Opinion
No. TTD-CV-04-4000062-S
August 16, 2006
MEMORANDUM OF DECISION
On August 11, 2004, the petitioner filed a petition for a writ of habeas corpus, and thereafter, on February 24, 2006, filed his final amended petition. In Counts One and Two of the amended petition, the petitioner claims that he was denied the effective assistance of trial and appellate counsel, respectively, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article First, §§ 8 and 9, of the Connecticut Constitution. In Count Three, the petitioner claims that his rights to due process and a fair trial were violated by juror misconduct in contravention of the Fifth and Fourteenth Amendments to the United States Constitution and Article First, §§ 8 and 9, of the Connecticut Constitution.
On April 4, 2006, which was subsequent to the presentation of evidence in this matter, but prior to closing arguments, the petitioner withdrew Counts Two and Three of his petition and withdrew two paragraphs from Count One. (See Petitioner's Withdrawal of Claims, filed April 4, 2006.) The specific allegations remaining in Count One claim that the petitioner's trial counsel was ineffective because: (1) he advised the petitioner not to testify at the motion to suppress hearing and at trial; and (2) he failed to adequately cross-examine the police officers during the motion to suppress hearing and during the trial regarding the petitioner's statements.
The matter came before this Court on March 30, 2006, and April 19, 2006. The Court heard testimony from the petitioner; his trial defense attorney, Walter Scanlon; Detective Michael Baden; and Officer Sebastian Spada. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT CT Page 15056
1. The petitioner was the defendant in a case in the judicial district of New Britain bearing docket number CR98 0177842, in which he was charged with the following crimes: felony murder in violation of General Statutes § 53a-54c; robbery in the first degree in violation of General Statutes § 53a-134(a)(1); assault of a victim sixty or older in the first degree in violation of General Statutes § 53a-59a; intentional manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1); and reckless indifference manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3).2. The petitioner was charged in a part B information as a persistent dangerous felony offender in violation of General Statutes § 53a-40 and for committing an offense while released pursuant to General Statutes §§ 54-63a to 54-63g in violation of General Statutes § 53a-40b.
3. As stated by the Appellate Court, the jury could reasonably have found the following facts to be true regarding the underlying offenses. "During the afternoon of August 26, 1998, the [petitioner] was at the apartment of Karen Barile on Belden Street in New Britain. At approximately 4:30 p.m., the [petitioner] and Barile walked to a local store to purchase cigarettes, alcohol and ice cream. They returned to the front of Barile's apartment complex about one hour later, but they did not enter. Soon thereafter, Barile left to go to Hartford to purchase cocaine for herself and the [petitioner]." State v. Bjorklund, 79 Conn.App. 535, 538, 830 A.2d 1141 (2003), cert. denied, 268 Conn. 920, 846 A.2d 882 (2004).
4. When Barile left, the [petitioner] walked to Marty's Cafe a nearby bar. On the way to Marty's Cafe, the [petitioner] stopped at the rear of Roosevelt School and hid a forty ounce bottle of beer and several bottles of Specialty Brew in the bushes. He took two bottles of Specialty Brew with him to Marty's Cafe, hiding them in his pockets. Upon arriving at Marty's Cafe, the [petitioner] ordered beer and sat at one of the tables. After finishing the beer, the [petitioner] asked for a glass of water. Upon receiving the water, the [petitioner] went into the bathroom, where he disposed of the water and filled his glass with the alcohol that he had brought with him. After finishing that drink at the table, the [petitioner] returned to the bathroom and filled his glass with the second bottle of alcohol that he had brought. The [petitioner] sat at a table and was approached by the bartender. The bartender, upon seeing the bottle of alcohol that the [petitioner] had, took the bottle. The [petitioner] went to the bar and asked for a drink, which the bartender did not serve because the [petitioner] was intoxicated and belligerent. The [petitioner] left the bar at approximately 7 p.m. Id., 538-39.
5. While outside, the [petitioner] approached the victim, Maurice Bolduc. After a short conversation, the two proceeded to walk toward Roosevelt School. While behind Roosevelt School, the [petitioner] attacked the victim, kicking his head and torso multiple times. The [petitioner] also took the victim's wallet. The victim died the following day at New Britain General Hospital. Id., 539.
6. The jury found the petitioner guilty on the following counts: felony murder in violation of § 53a-54c; robbery in the first degree in violation of § 53a-134(a)(1); assault of a victim sixty or older in the first degree in violation of § 53a-59a; intentional manslaughter in the first degree in violation of § 53a-55(a)(1); and reckless indifference manslaughter in the first degree in violation of § 53a-55(a)(3). The petitioner entered a nolo contendere plea to the part B information.
7. The petitioner received a total effective sentence of sixty years incarceration.
8. At trial, the petitioner was represented by Attorney Walter Scanlon.
9. On appeal, the petitioner's conviction was upheld in part and reversed in part. See State v. Bjorklund, supra, 79 Conn.App. 538. The Appellate Court vacated the petitioner's sentence for committing the crime of assault of a victim sixty or older in the first degree as enhanced by the part B information and remanded the case for resentencing without the enhancement. Id., 572.
10. The petitioner's total effective sentence remained unchanged.
DISCUSSION
"A petitioner's right to the effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, § 8, of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel[,] . . . not the right to perfect representation." (Internal quotation marks omitted.) Woods v. Commissioner of Correction, 85 Conn.App. 544, 549, 857 A.2d 986, cert. denied, 272 Conn. 903, 863 A.2d 696 (2004). "The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney . . . who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
"In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable." (Internal quotation marks omitted.) Bova v. Commissioner of Correction, 95 Conn.App. 129, 134, 894 A.2d 1067, cert. denied, 278 Conn. 920 (2006). Although the petitioner has the burden of proving both prongs of the Strickland test, "[a] reviewing court can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988), citing Strickland v. Washington, supra, 466 U.S. 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").
"The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . .
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [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 . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Citation omitted; internal quotation marks omitted.) Bova v. Commissioner of Correction, supra, 95 Conn.App. 135.
It is not the responsibility of the habeas court to examine the performance of defense counsel and put it under microscopic scrutiny. "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 . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90.
Moreover, "[t]he 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 the trial." Beasley v. Commissioner of Correction, 47 Conn.App. 253, 264, 704 A.2d 807 (1997), cert. denied, 243 Conn. 967, 707 A.2d 1268 (1998). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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 . . ." (Internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn.App. 313, 317, 759 A.2d 118 (2000).
The petitioner asserts that his trial defense counsel was deficient at both a hearing on the petitioner's motion to suppress and at trial. Specifically, the petitioner claims that trial counsel was deficient in the following ways: (1) by advising the petitioner not to testify at the motion to suppress hearing or at trial; and (2) failing to adequately cross-examine the police officers at the motion to suppress hearing and at trial regarding the petitioner's statements.
Despite his assertions otherwise, the petitioner has failed to show there is a reasonable probability that the jury would have found him not guilty of felony murder and robbery in the first degree merely by the petitioner testifying at the criminal proceedings that he did not take the victim's wallet. The petitioner testified before this Court that his altercation with the victim ensued because the petitioner believed that the victim was drinking more than his share of the petitioner's forty ounce bottle of beer. In fact, this incident started because the petitioner became angry at the victim for drinking the petitioner's beer without apparently having the money to reciprocate. In effect, the altercation was, in part, about money. After the incident, the petitioner assured a passerby that he would take care of the victim while the passerby left to obtain assistance for the victim. Instead, the petitioner jumped over the fence in the school yard to leave the scene of the incident, taking the beer bottle and the victim's glasses with him in order to dispose of the items inasmuch as he knew his fingerprints were on these items. Clearly, this was the petitioner's attempt to shield himself from wrongdoing. Moreover, the petitioner had made a statement to police in which he admitted taking the wallet. (See Petitioner's Exhibit, 7.) Based on the above incidents and behaviors that the petitioner would have admitted to on the stand and his statement to police, the Court cannot say that there is a reasonable probability that the jury would have believed his bald assertion that he did not take the victim's wallet.
Regarding the petitioner's claim that his trial counsel failed to adequately cross-examine the police officers concerning his statement, the petitioner called Detective Michael Baden and Officer Sebastian Spada to testify at the habeas trial. Detective Baden testified before this Court that he had broached the issue of the victim's missing wallet with the petitioner during the first interview and that the purpose of the second interview was to elicit more information about said wallet. Detective Baden's testimony before this Court was consistent with the testimony he gave at the underlying criminal trial. (See Petitioner's Exhibit, 10, p. 66-67, 69.) Officer Spada testified before this Court that he was not sure whether the missing wallet had been first mentioned in the first or second interview, although he stated that it was definitely discussed in the second interview after reviewing the petitioner's statements. In addition, Officer Spada had difficulty recollecting most of the other details of the investigation in the criminal case. Therefore, the Court finds that the petitioner has failed to meet his burden to show that his trial counsel's performance in cross-examining the police officers rose to the level of ineffective assistance of counsel.
Accordingly, the Writ of Habeas Corpus is denied.