Opinion
No. CV00-0597359
May 23, 2005
MEMORANDUM OF DECISION
The petitioner, Christopher Williams alleges in his petition for a Writ of Habeas Corpus initially filed on March 7, 2000 and amended on January 28, 2003: (a) that he was denied Equal Protection under law because a lawyer (e.g. Public Defender) was not appointed to represent him in an appeal from the trial court's denial of his Petition for a New Trial; b) that he is actually innocent of the crimes for which he was convicted (c) that he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and, (d) that he was the victim of prosecutorial misconduct. Consequently he argues that this habeas court should order restoration of his appellate rights in connection with his previous petition for a new trial, appoint a public defender to represent him in that appeal, vacate his convictions and sentences and release him from custody. The Respondent raises several special defenses asserting that in regard to the issues contained within the previously litigated petition for a new trial decided by the trial court, Moran, J. in 1997 the case is res judicata. The respondent also asserts this defense in regard to the claim of prosecutorial misconduct. For the reasons set forth more fully below, this habeas court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
This is another of the cases that was initially filed in the judicial district of Hartford. The case was subsequently transferred to the judicial district of Tolland on May 24, 2004.
The claim of prosecutorial misconduct was not included within the amended petition in the original file pending under docket No. CV00-0597359. The petitioner filed a subsequent petition under docket No. CV04-4000158 on September 22, 2004 in which he raises the prosceutorial misconduct claim. On January 6, 2005, the habeas court, White, J., entered an order consolidating the two files under the above-captioned docket No.
The claim of ineffective assistance of counsel, particularly as set forth in the written closing argument by petitioner's counsel, is convoluted but essentially complains that his trial defense counsel failed to properly conduct a pretrial investigation. The petitioner argues that as a result, the trial defense counsel did not perform her duties to her client in a professional manner and that this is the basis of the jury's guilty findings. To cut through this Gordian knot, the habeas court finds that there is nothing in the record presented to this court that serves to undermine the reliability of the petitioner's conviction, consequently no relief is warranted. See Bunkley v. Commissioner of Correction, 222 Conn. 444 (1992).
Legend has it that when Alexander the Great approached the ancient Persian city of Gordium on his campaign of world conquest, he was confronted with a wagon to which a hitch was tied with an incredibly complicated knot. It was foretold that whoever could undo the knot would conquer the Persian Empire. While many had previously tried, the solution to untying the knot was elusive to all and the Persian Empire remained unconquered. Alexander contemplated the problem for a few moments, thereafter drew his sword and cut straight through the knot. He then went on to conquer the Persian Empire.
This matter came on for trial before this Court on December 13, 2004, January 18, 2005, and finally on March 14, 2005. Attorneys James Swaine and Chief Public Defender Gerard Smyth were the only witnesses who testified at the trial. In addition, the Court received a transcript of the petitioner's trial and petition for a new trial as well as a videotape of David Lisbon into evidence. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Petitioner's original defense counsel, Attorney Sue Wise is deceased.
Findings of Fact
1. The petitioner was the defendant in two criminal cases in the Judicial District of New Haven, under Docket Numbers CR90-332319 and CR90-332795 in which he was charged with Murder in the first degree in violation of C.G.S. § 53a-54(a); Attempt to commit Assault in the First Degree in violation of C.G.S. §§ 53a-49 § 53a-59(a)(1); and criminal possession of a firearm in violation of C.G.S. § 53a-217(a).
2. On February 28, 1992, having been found guilty after a trial by jury, he was sentenced to a total effective sentence of fifty years' incarceration.
3. The late Attorney Sue Wise represented the petitioner at trial. The petitioner had privately retained her.
4. Petitioner filed a motion for new trial subsequent to sentencing claiming that a videotape of statements by David Lisbon, a witness at the trial, had recently surfaced that contained exculpatory material. Attorney James Swaine, whom he had also privately retained, represented the petitioner in this petition.
5. The Court, Moran, J. denied said petition on December 23, 1997. Attorney Swaine declined to represent the petitioner on the appeal of this denial. No public defender was appointed for the petitioner as the petition for a new trial was a civil matter and the petitioner ended up attempting to deal with the appeal on a pro se basis. The appeal was ultimately dismissed.
6. The Court will discuss additional facts, as necessary.
Discussion
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. 365, 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 "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 this 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.
Now, the petitioner comes to Court seeking to set aside the findings of guilty on the ground that his trial attorney did an inadequate job of pretrial preparation. However, the evidence presented to this court clearly shows that the trial defense counsel did do an adequate job of preparing for trial. There has been nothing presented to this court that would permit a finding that the jury's finding of guilty was in any way induced by substandard performance of the trial defense counsel.
The petitioner's claim revolves around the contents of videotape that shows David Lisbon seeming to offer exculpatory comments regarding the petitioner's participation in the murder for which he was convicted. The videotape did come into the hands of the petitioner's trial defense counsel some time after the trial but prior to the motion for a new trial. From comments in the videotape, it appears as if the videotape was made after the petitioner's conviction for these crimes. The petitioner essentially argues that Attorney Wise failed to take adequate steps to secure the testimony of David Lisbon prior to the jury's verdict on the merits. He uses a bootstrap argument that since the videotape shows there was potential exculpatory evidence on the videotape then it is obvious that Attorney Wise could have procured this for the trial on the merits. Notwithstanding this argument, the petitioner has failed to introduce any proof at the trial that Attorney Wise either was, or could have been, aware of the potentially exculpatory testimony by Mr. Lisbon until the videotape surfaced. To be sure, given the handicap the petitioner faces with the untimely demise of Attorney Wise, such proof may have been problematic; nevertheless, there was no attempt to have David Lisbon or other witnesses testify at the habeas trial. This court is then left with the petitioner's bald assertion that the potential recantation by Mr. Lisbon was obtainable at an earlier date and this is a leap in logic that the Court declines to take.
In his written closing argument dated March 27, 2005 on page 3, the petitioner concedes "the testimony, as well as the transcript of the criminal trial, established that the videotape had been made sometime after the jury's verdict."
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.E.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.
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 faith within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
It is not necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It is clear that the petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of his trial defense counsel. Even assuming deficient performance by his trial defense counsel the petitioner must still 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. Here, the petitioner has introduced videotape that has cryptically exculpatory comments by a government witness who was clearly under the influence of crack cocaine at the time he made those statements. "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 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Mansen, 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. Commission of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This videotape simply is insufficient to overcome that burden.
There is simply no basis upon which this Court can conclude that Attorney Wise was anything but effective in her trial representation of the petitioner.
It is well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege a claim that the petitioner's state or federal constitutional rights have been violated. See Summerville v. Warden, 229 Conn. 397 (1994), and Clarke v. Commissioner, 43 Conn.App. 374 (1996). However, in order to prevail in such a claim, a petitioner must overcome two very large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner, 242 Conn. 745, 791-92 (1997). Unlike the original criminal trial in which the petitioner (then the defendant) enjoyed the presumption of innocence with the burden of proving his guilt beyond all reasonable doubt resting upon the prosecutor, in the habeas proceeding, the burden of proof rests upon the petitioner. This is so because 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, 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.
The burden of proof in a habeas proceeding in which the claim is actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." Miller v. Commission, supra at 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." State v. Bonello, 210 Conn. 51 at 66, cert. den. 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
There is a threshold question regarding the issue of whether the question of actual innocence should even be considered by this Court. "The respondent asserts that a claim of actual innocence, when raised in a habeas corpus proceeding, must be based on newly discovered evidence. To be considered `newly discovered,' `the evidence must be such that it is not cumulative, was not available to the petitioner at his criminal trial and could not have been discovered prior to the criminal trial through the exercise of due diligence.' In Clarke v. Commissioner of Correction, 249 Conn. 350, 375-78 (1999), our Supreme Court has left the absolute requirement of `newly discovered evidence' an open question in our habeas jurisprudence `until the actual outcome of the case is likely to depend on the answer to the legal question.' Id. at 351." LaPointe v. Warden, No. CV 97-0571161 (Sep. 6, 2000), Freed J. Although having been presented with several opportunities to do so, our Supreme Court has declined to make the definitive statement. Consequently, while the final rule in this state may be to the contrary, as it stands at this time, the operative appellate decision on this issue is Clarke v. Commissioner, 43 Conn.App. 374 (1996).
Most notably, in Clark v. Commissioner, 249 Conn. 350 (1999) the Supreme Court specifically directed that this exact issue be briefed. Notwithstanding, upon a decision, the Court declined to reach this issue because Petitioner Clarke did not present a case in which he had established actual innocence.
In Clark, the Appellate Court "concluded that although no governing standard of proof exists under which a claim of actual innocence should be evaluated, such a claim must, nonetheless, be based on newly discovered evidence. Williams v. Commissioner of Correction, supra, 41 Conn.App. 527. [The Appellate Court] concluded that `a writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered.' (Emphasis added.) Id., 530. Moreover, `[it] incorporate[d] the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner's claim of actual innocence.' Id., 528. Thus, [it] held that `a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence.'" Clarke, supra at 379.
Subsequent to the Appellate Court's decision in Clarke, the Supreme Court decided Miller v. Commissioner of Corrections, 242 Conn. 745 (1997) in which the standard of proof was discussed. This will be reached later in this decision.
Despite the allegation contained in the amended petition, the petitioner has not submitted anything even remotely resembling "newly discovered evidence." The Lisbon videotape (the only potential for newly discovered evidence) was known to the petitioner before his sentencing. Indeed, this videotape formed the foundation of the petitioner's unsuccessful attempt to procure a new trial. Consequently, on that basis alone, this court would be justified in rejecting the claim of actual innocence.
Here, the petitioner has been found guilty following a contested trial on the merits. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that verdict and enter a not guilty finding. The "clear and convincing" standard that this Court must apply "should operate as a weighty caution upon the minds of all judges and it forbids relief whenever the evidence is loose, equivocal or contradictory." Lopinto v. Haines, 185 Conn. 527 at 539 (1981). Here, there is no basis upon which to set aside the guilty verdict, and even had there been a basis to do so, the available evidence pointing to the petitioner's guilt is strong. In light of all of this, the petitioner has failed to meet his burden of proving actual innocence with clear and convincing evidence. Moreover, not only must the petitioner prove with clear and convincing evidence that he is actually innocent (something that he failed to do) he must also prove that no reasonable finder of fact would find the petitioner guilty. Miller v. Commissioner, 242 Conn. 745 at 802 (1997).
The petitioner also raises an argument that his right to counsel has been abridged because the public defender was not appointed to represent the petitioner on his appeal of the motion for a new trial. Unfortunately for the petitioner's position, a motion for a new trial is considered a civil matter and there is no constitutional right to appointed counsel. There was some testimony from the Chief Public Defender that sometimes public defender attorneys are authorized to file such matters and represent indigent defendants in connection with the representation of their clients in a criminal trial, nevertheless, such permission is granted on a case-by-case basis. Here, the petitioner had eschewed the services of the public defender at all earlier stages of his criminal trial and now complains that his constitutional right to equal protection has been violated by the failure of the state to appoint a public defender to represent him on his appeal of the denial of a motion for a new trial. The petitioner has failed to demonstrate how he is being denied equal protection and this claim is summarily denied.
Finally, the petitioner asserts that he was the victim of prosecutorial misconduct. Interestingly, the petitioner notes in his written closing argument dated March 27, 2005 that "[p]rosecutorial misconduct in closing argument was raised by petitioner on appeal and found insufficient to require the granting of a new trial. Petitioner disputes that conclusion and believes this court should reject it . . ." Indeed, it is clear that the very same comments that the petitioner condemns in the habeas trial did form the basis for one of the issues raised on appeal. It is equally clear that our Supreme Court rejected the petitioner's argument when it was on appeal by declining to review it. State v. Williams, 231 Conn. 235, 245-47 (1994). In order for this habeas court to now consider the petitioner's claim that was properly raised and rejected on direct appeal, this habeas court must allow itself to be a "substitute for an appeal," and that is not permissible. "We have repeatedly and emphatically stated that habeas corpus cannot be used as an alternative to a direct appeal. Blue v. Robinson, 173 Conn. 360 (1977); Vena v. Warden, 154 Conn. 363 (1966); Wojculewicz v. Cummings, 143 Conn. 624 (1956). A Superior Court must apply and follow the decisions of the Appellate and Supreme Courts even in those circumstances in which a particular superior court judge may have been inclined to rule otherwise. That is the very heart of what is meant by the term stare decisis. To do anything else would be to begin a descent into anarchy in which each judge becomes a law unto him or herself. The prosecutorial misconduct issue is, therefore, no longer capable of resolution in this habeas court.
The Petition for a Writ of Habeas Corpus is dismissed.
S.T. Fuger, Jr., Judge