Opinion
TSRCV134005697S
05-03-2016
Marvin Wilso n v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Marvin Wilson, seeks habeas corpus relief from a total, effective sentence of six years imprisonment followed by four years of special parole imposed, after a jury trial, for the crimes of strangulation second degree and violation of a protective order. The jury acquitted him of the greater offense of strangulation first degree and tampering with a witness. These convictions were affirmed on direct appeal, State v. Wilson, 142 Conn.App. 793, 64 A.3d 846 (2013); cert. denied, 309 Conn. 917, 70 A.3d 40 (2013).
At the habeas trial, the petitioner withdrew counts of actual innocence and ineffective assistance of appellate counsel, as well as certain specifications of ineffective assistance of trial counsel, Attorney Walt Bansley, IV. Also, the petitioner agreed that his claims of ineffective assistance played no role in his conviction for violation of a protective order and that no relief is warranted as to that conviction.
The surviving allegations are that Attorney Bansley rendered ineffective assistance by failing to investigate and present the testimony of Ty Williams; by failing to adequately cross examine or otherwise impeach the testimony of the victim, Colleen Gambino; by failing properly to investigate and present evidence that the victim stole money from the' petitioner's bank account; by calling the petitioner's parole officer to testify as a defense witness; by failing to present transcriptions of telephone calls between the petitioner and the victim recorded by the Department of Corrections; and by improperly advising the petitioner concerning his decision whether to testify in his own defense.
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 norms. 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.
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.
If it is easier to dispose of an ineffective assistance claim for failure to satisfy the prejudice prong of the Strickland standard, then the habeas court may address that issue directly, Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993).
The Appellate Court sufficiently summarized the evidence at the criminal trial which supported the jury's verdicts:
The jury reasonably could have found the following facts. The defendant met the victim, Colleen Gambino, at a Narcotics Anonymous meeting in 2008. Although married, the victim began dating the defendant approximately four months later and moved in with him in October 2008. She subsequently moved back in with her husband for a period of time before once again moving in with the defendant. The defendant and the victim later moved into the attic apartment of a three-family house located at 102 Gilbert Street in New Haven on March 7, 2010.
The victim was sleeping in bed on the morning of July 12, 2010, when the defendant suddenly shook her. As she awoke, the defendant asked her to call her aunt in Florida " for money." The victim pretended to call her aunt with the defendant's cell phone and informed him that her aunt had not answered. When the defendant examined the phone and learned that she had not called her aunt, he became angry and repeatedly called the victim a liar. The victim then informed the defendant that she " wasn't calling nobody for money" which made the defendant " real mad." At that time the victim also declared, " I'm not sure if I even want to be with you anymore."
In response, the defendant jumped from a chair and angrily approached the victim. He climbed on top of the victim, who was lying in bed, and began choking her. The defendant placed his hands around her neck and squeezed hard. As a result, the victim felt pain in her neck and was unable to breathe or speak. As he choked her, the victim was " real scared" as to whether she " was going to make it out of there." The defendant eventually relented and let go of the victim's throat. He returned to the chair in the room and tore up a birthday card he had bought the victim. As he did, he appeared to be " [o]ut of his mind." His anger escalated, and when the victim informed him that she was going to contact the police, the defendant forcefully placed a pillow over her face and attempted to smother her. When the victim began kicking a nearby wall, the defendant removed the pillow from her face and " grabbed a knife and said that he was going to stab himself because [the victim] told him [she] was going to have him arrested . . . [H]e said he was going to stab himself and then say that [the victim] did it to him." The defendant then spoke with someone on his cell phone and said, " she's having me arrested, take care of her."
The two continued to argue as the victim proceeded first to the kitchen and then to a staircase, where the victim " fell and cut both of [her] arms." Two young girls who also lived in the house approached the victim and the defendant and stated that they were going to call the police because " [t]hey heard the whole thing." In response, the defendant told the girls not to listen to the victim because " she's not on her medication . . ."
The victim departed the residence and proceeded to the emergency room of the Hospital of Saint Raphael in New Haven, where she placed a 911 call. New Haven police Officer Leslee Witcher responded to the call. When she first encountered the victim, the victim was " very upset. She was shaking. She was crying. She was hysterical." Witcher observed a laceration on the victim's right forearm, bruising around the neck area and blotches on her cheeks. The victim remained in pain at that point, as her " neck was killing. My arm was hurting me. I felt light-headed." After calming her, Witcher took a statement from the victim.
As she sat with the victim, the defendant suddenly entered the hospital. The victim inimediately began to tremble and identified him to Witcher as her attacker. At that time, the defendant was arrested.
The victim subsequently was transported to the New Haven police station, where she provided an audio statement to Detective Tammi Means and photographs were taken of her wounds. The photographs depict fresh marks on the victim's neck and cheeks below her eyes. The victim testified at trial that the bruises on her neck were painful and turned black and blue in the days following the attack. In addition, Asim Tarabar, a physician at Yale-New Haven Hospital, testified that the marks on the victim's cheeks were called petechiae, which " look . . . like small bruises" and are " common on the upper part of your neck and the face and usually around your eyes, and if it is really severe strangulation the white part of your eye called conjunctiva you can see a bleeding there, as well." Tarabar explained that petechiae are " small bleeding in around your eyes or around your conjunctivas or upper part of your face and it's resulting just because of increase of blood flow coming from your back small arteries in your neck and not be able to . . . get rid of the excess of the blood because at the same time when you are compressing someone's neck you are compressing three types of structures, one, incoming vessels that are bringing blood to outcoming vessels . . . [l]f you apply enough pressure you compromise airways so there is no oxygen coming to your lungs."State v. Wilson, supra, 794-97.
Ty Williams Claim
At the habeas trial, the petitioner took the stand and denied assaulting the victim in any manner whatsoever. He avowed that the victim was drunk and slapped him in the face several times when he chastised her about her intoxicated state. He stated that he scrupulously avoided any further confrontation with the victim by leaving their apartment and walking to a local park. While at the park, the victim telephoned him from the hospital, with a borrowed telephone, to apologize for her behavior. Shortly after he entered the hospital in order to visit her, police officers forced him to the floor and arrested him. The petitioner contends that Ty Williams, a relative who shared the apartment with the petitioner and the victim, likely witnessed the altercation at the apartment and would corroborate the petitioner's version of events. The petitioner further stated that he communicated this information to Attorney Bansley, but he never called Ty Williams to testify at the criminal trial.
Attorney Bansley also testified at the habeas hearing. He confirmed that the petitioner did relate his belief that Williams could support his defense. Attorney Bansley assigned the task of locating and interviewing Williams to a private investigator. However, that mission proved futile because he could not locate Williams.
Present habeas counsel has encountered the same negative result. Thus, no credible evidence exists to verify that Williams possessed information beneficial to the petitioner nor that Williams was available to testify at the time of the petitioner's criminal trial in 2012 nor that reasonably diligent efforts to locate him would have been successful.
It is incumbent upon the petitioner to establish the ways in which defense counsel's failure to present a witness negatively affected the pertinent proceeding, Henderson v. Commissioner, 129 Conn.App. 188, 195, 19 A.3d 705 (2011). " [P]rejudice cannot be demonstrated with regard to trial counsel's failure to interview potential witnesses where petitioner fails to call those witnesses to testify at the habeas trial or offer proof that their testimony would have been favorable to him at the criminal trial, " Id. Therefore, this allegation of ineffective assistance fails.
Parole Officer Claim
In defense of the petitioner, Attorney Bansley presented the testimony of the petitioner's former parole officer, Lenwood King. Officer King testified that he supervised the petitioner from March 2010 until July 13, 2010, which was the day after the petitioner's arrest. He explained for the jury that he subjected the petitioner to four drug tests during that period, including one administered on July 6, 2010, and all the tests results were negative for illicit substances.
King's testimony was significant because the victim had asserted, during cross examination, that the petitioner only became violent toward her when he used narcotics which he had done on the day of his attack upon her. She had supplied a similar account to the police in July 2010.
The petitioner now complains that Attorney Bansley erred in calling the parole officer to testify because the jury would, of course, learn that the petitioner had been convicted of some other crime previously. It must be noted that Officer King never revealed any specific crimes or sentences for which he monitored the petitioner. Attorney Bansley made the conscious decision to use Officer King because he supplied objective evidence of the petitioner's lack of drug usage in the months and, indeed, days before the purported strangulation. He opined that this beneficial testimony outweighed any negative impact derived from the fact that the petitioner had been on parole for some unspecified offense in the past.
The petitioner produced no litigation expert at the habeas trial who criticizes this decision. The court perceives no flaw in Attorney Bansley's reasoning, and his decision was within the wide spectrum of acceptable representation. The jury was already well aware of the victim's characterization of the petitioner as a drug addict whom she met at a Narcotics Anonymous meeting. The clean test results, including one just six days before the incident in question, might cast suspicion on the victim's credibility in averring that the petitioner attacked her while high on drugs.
A tactical decision to use or to refrain from utilizing a possible witness which falls within acceptable, professional standards cannot be the basis for a valid ineffective assistance claim, Stephen S. v. Commissioner, 134 Conn.App. 801, 820-21, 40 A.3d 796 (2012). A habeas court must evaluate trial counsel's performance from counsel's perspective and " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " Ham v. Commissioner, 152 Conn.App. 212, 98 A.3d 81 (2014). Reasonably competent lawyers might disagree whether to use the parole officer's testimony. Therefore, the petitioner has failed to meet his burden of proving the performance component of the Strickland standard with respect to this specification of ineffective assistance.
Remaining Claims
As noted above, the petitioner also argues that Attorney Bansley inadequately cross examined the victim and failed to impeach her testimony by demonstrating that she gave inconsistent explanations as to her understanding of the maximum penalty she faced if she committed perjury, viz, five years versus one year; whether she removed sums from the petitioner's bank account using his ATM card and PIN with his knowledge and blessing after his arrest; by stipulating to the use of D.O.C. telephone call records rather than exhibiting transcriptions of the content of conversations between the petitioner and the victim while he awaited trial in the strangulation case; and misadvising the petitioner to decline to testify on his own behalf. The court resolves these claims by focusing on the performance prong of the Strickland standard directly.
During her testimony, the victim readily agreed that she made multiple withdrawals from the petitioner's bank account, using his ATM card and PIN, while he was in confinement awaiting trial for the crimes against her. The disagreement was about whether the petitioner gave her the card and PIN and permission to remove funds or she simply stole from him.
Also, the victim acknowledged corresponding by mail and telephone with the petitioner on numerous occasions while he was incarcerated. The D.O.C. list of phone calls was admitted into evidence at the petitioner's criminal trial, but the content of those communications was not. The petitioner contends that transcriptions of these conversations would demonstrate that the victim uttered inconsistent opinions as to whether she believed she could face one year or five years in prison for perjury and/or false statement.
The petitioner further submits that Attorney Bansley erroneously convinced him to elect to remain silent rather than testify at his trial. The petitioner swore that the sole reason given to him by Attorney Bansley to forego testifying was because he had a lengthy criminal history of felony convictions. His criminal history includes several burglary convictions and a few robbery convictions, although admissibility of many of these convictions would have been precluded because they were decades old.
Attorney Bansley, on the other hand, stated that the petitioner's criminal record was but one of three reasons which prompted him to urge the petitioner not to testify. He concluded that the petitioner would be a terrible witness because he was " hot-headed, " and this proclivity might rear its head during the rigorous cross examination that was sure to occur. He also noted that the petitioner became " fixated" on certain issues which were tangential to the issue of guilt or innocence. As recounted earlier, the petitioner denied inflicting any harm on the victim at all. He also denied granting her permission to use his bank account.
Assuming, arguendo, that Attorney Bansley was deficient in the instances, none of these nonevents contributed to the petitioner's conviction for strangulation second degree based on the evidence which was adduced. The victim's injuries were extremely obvious, confirmed by law enforcement and medical personnel soon after the incident, and diagnostic for strangulation by virtue of the petechial hemorrhaging present. The victim's physical appearance and emotional state strongly corroborated her description of the petitioner's attack upon her and rendered his denial of any physical contact against her highly implausible.
By not testifying, the jury had to weigh the victim's claims and credibility dangling in the air. However, by testifying, the petitioner would be pitting his credibility against hers, and the physical evidence, as observed by neutral third parties, weighed heavily in her favor. The jury likely would view his dubious testimony that the victim was never injured at all unsympathetically. Conversely, this lack of credibility attributed to the petitioner may very well enhance the victim's believability in the view of the jury, by way of contrast.
Whether the victim, in the post-arrest period, misconstrued the possible penalty for perjury as one year or five years, innocently or purposefully, appears utterly inconsequential. Similarly, whether she stole from the petitioner after his arrest, or acted with his authority, had no bearing on whether she exhibited a physical condition consistent with being strangled by the petitioner as the result of a previous dispute initiated by his intoxication or hers. The petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that a reasonable probability exists that the outcome of his criminal trial would have been different but for counsel's alleged deficiencies.
The amended petition for habeas corpus relief is, therefore, denied.