Opinion
No. CV01-0810396
February 25, 2004
MEMORANDUM OF DECISION
The petitioner, Frantz Cator, alleges in his petition for a Writ of Habeas Corpus initially fled on August 22, 2001 and amended on November 23, 2003, 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 consequently that his case should be returned to the docket. Moreover, the petitioner also alleges that there is newly discovered evidence to prove that he is actually innocent of the offense of which he was found guilty. For the reasons set forth more fully below, the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The petitioner initially asserted a third count complaining that his conviction was improper due to prosecutorial misconduct. Following the trial of this matter in the habeas court, the petitioner has withdrawn that count on the record and this Court finds that it is withdrawn with prejudice.
The claim of ineffective assistance of counsel essentially complains, inter alia, that his trial defense counsel failed to properly conduct a pretrial investigation, failed to interview a potential witness, Desmond Hamilton who might have provided exculpatory evidence, failed to devote sufficient time to the case, and failed to file a motion to suppress a statement of the petitioner. The petitioner argues that as a result, the trial defense counsel did not perform his duties to his client in a professional manner such that this conviction was obtained in violation of his rights under the state and federal Constitutions. In light of this, the petitioner asks that the finding of guilty reached by the jury be set aside and that his case be restored to the docket.
The gravamen of the petitioner's argument in connection with his actual innocence claim involves the acquittal following a jury trial of one of his co-conspirators, Peter Johnson. The petitioner argues that his conviction for conspiracy cannot therefore be allowed to stand.
This matter came on for trial before this Court on February 20, 2003. The petitioner, his trial defense counsel, Attorney Kevin Randolph, Mr. Desmond Hamilton and Mr. McWarren St. Julien all testified at the trial. In addition, the Court received a transcript of the petitioner's trial into evidence. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a criminal case in the Judicial District of Fairfield at Bridgeport, under Docket Numbers CR96-0118578 and CR96-0118587 in which he was charged with: Capital Murder in violation of CGS § 53a-54(c), Murder in the first degree in violation of CGS § 53a-54(a), Conspiracy to commit Murder in violation of CGS §§ 53a-48 and 54(a), Kidnapping in the 2nd degree in violation of CGS § 53a-94, and Conspiracy to commit kidnapping in violation of CGS § 53a-48 and 94.
2. On October 21, 1997 the petitioner was found guilty of murder, felony murder, conspiracy to commit murder, kidnapping in the 2nd degree and conspiracy to commit kidnapping.
3. The petitioner came back before the Court for sentencing on March 6, 1998. At that time, the Court, Ford, J., imposed a total effective sentence of imprisonment for fifty-five years, suspended after the service of forty-five years to be followed by five years probation.
4. On October 8, 1999, pursuant to a motion to correct sentence filed by the state, the Court changed the sentence from fifty-five years to fifty years.
5. The following facts were found by the Supreme Court in its decision, State v. Cator, 256 Conn. 785 (2001).
a. At the defendant's trial, the state presented evidence that Desmond Hamilton, the defendant and the victim, Nathaniel Morris, all knew each other and had participated in the sale of drugs together. On May 10, 1996, on Laurel Court, a dead-end street in Bridgeport, the defendant and Hamilton had a discussion concerning both money that Hamilton owed the defendant and a gun of the defendant's that he had given to Hamilton approximately two weeks earlier. Also present during the conversation were the victim and McWarren St. Julien. The defendant also questioned the victim about the whereabouts of the gun. During the conversation, the defendant became upset, began yelling and pulled out a Glock .40 handgun. Police officers subsequently came to the location of the conversation, but when they arrived the defendant was no longer there. Later that night, Hamilton called the defendant to attempt to explain that he did not know where the gun was located, and that he would never steal from the defendant. The defendant told Hamilton that he wanted him "to get everything straight."
b. On the following day, May 11, 1996, Hamilton again called the defendant, who told Hamilton that he was going to meet Hamilton at Hamilton's mother's house, and that the two men would go together to find the victim to learn what had happened to the gun. Later that evening, the defendant picked up Hamilton and they proceeded to 244 Olive Street in Bridgeport, where Hamilton, the victim, Tamara Addison and Terrance Addison lived. At 244 Olive Street, the defendant, the victim, St. Julien, Hamilton, Hamilton's mother, Tamara Addison, and Terrance Addison were on the front porch of the house. There the defendant asked the victim about the whereabouts of his gun that had been the topic of the May 10 discussion. At or about the same time, Rodolphe St. Victor arrived at the house. The defendant and St. Julien then left the porch as St. Victor forcibly pulled the victim off the porch. As the defendant and St. Julien proceeded to enter a blue Oldsmobile parked in the driveway of the house, St. Victor grabbed the victim by the sleeve and said "Come on. [The defendant] wants to talk to you." St. Victor then forced the victim into the Oldsmobile, which the defendant then drove away. People at the house contacted the Bridgeport police out of concern for the victim's safety. The police came to the house and, after speaking with the people there, left in search of the blue Oldsmobile. Later that evening, the defendant, St. Julien and St. Victor returned to 244 Olive Street in the blue Oldsmobile. The police arrived shortly thereafter and arrested the three occupants of the vehicle and recovered a gun from it. The defendant St. Julien and St. Victor then were taken to the Bridgeport police station. Thereafter, St. Victor and three Bridgeport police detectives left the Bridgeport police station and St. Victor directed the police to Suggetts Lane, Bridgeport, where the victim was found, conscious but unable to speak with a gunshot wound to the back of his neck. The police summoned medical personnel, who took the victim to Bridgeport Hospital, where he died. Tests conducted on the gun recovered from the car revealed that the bullet that killed the victim had been fired from it. The murder weapon was a Mac-10 automatic pistol modified with a shell catcher to retain spent bullet casings and a handle to prevent shaking when the gun was fired rapidly. This weapon belonged to the defendant, and he often carried it with him.
6. The Court will discuss additional facts, as necessary.
Discussion
The petitioner comes before this Court with a claim of actual innocence in regard to the offenses of which the jury found him guilty after a trial. He faces two difficult obstacles to overcome before relief may be granted. 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, as that standard is properly understood and applied in the context of such a claim, 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 of Correction, 242 Conn. 745 at 791-92 (1997).
It is important at the outset to understand 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. 385, 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.
I. The Newly Discovered Evidence Rule
There is a threshold question regarding the issue of actual innocence that must be considered by the 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, 357-58 (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 Clarke v. Commissioner, 249 Conn. 350 (1999), the Supreme Court specifically directed that this exact issue be briefed. Notwithstanding, upon decision, the Court declined to reach this issue because Petitioner Clarke did not present a case in which he had established actual innocence.
In Clarke, 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.
So, at least for the present, the petitioner must demonstrate not only that there is newly discovered evidence but also with a preponderance of the evidence that he could not have discovered such evidence earlier through the exercise of due diligence. It is clear that any testimony offered by the petitioner cannot ever be considered newly discovered evidence. In the absence of some sort of persuasive evidence that the petitioner suffered from a transitory amnesia at the time of his original trial that prevented him from remembering the events of May 12, 1996, his testimony cannot ever be considered newly discovered. While the petitioner has an absolute right to use the protections of the Fifth Amendment as a shield and remain silent, he cannot use it as a sword to seek a new trial at a significantly later time by deciding to testify years later. The only other matters that might then qualify as "newly discovered evidence" would be the testimony of Mr. Hamilton and Mr. St. Julien and the fact that Peter Johnson was acquitted of the charge of conspiracy to commit murder.
The state has an interest "in maintaining the fairly obtained conviction of one whom it sincerely believes is guilty, and in not being required to maintain that status by way of a second trial years later, when its evidence of guilt may be less reliable than when it was fresh." Miller v. Commissioner, 242 Conn. 745 at 792 (1997).
Now, insofar as the testimony of Desmond Hamilton, it is clear that this is not newly discovered. First, Mr. Hamilton testified at the initial trial. Second, an investigator working at the direction of the petitioner's trial defense counsel interviewed him. Finally, the testimony that he offered at the habeas trial did not produce any sort of exculpatory evidence.
In respect to the testimony of McWarren St. Julien, it appears as if this might be in the category of evidence that was not available to the defense at the time of the original trial. Mr. St. Julien was a co-defendant of the petitioner and could have exercised his Fifth Amendment right to remain silent. Thus, he would not have been available for interview or testimony to the petitioner at his original trial At the habeas trial. Mr. St. Julien did testify that it was Peter Johnson that shot and killed the victim in this case. This testimony will, therefore, broadly fall into the category of "newly discovered evidence."
The major argument put forth by the petitioner is that the acquittal of Peter Johnson of the charge of conspiracy to commit murder in a later trial means that the petitioner is entitled to an acquittal on the conspiracy charge. He makes the argument that the fact of this acquittal is newly discovered evidence because it happened after the petitioner's trial. However, even if the Court accepts this argument, there is a major impediment to this fact providing any relief for the petitioner. It is clear that the acquittal of the sole co-conspirator does not bar the conviction of the other co-conspirator at a separate trial. State v. Colon, 257 Conn. 587 (2001). While the acquittal of Peter Johnson may well be "newly discovered," it simply does not provide any basis upon which this Court can fashion relief for the petitioner.
Consequently, the only fact introduced at the habeas trial that might have any bearing on the question of actual innocence is the statement by Mr. St. Julien that Peter Johnson is the person who shot the victim.
II The Claim of Actual Innocence
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). 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. This latter reason is particularly compelling when the original verdict was the result of a trial by jury.
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. Commissioner, 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).
The petitioner has been tried before a jury of his peers and found to be guilty beyond all reasonable doubt. The right to a trial by jury is one of our most sacred rights in the Anglo-American system of jurisprudence with its roots running back to that field at Runnymeade in 1215 A.D. where King John was forced by his nobles to sign that document we still call the Magna Carta. Courts have, and continue to, afford extraordinary deference to a decision made by the jury. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that jury verdict and order a new trial and that is one of the reasons that there is such a high standard for the petitioner to overcome in order to achieve relief. 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).
It is interesting to note that King John was such a weak, ineffectual and disliked monarch that, by tradition, no English monarch has ever been named John since that day.
The "new" evidence produced by the petitioner was the testimony of McWarren St. Julien. This evidence simply is not convincing. First he is a convicted felon, a factor that in and of itself, has an adverse effect upon, and may be considered when determining, the credibility of any witness. Second, even if taken at face value, the only thing that the testimony of Mr. St. Julien establishes is that the petitioner was not the actual shooter. There was nothing in his testimony that in any way undermined the argument that the petitioner was part of a conspiracy to murder the victim or was an accessory. Indeed, there are numerous loose threads in the testimony with no explanation given by Mr. St. Julien as to why Peter Johnson would unexpectedly and unbeknownst to the petitioner decide to shoot the victim. There are some inconsistencies in the story as to why all of the men were in the car and where the victim was found. Given all of this, it is difficult to say that the testimony of Mr. St. Julien was anything except "loose, equivocal or contradictory."
Petitioner's counsel argued that this testimony establishes a reasonable doubt of the petitioner's guilt. While there is the possibility that some triers of fact might find that there was indeed a reasonable doubt to the petitioner's guilt on the basis of this testimony, that is not the standard that this Court must use. Not only must the petitioner prove with clear and convincing evidence that he is actually innocent (something that clearly 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 evidence adduced in this trial, coupled with the evidence from the petitioner's original trial, fails to do so.
III. Ineffective Assistance of Counsel
The petitioner comes to Court seeking to set aside the finding of guilty on the ground that his attorney did a constitutionally inadequate job of representing him. However, the evidence presented to this court clearly shows the contrary. There has been nothing presented to this court that would permit a finding that the finding of guilty was the result of any sub-standard performance of the trial defense counsel. 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.Ed.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.
Attorney Randolph did not provide sub-standard representation. The petitioner has alleged that his trial defense counsel failed to interview Desmond Hamilton. While this may be literally true in that Attorney Randolph did not speak directly with Mr. Hamilton, he did have him interviewed by the defense investigator. There is nothing in the law that mandates an attorney to individually interview all potential witnesses and he or she may rely upon the services of a properly designated assistant, such as an investigator, to do so. Similarly, the petitioner complains that Attorney Randolph advised him not to testify. This is something that Mr. Randolph confirms to be true. Moreover, it is clear that this was good advice given the history of the petitioner, the improbability of the testimony he would provide and the quick temper that the petitioner admitted to possessing. The fact that the petitioner followed the prudent advice of his counsel and voluntarily chose not to testify cannot give rise to a claim of ineffective representation of that counsel at a subsequent habeas trial. The only conclusion to which this Court can come after listening to the testimony of the petitioner and Attorney Randolph is that Mr. Randolph did provide effective representation.
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. Commissioner 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 falls 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. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still show "that there is a reasonable probability that, but for counsels 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 was convicted before a jury after a full trial and was ably represented by counsel who did all that he could to ensure that petitioner received appropriate representation. "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. Manson, 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. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
The Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge