernan, and his earlier habeas counsel, Attorney Andrew Cates, provided ineffective assistance. Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. Daeira v. Commissioner, 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id. Thus, the failure of the petitioner to establish, by a preponderance of the evidence, either the allegations against trial counsel or habeas counsel or the requisite prejudice as to both the first habeas case and the criminal trial will defeat a claim for habeas corpus relief in the present action.
Also, in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a second habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel, Id., at 835. However, the petitioner's burden becomes a two-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged, Id., at 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective, Id., (emphasis added). Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the first habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different, Id., at 842-43. The Supreme court described this double-layered obligation as " a herculean task" Id., at 843.
Because both counts of the amended petition require that the petitioner prove, by a preponderance of the evidence, that Attorney Heffernan represented the petitioner deficiently at his criminal trial, the court addresses that allegation directly. The sole specification of ineffectiveness asserted at trial is that Attorney Heffernan failed to retain and present the testimony of a defense, accident reconstruction expert at his criminal trial.
The Appellate Court recounted the relevant trial evidence supporting the jury's verdict as follows:
The jury reasonably could have found the following facts. Shortly before 7:00 p.m. on April 27, 2007, the defendant was driving his motor vehicle south on Route 69 in Prospect. In Prospect, Route 69 is a residential, two-lane road, with one northbound and one southbound lane of travel. Although it was a foggy evening and the road surface was damp, the defendant was traveling at approximately eighty miles per hour, well in excess of the posted speed limit of forty-five miles per hour. As he crested a small hill near Radio Tower Road, the defendant came upon another car traveling in his lane at or below the posted speed limit. Approaching a permitted passing zone, the defendant accelerated and began to cross over into the northbound lane in order to pass the slower moving vehicle. Just as he was doing so, the defendant noticed a young boy standing on the pedals of a bicycle near the center of the northbound lane. The boy was dressed in dark clothing, the bicycle he was riding was black and there was no headlamp on the bicycle. The defendant immediately applied his brakes and attempted to steer back into the southbound lane in an effort to avoid hitting the boy. The defendant's speed, however, coupled with the conditions of the roadway, made avoiding the boy impossible. The defendant's vehicle collided with the bicycle, throwing the boy onto the hood and windshield and tossing debris along the side of the road. Despite the efforts of emergency medical personnel and physicians, the boy died from his injuries. State v. Weaving, supra, 43.
That court also accurately summarized the main factual controversy litigated at that trial:
At trial, a central tenet of the defense was that the defendant was traveling at or near the posted speed limit of forty-five miles per hour as he entered the northbound lane to pass the slower moving vehicle in front of him. Both parties presented expert testimony as to the defendant's speed moments before the collision, focusing particularly on the time when the defendant first applied his brakes. The state's expert, a specialist in accident reconstruction, testified that, according to his forensic and mathematical analyses, the defendant was traveling at a minimal speed of eighty-three miles per hour. This determination was based primarily on the length of skid marks caused by the defendant's sudden braking, which measured over 360 feet, but also took account of the condition of the roadway at the time of the accident. The defense offered the expert testimony of a behavioral psychologist trained in principles of human reaction and response time. During recross examination, the defense expert conceded that the length of the skid marks was consistent with a finding that the defendant was traveling eighty-three miles per hour at the moment when he began braking. Id., 44-45.
As alleged, Attorney Heffernan never called an accident reconstrictionist to testify for the defense. She relied solely on the expertise of a human factors specialist with respect to whether the sudden presence of the bicyclist in the northbound lane of Route 69 was perceptible to a motorist attempting to pass another vehicle heading southbound. The defense expert, Edward P. McGuire, opined that even if a motorist, with normal reactions, drove at the posted speed limit of forty-five miles per hour, on a dry road, the collision was unavoidable.
The petitioner contends that Attorney Heffernan ought to have also presented the testimony of an accident reconstruction expert to refute the state's evidence that the petitioner drove his car at around eighty-three miles per hour when attempting to pass a vehicle to his front. At the present habeas trial, the petitioner offered the testimony of Kent Boots, a knowledgeable and experienced accident reconstructionist, who estimated that, based on certain assumptions, the petitioner operated at a speed just above the limit.
However, the dispositive flaw in the petitioner's accusation of legal incompetence by Attorney Heffernan is that she did, in fact, consult with an experienced and well-regarded accident reconstructionist, Dick Hermance, a person whom her law firm had utilized in other cases. Hermance reviewed the pertinent materials concerning the fatal accident and concluded that the state's expert opinion as to the petitioner's speed of about eighty-three miles per hour was correct. Based on that unfavorable conclusion, Attorney Heffernan chose to rely exclusively on the expert testimony of McGuire that the collision was inevitable even if the petitioner was traveling at the speed limit; i.e., speed did not contribute to causing the fatality.
The petitioner presented no criminal defense expert who criticized Attorney Heffernan's decision. The court is unaware of any professional obligation of defense counsel to keep consulting with different experts until one can be found whose opinions comport with those desired by the defense. To the contrary, our Appellate Court has stated that a " trial attorney is entitled to rely reasonably on the opinion of an expert witness, " Stephen S. v. Commissioner, 134 Conn.App. 801, 805, 40 A.3d 796 (2012); cert. denied, 304 Conn. 932, 43 A.3d 660 (2012). Defense counsel " is not required to continue searching for a different expert." Id.
Attorney Heffernan sought advice from an appropriate source. She acted reasonably in relying on that advice, especially because Hermance's opinions matched those of the state's accident reconstructionist. Her approach of utilizing, instead, the human factor specialist appears to this court to have been professionally sound and resourceful and even a bit ingenious. Certainly, this tactic met or exceeded the skill possessed by ordinarily competent defense lawyers. Consequently, the court determines that the petitioner has failed to satisfy his burden of proving, by a preponderance of the evidence, that Attorney Heffernan's representation fell below that constitutionally mandated under the Strickland standard.
The amended petition is, therefore, denied as to both counts.