Opinion
CV164007862
01-08-2020
Solomon White (Inmate #240391) v. Commissioner of Corrections
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Newson, John M., J.
MEMORANDUM OF DECISION
Hon. John M. Newson
I. Procedural History
The petitioner was the defendant in a matter pending in the Judicial District of Hartford under docket no. CR05-0594405, where he was charged with Murder, in violation of General Statutes § 53a-54a, Criminal Use of a Firearm, in violation of General Statutes § 53a-216(a), Tampering with a Witness, in violation of General Statutes § 53a-151(a), Conspiracy to Commit Tampering with a Witness, in violation of General Statutes § § 53a-48 and 53a-151(a), Bribery of a Witness, in violation of General Statutes § 53a-149(a), and Conspiracy to Commit Bribery of a Witness, in violation of General Statutes § § 53a-48 and 53a-149(a). Attorney William O’Connor of the Office of the Public Defender represented the petitioner at the trial level at all times relevant to the claims in this petition. The petitioner elected for a jury trial, which commenced on or about September 5, 2007. Based on the evidence presented, the jury could reasonably have found the following facts as proven beyond a reasonable doubt:
On Saturday, August 27, 2005, a local church sponsored a "Stop the Violence" block party on Vine Street in Hartford. Both the defendant and Keith Carter, the victim, attended the block party, where they argued. After the block party, several people went to an apartment building located at 46-48 Vine Street. The defendant lived in an apartment on the first floor of 46-48 Vine Street with his girlfriend, Latasha Drummond.
Shortly after 9:15 p.m. that evening, several people were gathered in the common hallway on the first floor of 46-48 Vine Street. Drummond was in the apartment she shared with the defendant.
Drummond heard someone tell the victim to "get out of [the defendant’s] face." A neighbor, Dela Tindal, was in her apartment located across the hall from the apartment shared by the defendant and Drummond. Tindal heard the defendant and the victim arguing in the hallway. Tindal then heard the defendant say, "are you still talkin’ shit? Don’t make me go get my pistol," and then Tindal heard the defendant’s apartment door open and close. Shortly thereafter, Tindal heard the defendant say: "You still talking shit." Tindal then looked out of her apartment and saw the two men arguing, standing face to face. Tindal then saw the defendant extend his hand and shoot the victim. Tindal could see sparks coming from the barrel of the gun, and the sound was "like a ... loud firecracker." Upon hearing the gunshot, Drummond looked out into the hallway where she saw the victim fall to the floor and the defendant with a gun in his hand. The defendant then ran out of the building. Drummond went back inside her apartment to get her keys and then ran out of the building.
Outside of the building, Drummond encountered her neighbor, Courtney Croome. Drummond was crying and shaking and told Croome, "He killed him. He killed him."
Following the incident, Drummond visited the defendant at an abandoned apartment where he was hiding from the police. Drummond saw the defendant wrap the gun he had used to shoot the victim in a diaper and throw it in the trash, claiming that the police could not charge him if they did not have the murder weapon. Drummond described the weapon as a "black, old, rusty gun."
The defendant was located and arrested approximately one month following the incident. While in prison, the defendant wrote three letters to Tindal, asking that she not appear at his probable cause hearing, that she lie to the police and that she ask others to lie for him.State v. White, 127 Conn.App. 846, 847-49, 17 A.3d 72, 73-74 (2011), cert. denied, 302 Conn. 911, 27 A.3d 371 (2011). The petitioner was convicted of all charges and sentenced to a total effective term of sixty (60) years on December 13, 2007. The petitioner took an appeal, but his convictions were affirmed. Id. The petitioner then sought to collaterally attack his convictions by filing a habeas corpus petition alleging ineffective assistance against Attorney O’Connor. Attorney Joseph Visone, assigned counsel by the Office of the Public Defender, represented him throughout the habeas proceedings. The petition was denied following a trial on the merits. White v. Warden State Prison, Superior Court judicial district of Tolland, Docket No. CV12-4004918 (Sferrazza, J., Aug. 29, 2012), appeal dismissed, 168 Conn.App. 093, 149 A.3d 503 (2016), cert. denied, 325 Conn. 924, 160 A.3d 1067 (2017).
The petitioner commenced the present action on February 19, 2016. The July 12, 2018, Amended Petition for Writ of Habeas Corpus alleges that Attorney Joseph Visone provided ineffective assistance of counsel in representing the petitioner during his prior habeas proceedings. The petitioner also claims that the State violated his due process rights during the criminal trial by using perjured testimony from Latasha Drummond. The respondent filed a timely reply, and raised the defense of procedural default to the petitioner’s claim involving the allegedly perjured testimony of Latasha Drummond, because the petitioner failed to raise that claim at trial or on appeal. The matter was tried on various dates between November 14, 2018, and September 23, 2019. Additional procedural and factual background will be provided as necessary throughout the remainder of this decision.
II. Law and Discussion
"The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id., 689. "Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. [The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 690.
Under the second prong of the test, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 691. "[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id., 693. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 694. "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification, ’ and the like." Id., 695. The court "must consider the totality of the evidence before the judge or jury." Id. "In its analysis, a reviewing court may look to the performance [1st prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011). In order to succeed in a claim of ineffective assistance against habeas counsel, the petitioner must prove both prongs of Strickland against trial and habeas counsel. (Citations omitted; internal quotation marks omitted.) Lozada v. Warden, 223 Conn. 834, 842-44, 613 A.2d 818 (1992).
The petitioner first claims that Attorney Visone was ineffective for failing to secure the testimony of Dela Tindal (a.k.a. "Nay-Nay") at the previous habeas trial in support of a claim that she provided perjured testimony at the petitioner’s probable cause hearing and trial. The petitioner failed to present Dela Tindal as a witness before the habeas court, so this claim fails as a matter of law. Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, 1208, cert. denied, 258 Conn. 943, 786 Conn. 428 (2001) ("The failure of the petitioner to offer evidence as to what [a witness] would have testified is fatal to his claim."), citing, Nieves v. Commissioner of Correction, 51 Conn.App. 615, 623, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).
The defendant also claims that Attorney Visone was ineffective for failing to call Latasha Drummond as a witness and to establish that her testimony at the petitioner’s criminal trial was perjured. While Latasha Drummond did not testify at the habeas trial, her statements to investigators were admitted into evidence. In short, evidence of the statements allegedly made by Ms. Drummond were too unreliable to be given much credit. When speaking to the petitioner’s investigator, she is alleged to have admitted that she was not in her apartment when the shooting occurred, but outside in front of the building, that she did not see a gun in the petitioner’s hand at the time of the shooting, and denied that she made any statement about witnessing the shooting to Courtney Croome. She also allegedly denied meeting the petitioner several days later where he allegedly admitted to the shooting. When speaking to the State’s inspector, however, Mrs. Drummond supposedly made contradictory statements, claiming that the petitioner’s investigator, "wanted me to change my story, but I was not going to change my story." As will be discussed later in this opinion, Ms. Drummond contradicting herself, and her general lack of credibility, is nothing new.
Upon the advice of counsel, Ms/Mrs. Drummond asserted her privilege against self-incrimination when called to the stand at the habeas trial. After hearing argument from counsel, the Court determined that the witness was "unavailable" and allowed the petitioner to present statements allegedy made by her against her penal interest when interviewed by the petitioner’s investigator. See, Conn. Code of Evidence sec. 8-6(4) and State v. Frye, 182 Conn. 476, 481-82 & n.3, 438 A.2d 735 (1980) (witness with a testimonial privilege is "unavailable" within the meaning of the rules of evidence).
This claim fails against both trial and habeas counsel. As to trial counsel O’Connor, the petitioner has failed to establish by a preponderance of the evidence that Latasha Drummond actually provided perjured testimony and, therefore, has failed to prove that he was actually prejudiced at trial. Strickland v. Washington, 466 U.S. at 694. Even if she did testify falsely, the petitioner has failed to present any evidence as to how Attorney O’Connor should have discovered that it was, in fact, false during the trial, so the petitioner has also failed to establish that trial counsel’s performance was unreasonable. Id. at 688 (counsel’s performance is to be judged not in hindsight, but on the facts and circumstances then present).
The same is true as to the claim against habeas counsel, Attoney Visone. He testified that he sent his investigator out to speak with Latasha Drummond, but she refused to speak with him and was adamant that she "was not coming to court to testify." Given her refusal to speak to his investigator, Attorney Visone presumed she was not going to be helpful to his client, and chose not to call her as a witness. The Court cannot find it overtly unreasonable for Attorney Visone to make the decision not to call a witness who testified against his client in the underlying trial, appeared to remain hostile to his cause, and where he had no idea what the witness might say. For those reasons, the claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
Attorney Visone resides outside of Connecticut and did not actually testify at the habeas trial. However, the parties stipulated to taking his deposition and allowing the transcript to be admitted as a full exhibit.
Exhibit 8, Transcript of Deposition of Attorney Joseph Visone, p. 37-38.
The petitioner’s next claim is that Attorney Visone was ineffective for failing to secure the testimony of Wayne Tindal in order to impeach testimony provided by Dela Tindal. Mr. Tindal did not appear as a witness before the habeas court, so the claim fails as a matter of law. Adorno v. Commissioner of Correction, supra, 66 Conn.App. at 186.
The petitioner’s next claim is that Attorney Visone was ineffective for failing to call David Sims as a witness to establish that trial counsel was ineffective for failing to have called him to undermine testimony provided by Dela Tindal and Latasha Drummond. Although Mr. Sims did testify before this Court, it is not actually clear what significance the petitioner claims his testimony would have had to the outcome of the original trial. While he was with the petitioner most of the day on the day the incident occurred, he and the petitioner separated prior to the shooting, and he did not witness any of the incidents directly related to the dispute the two men had in the hallway or the shooting. At best, his testimony, general background information that he had "never seen the petitioner and victim exchange harsh words," and that the petitioner generally had a "good demeanor," could have been considered as character evidence, but was hardly significant enough that there is any real probability that including it would have resulted in a more favorable outcome for the petitioner. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
Finally, the petitioner claims that Attorney Visone was ineffective for failing to preserve the testimony of the defendant’s uncles, Harvey Brooks and Curtis Brooks, after they testified on direct examination at the petitioner’s prior habeas trial. He claims their testimony would have directly contradicted Latasha Drummond’s testimony that she met the petitioner while he was hiding out from the police, which also would have contradicted her testimony that she saw the petitioner with a gun. Some additional background information is necessary to fully understand this claim.
At trial, Latasha Drummond testified that a man she believed to be an uncle of the petitioner located her while the petitioner was in hiding and brought her to see him in a vacant apartment above a store known as "King Kong Grocery." The petitioner claims that Harvey and Curtis Brooks are the petitioner’s only uncles, and inclusion of their testimony would have directly refuted Latasha Drummond’s claims. Attorney Visone did call Curtis Brooks as a witness on the first day of the petitioner’s prior habeas trial, over the objection of the respondent. At that time, he indicated he was residing in Maryland. On direct examination, Curtis Brooks testified generally that he did not know Latasha Drummond and had never brought her to meet the petitioner anywhere. Harvey Brooks, who was a resident of Connecticut at the time, also testified that he had never met Latasha Drummond and had never brought her to meet the petitioner anywhere. The respondent objected to either of them being allowed to testify, because they had not been properly disclosed according to the trial management orders. The petitioner had only listed them as "petitioner’s uncles" on the witness list served on the respondent, and their names were not disclosed until they actually took the stand on the first day of the habeas trial. The trial court overruled the objection, however, granted the respondent’s request to defer cross examination to the second day of trial, which had yet to be scheduled.
Exhibit 1, Transcript of State v. Solomon White, September 7, 2007, p. 29-30.
Given subsequent circumstances, including the fact that Mr. Brooks had an active Connecticut arrest warrant at the time, there is question about whether he was actually residing in Maryland. There was no question, however, that he was not a Connecticut resident at the time.
While Mr. Brooks was still in the courtroom, all parties discussed the fact that there was no power to subpoena him back to Connecticut for the second day. The habeas court warned all parties, while Mr. Brooks was still in the courtroom, that his failure to return to court to be cross examined could lead to his testimony being stricken by the court. After Harvey Brooks testified, since he was a resident of Connecticut, the habeas court ordered him to appear on the continuance date so that the respondent could have an opportunity to cross examine him. When the trial reconvened on July 8, 2014, and neither Curtis or Harvey Brooks appeared. After some argument on the record, the habeas court struck their testimony. See, Ann Howard’s Apricots Rest., Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 222, 676 A.2d 844, 852 (1996). The petitioner claims that Attorney Visone’s failure to prohibit this was deficient performance.
Exhibit 1, Transcript of White v. Warden State Prison, April 30, 2014, p. 78-80.
Exhibit 1, Transcript of White v. Warden, State Prison, April 30, 2014, p. 91, ln. 8-17.
Respondent’s counsel discovered between court dates that Curtis Brooks was the subject of an active felony domestic violence warrant with a $35,000 bond. The warrant had been issued prior to the petitioner’s criminal trial and remained outstanding at the time of the first habeas trial. The relevance of this information was that Curtis Brooks was present on the first day of trial and heard that one of the reasons the respondent asked to defer cross examining him until the second day of trial was to allow time to run his criminal background.
"[A] court or hearing officer has the discretion to choose among three options when a witness has testified on direct examination and subsequently becomes unavailable for cross examination: declare a mistrial; strike the direct testimony; or allow the direct testimony to stand." (Emphasis added.)
First, this was a judicial remedy granted following argument by both counsel. There can be no blame placed on Attorney Visone for Curtis Brooks’ non-appearance. Attorney Visone advised the court that Curtis Brooks was unable to appear due to a medical issue. While Attorney Visone did not specifically use the word "continuance," it is clear to any reasonable person that he was indicating that Curtis Brooks’ failure to appear was not a willful. While granting a continuance was likely within the habeas court’s discretion, striking the testimony, declaring a mistrial, or allowing the testimony to stand are the three specified remedies at the court’s disposal under such circumstances. Id. The Court fails to see how Attorney Visone’s performance can be faulted where he has fully informed the court, and the court simply chose to exercise its discretion in an adverse manner.
Curtis Brooks’ testimony before this court did not serve to enhance the petitioner’s claims. At one point, he testified that he did not come back up for the second day of trial in 2014 "because he couldn’t get back up here." Shortly thereafter, however, he claimed that nobody ever contacted him to notify him of the second date. At another point, he gave some indication that he had a two-way bus ticket, so he had to leave Connecticut. In the end, this Court finds it more than likely that his failure to return was his own willful act, wholly or partially motivated by his fear that the outstanding arrest warrant for him had been discovered. (See, footnote 8.)
As to the petitioner’s suggestion that Attorney Visone failed to subpoena Curtis Brooks for the second day of trial, it is uncontested that Mr. Brooks was not a Connecticut resident and, therefore, not subject to subpoena by Attorney Visone. State v. Bennett, 324 Conn. 744, 757, 155 A.3d 188, 197 (2017). ("It is well settled ... that a state court’s subpoena power is limited to the state’s borders ..."). Therefore, this claim fails, because the petitioner is unable to prove that it was deficient performance for Attorney Visone not to secure Curtis Brooks for the second day of the habeas trial. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
Since this is not a criminal prosecution, the considerations of General Statutes § 54-82i for a defendant’s request to compel the attendance of out-of-state witnesses does not apply.
Attorney Visone did subpoena Harvey Brooks to attend the second day of evidence, but he failed to appear. Despite having served Harvey Brooks with a subpoena, the petitioner claims that Attorney Visone was deficient for failing to specifically request a continuance when he did not appear to be cross examined on July 8, 2014. The Court finds nothing unreasonable about Attorney Visone’s performance in this regard. Although he had formally tendered the witness, served Harvey Brooks with a subpoena for the second day, and properly objected to the respondent’s request to strike the testimony. Again, the habeas court was presumed to have been aware of the options it had at its disposal to rectify the failure of a Connecticut resident to appear in response to a subpoena, but chose to strike the testimony. It is not unreasonable performance because Attorney Visone failed to mention the possibility of a continuance, a remedy the trial court would clearly have been aware of. Id.
Exhibit 1, Transcript of White v. Warden, State Prison, July 8, 2014, p. 24, 1n. 11-13; Exhibit 8, Transcript of Deposition of Attorney Joseph Visone, p. 30, 1n. 18-24.
There is also no credible evidence in this record that Attorney O’Connor was ever aware of Curtis or Harvey Brooks. Even if he was aware of them, there was no credible evidence presented here as to the information he possessed about their possible value as witnesses. Attorney O’Connor did not testify before this court, and does not appear to have been asked any questions about Curtis or Harvey Brooks as potential witnesses at the prior habeas. The defense strategy, which would include which witnesses to call, is presumed to be the result of the exercise of counsel’s reasoned professional judgment; E.g., Boyd v. Commissioner of Correction, 130 Conn.App. 291, 297-98, 21 A.3d 969, 974, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011); and the petitioner cannot overcome this presumption without at least some information in the record evidencing Attorney O’Connor’s knowledge of these potential witnesses and, assuming he was actually aware of them, the basis for his decision not to call them. Therefore, another for denying this claim is that the petitioner has failed to establish that Attorney O’Connor’s performance was deficient for not calling Harvey or Curtis Brooks to testify. See Lozada v. Warden, supra, 223 Conn. at 842-44 (In order to prove ineffectiveness against habeas counsel, a petitioner also must prove ineffectiveness under both prongs of Strickland against underlying trial counsel).
See, Exhibit 1, Transcript of White v. Warden, State Prison, April 30, 2014.
Finally, this claim also fails, because the petitioner has failed to establish prejudice. Both Curtis and Harvey Brooks testified before this Court, but their testimony was not particularly compelling. If believed, they indirectly impeach Latasha Drummond’s claim that one of the petitioner’s uncles brought her to see him in hiding after the shooting, where she also saw him dispose of the murder weapon. Latasha Drummond’s credibility, however, was thoroughly impeached during the criminal trial. By way of a few examples, the jury heard that she was serving a prison sentence for felony false statement at the time she testified, which was unrelated to petitioner’s trial; that she had lied to the police in her initial statements by telling them she was not present at her apartment when the shooting occurred; to telling the police she did not know where the petitioner was, although he was found hiding in her mother’s apartment; to helping the petitioner try to bribe witnesses involved in this case and to encourage them not to show up for hearings; and that she had been convicted of witness tampering and bribery charges as a result of conduct directly related to the petitioner’s case, and was waiting be sentenced pursuant to a cooperation agreement following the trial. Therefore, any testimony provided by the Brooks brothers would only have been cumulative impeachment of her truthfulness. Most importantly, even if accepted, the Brooks’ testimony would not have undermined the testimony of Dela Tindal witnessing the petitioner shoot the victim. Therefore, this claim also fails because the petitioner has not established prejudice. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
Exhibit 1, Transcript of State v. White, September 6, 2007, p. 142.
Exhibit 1, Transcript of September 6, 2007, p. 164-65.
Exhibit 1, Transcript of September 6, 2007, p. 178-81.
Exhibit 1, Transcript of September 6, 2007, p. 185-87.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED.