Opinion
CV144006292S
10-17-2017
Scott Crawley v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Scott Crawley, seeks habeas corpus relief from a total, effective sentence, as reduced through sentence review, of thirty years imprisonment, imposed after a jury trial, for the crimes of two counts of possession of cocaine with intent to sell by a non-drug-dependent person, arising from consolidated files d.n. CR 02-204495 and CR 02-206292. The Appellate Court affirmed the judgments of conviction on direct appeal, State v. Crawley, 93 Conn.App. 548, 889 A.2d 930 (2006); cert. denied, 277 Conn. 925, 895 A.2d 799 (2006).
The petitioner filed a first habeas action that was denied, except for restoration of the opportunity for sentence review, Crawley v. Warden, Superior Court, Tolland J.D., d.n. CV 07-4001612, (January 3, 2011), Fuger, J. The Appellate Court also affirmed that decision, Crawley v. Comm'r of Corr., 141 Conn.App. 660, 62 A.3d 1138 (2013); cert. denied, 308 Conn. 946, 68 A.3d 656 (2013).
The petitioner also filed four subsequent habeas petitions, all of which were dismissed, Crawley v. Warden, Superior Court, Tolland J.D., d.n. CV 13-4005457 (July 24, 2013), Newson, J.; Crawley v. Warden, Superior Court, Tolland J.D., d.n. CV 13-4005625 (October 22, 2013), Newson, J.; Crawley v. Warden, Superior Court, Tolland J.D., d.n. CV 14-4005872 (January 27, 2014), Mullins, J.; Crawley v. Warden, Superior Court, Tolland J.D., d.n. CV 14-4006091 (April 8, 2014), Mullins, J.
The present case is the sixth habeas action filed by the petitioner. In his amended petition, the petitioner asserts that his defense counsel, Attorney Donald Freeman, provided ineffective assistance at his criminal trial and that his first habeas counsel, Attorney Hillary Carpenter, provided ineffective assistance in that habeas action. In the return, the respondent raises defenses based on the fact that allegations against Attorney Freeman were presented and adjudicated on the merits in the first habeas decision.
I
Ineffective Assistance of Trial Counsel
The first and second counts allege various instances of ineffective assistance of trial counsel, Attorney Freeman. This claim must be dismissed, pursuant to Practice Book § 23-29(3), because it presents the same grounds for relief denied in his earlier habeas case, namely the ineffective assistance of defense counsel and which are not based on new facts or evidence " not reasonably available at the time of the prior petition." The addition of new specifications of ineffective assistance against Attorney Freeman is insufficient to state new legal ground different from that raised by the previous habeas petition. McClendon v. Comm'r of Corr., 93 Conn.App. 228, 230, 888 A.2d 183 (2006); cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).
Of course, the failure by Attorney Carpenter to assert and prove these specifications of ineffective assistance can form the basis for a claim of ineffective assistance by previous habeas counsel, and the petitioner asserts just such a claim in the present case. Again, this claim provides no basis for habeas corpus relief.
II
Ineffective Assistance of Habeas Counsel
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, that his attorney's performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that habeas counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional practices. 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.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of Strickland test, the petitioner must prove 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 outcome. DaEira v. Comm'r of Corr., 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. Thus, the failure of the petitioner to establish, by a preponderance of the evidence, either the allegations against trial counsel or habeas counsel, or the requisite prejudice as to both the first habeas case and the criminal trial, will defeat a claim for habeas corpus relief in the present action.
Also, in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a subsequent habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel. Id., 835. However, the petitioner's burden becomes a multi-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged. Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel were ineffective, and (2) that his trial counsel was ineffective. Id., (emphasis added). Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the first and second habeas cases were suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different. Id., at 842-43. The Supreme Court described this double layered obligation as " a herculean task." Id., 843.
Specifically, the petitioner alleges that Attorney Carpenter render substandard assistance in the first habeas case by failing to assert specifications of ineffective representation by Attorney Freeman for failing to move to suppress the cocaine seized as a result of a warrantless search of the residential condominium unit designated as 7 Spring Street, Wethersfield, Connecticut; and for incompetent final argument.
The Appellate Court concisely recounted the trial evidence that supported the jury's verdicts:
" On September 5, 2002, Joseph Amato, a detective with the Manchester Police Department who was assigned to the Federal Drug Enforcement Administration, informed Thomas Dillon, then a detective with the Wethersfield Police Department, that the defendant possessed a " large quantity of cocaine." Amato informed Dillon of the defendant's known address in Wethersfield and related information concerning the defendant's automobile and license plate number. During his subsequent investigation, Dillon learned that the defendant's operator's license was suspended.
On September 6, 2002, Dillon conducted surveillance at the Wethersfield address given to him by Amato. Dillon observed the defendant get into his automobile and drive away. At Dillon's request, Christopher Morris, a Wethersfield police officer, stopped the defendant's automobile at a gasoline station and arrested the defendant on a charge of driving with a suspended license. Morris searched the defendant incident to the arrest and found a bag containing 120 smaller bags of cocaine, in a powder mixture, in one of the front pockets of the defendant's pants. The cocaine powder weighed 87.32 grams and consisted of between 17 to 60 percent pure cocaine.
Later that day, Robert Deroehn, a detective with the Wethersfield Police Department, arrived at the defendant's known residence in Wethersfield, 7 Spring Street. There, Deroehn encountered Daniel Hardrick, who owned the residence. Hardrick told Deroehn that the defendant did not live at the residence but that the defendant " stayed there." Hardrick signed a consent form, thereby permitting the police to enter and search the home without a warrant. Amato searched the defendant's room and discovered a postal mailing tube that contained two bags of cocaine, in a powder mixture, in the closet in the defendant's room. One bag contained 26.73 grams of cocaine powder separated into thirty-eight smaller bags. Another bag contained 62.60 grams of cocaine powder and consisted of 72 percent pure cocaine, " State v. Crawley, supra, 550-51.
A.
Attorney Freeman did file a motion to suppress the cocaine seized from both his person and from the condominium unit. The basis for the motion was that the motor vehicle stop and arrest for operating a motor vehicle while his license was suspended was a pretext to conduct a search of his vehicle and his person. Further, the purported illegality of that stop prompted the subsequent search of the residence which then, metaphorically, became fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
On July 14, 2003, both the prosecutor and Attorney Freeman indicated their understanding that the motion to suppress hearing would pertain to both searches.
Attorney Freeman remarked that as to the consent issue regarding the residential search, " I think that'll be contested."
However, at the hearing on the motion, heard on August 12, 2003, Attorney Freeman only presented evidence and argument concerning the unconstitutionality of the motor vehicle stop and the poisoned fruit aspect of the later search. On August 28, 2003, Judge Espinosa denied the motion. She later articulated her reasoning on September 24, 2004. Thus, the lack of consent issue was never addressed.
The petitioner's legal expert, Attorney Vicki Hutchinson, reviewed Attorney Freeman's conduct of the defense in the criminal proceedings. She opined that Attorney Freeman should have challenged whether valid consent was obtained by the police to search the bedroom in the condominium unit in which the cocaine was found. Derivatively, Attorney Hutchinson also concluded that Attorney Carpenter ought to have raised Attorney Freeman's failure to pursue that ground in the first habeas action.
In this case, the legality of the residential search hinged on consideration of the existence of two factual circumstances. First, did the petitioner's stepfather, Daniel Hardrick, consent for the police to search the entire unit; and, if so, did the stepfather have the authority to consent to a search of the bedroom within that unit used by the petitioner.
Daniel Hardrick testified at the present habeas trial that he cannot recall consenting to a search of his residence. Instead, he avowed that the police officers appeared at his door with a slip of paper that he assumed was a search warrant. He did remember signing the document. He also related that the condominium unit had two bedrooms, one of which he and the petitioner's mother used; that the petition often slept in the other bedroom; that the petitioner kept personal belongings in that bedroom; and the petitioner received mail at that address.
Mr. Hardrick's testimony suffered from poor recall about the events that transpired fifteen years ago. The form he signed bears a heading, printed in large, bold capital letters, " CONSENT TO SEARCH FORM." His grandson, Glenn Miller, sixteen years of age at the time, was also at the residence when the police arrived. He served as a witness to his grandfather's signature consenting to the search.
Miller usually stayed at that condominium unit every other weekend. He slept in the " spare" bedroom frequently. Neither Miller nor his grandfather ever solicited the petitioner's permission to do so. When Miller testified about whether the spare bedroom belonged to the petitioner, Miller responded, " I guess you could say that." This is faint endorsement of the petitioner's position at best.
Attorney Hutchinson correctly pointed out that, had Attorney Freeman pressed this issue, the prosecution would have been placed in a position of having to argue against itself. That is, the state would want to demonstrate that the petitioner's connection to the bedroom was tentative and insignificant enough to leave Mr. Hardrick with the prerogative to consent to the search of the bedroom, while simultaneously alleging that the petitioner's nexus to that bedroom was sufficient to prove his possession of the cocaine found therein, beyond a reasonable doubt.
However, that dilemma is a two-edged sword that could cut against the petitioner, also. See United States v. Salvucci, 448 U.S. 83, 87-89, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). It is no constitutional violation for a prosecutor to " simultaneously maintain that a defendant criminally possessed the seized [contraband]" but lacked standing to assert that the place searched was performed illegally, Id., 90. This holding overturned the erstwhile " automatic standing" rule, Id. That rejection equally applies to state constitutional analysis, State v. Brito, 170 Conn.App. 269, 284, 154 A.3d 535 (2017).
It is textbook law that search of a residence without a warrant is presumptively unreasonable, Minnesota v. Carter, 525 U.S. 83, 107-08, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). However, valid consensual searches transcend constitutional barriers to warrantless entries, State v. Azukas, 278 Conn. 267, 277, 897 A.2d 554 (2006). The principle that one individual can legitimately consent to the search of portions of a home and bind another, who would have withheld consent, erects formidable obstacles to success on a motion to suppress, Id., 277-79.
" [T]hird party consent rests on mutual use of the property by persons who have joint access or control for most purposes, so that any of the inhabitants has the right to permit the inspection in his own right, and the others have assumed the risk that any of the cohabitants might permit the common area to be entered, " Id., 277. A houseguest is there with the permission of the host, Id. Despite an expectation of privacy by even temporary residents, " the owner clearly has the authority to consent to the police entry into his house, " Id.
Significant for the scenario in the petitioner's criminal case, " a parent may consent to a police search of a home that is effective against" even an adult child living in the parent's home, Id. " To overcome this authority, the child must establish sufficiently exclusive possession of the room to render the parents' consent ineffective, " Id., 278. In the present matter, the petitioner often used a bedroom in a residence owned and occupied by his mother and stepfather. A strong argument exists that the stepfather in this case would be regarded as equivalent to a parent for application of consent to search principles. At least, that possibility loomed on the horizon for defense counsel in Attorney Freeman's position.
Factors to be weighed in determining whether the child has established exclusive possession of a bedroom in the parents' home include:
1. whether the child pays rent;
2. who owns the home;
3. whether the bedroom door contains a lock;
4. whether the bedroom door was kept closed;
5. whether other members of the family used the bedroom; and
6. " whether other members of the family had access to the room for any reason, " Id., 278 (emphases added).
The petitioner testified at the habeas trial that he had exclusive occupancy of the second bedroom, that the door had a lock, that he kept the door shut, and that he paid some money as rent. On the other side of the scale, Mr. Hardrick granted permission for Glenn Miller to sleep in that bedroom frequently and without consultation with the petitioner beforehand.
It is unclear that the petitioner would have proven exclusive use of that bedroom and that he was empowered to deny access to others. In other words, suppression of the cocaine found in the bedroom was a mere possibility rather than a probability. Pursuit of such a motion by Attorney Freeman would have been a gamble that carried potentially detrimental consequences.
The downside stems from the reality that Attorney Freeman would have opened the door (no pun intended) to testimony from Daniel Hardrick and Glenn Miller at the suppression hearing that could be used against him at the trial, had the motion failed. It is true that a defendant's testimony at a suppression hearing to establish standing cannot be used for substantive purposes at a subsequent trial, Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). However, the holding of Simmons v. United States, supra only vindicates preservation of the right against self-incrimination . Testimony and evidence from other sources presented at the hearing are fair game for the prosecutor to utilize at trial.
Attorney Freeman's goal at trial was to point out to the jurors the absence of evidence directly connecting the petitioner to the cocaine discovered in the spare bedroom, and he relied on the nonexclusive access to and use of the bedroom to create that very doubt. By introducing evidence, other than from the petitioner, at the suppression hearing to show exclusive access for standing and lack of consent purposes, Attorney Freeman might have provided the prosecutor with information capable of undermining the defense of nonexclusivity.
" [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 sound trial strategy, " David N.J. v. Comm'r of Corr., 170 Conn.App. 862, 868, 156 A.3d 55 (2017). The court concludes that the petitioner has failed to satisfy his burden of proving, by a preponderance of the evidence, that Attorney Carpenter was deficient in omitting this specification of ineffective assistance against Attorney Freeman in the earlier habeas case. The court also determines that he has failed to establish that a reasonable likelihood exists that such a motion to suppress, premised on lack of consent, would have succeeded.
B.
The remaining specification of ineffective assistance is that Attorney Freeman conceded during final agreement that the petitioner possessed the bags of cocaine found in the pocket of the pants he wore at the time of his motor vehicle stop and arrest. Attorney Hutchinson opined that this concession amounted to an impermissible elimination of the state's burden of proof on that element of the crime of possession of cocaine with intent to sell.
The court now explores pertinent law governing a criminal defense lawyer's obligations with respect to concessions of responsibility and/or guilt as to a specific offense or a particular element of a given offense. The mere fact that defense counsel acknowledges his or her client's commission of some aspect of the allegations against the client is not ineffective assistance per se, Davis v. Commissioner, 319 Conn. 548, 559-60, 126 A.3d 538 (2015); Florida v. Nixon, 543 U.S. 175, 192, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004); United States v. Jones, 482 F.3d 60, 78 (2d Cir. 2006). The usual two-pronged analysis for ineffective assistance, as set forth in Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies when evaluating such concessions, unless exceptional circumstances exist, Florida v. Nixon, supra, 177. If the exceptional circumstances are present, then the holding of United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), controls, and a habeas petitioner is relieved of the burden of proving that defense counsel's concessions actually prejudiced the petitioner. Id.
Like a confession, defense counsel's concessions during trial or argument are not the " functional equivalent" of a guilty plea, Florida v. Nixon, supra, 188. A guilty plea is more than an admission. Id. A guilty plea relieves the prosecutor of the burden of producing evidence that proves a defendant's guilt beyond a reasonable doubt; it forecloses confrontation and cross examination of witnesses; and it relinquishes an appeal of preplea errors. Id. Acknowledgment by defense counsel of guilty acts by the client do none of these things. The state still bears the same burden of proof; witnesses for the state are still subject to confrontation and cross examination; and trial errors can be preserved for appeal. Id.
The Cronic exception, where prejudice is presumed, is " reserved for situations in which counsel has entirely failed to function as the client's advocate." Id., 189, (emphasis added). To trigger the " automatic prejudice" of the Cronic rule, defense counsel must " entirely [fail] to subject the prosecution's case to meaningful adversarial testing." Id. That " failure must be complete." Id. Indeed, in the Cronic case, the United States Supreme Court ruled that a lack of experience and inadequate trial preparation was insufficient to invoke the doctrine of presumed prejudice. United States v. Cronic, supra, 662-66.
In the present case, Attorney Donald Freeman clearly attempted to perform his duties as the petitioner's legal advocate throughout the petitioner's criminal trial. There was no " complete failure" of representation as required under the Cronic doctrine, supra . The court holds that the petitioner retains his obligation to demonstrate defense counsel's deficient actions or inactions prejudiced him, as set forth under the second prong of the Strickland standard, before he can prevail. See United States v. Jones, supra, at 76.
In United States v. Jones, supra, defense counsel conceded that his client murdered an individual, even though the client disputed that conduct, in order to argue against and avoid conviction for an enterprise-related murder that was a capital offense. The Court of Appeals for the Second Circuit held that, because two witnesses reliably identified the defendant as the killer, contesting that fact in opening argument would have been " doomed" to fail. Id., at 76. Adherence to the client's proposed strategy of complete denial of the murder was " a tactic that would surely have made the jury skeptical of any other defense contention." Id. Applying the Strickland standard, the Court of Appeals stated, " we cannot see that counsel's performance fell below an acceptable professional level or that Jones suffered prejudice as a result of the assistance rendered." Id., at 77.
In Florida v. Nixon, supra, defense counsel gave an opening statement that included the following:
" In this case, there won't be any question, none whatsoever, that my client . . . caused [the victim's] death . . . [T]hat fact will be proved to your satisfaction beyond any doubt." Id., 182. The defense strategy was to admit the murder and, instead, focus the case on whether the death penalty ought to be imposed. Id. This strategy was adopted despite the absence of consent by the client. Id. The tactic was reiterated in closing argument. Id.
The United States Supreme Court recognized that " avoiding execution may be the best and only realistic result possible." Id. 191, (emphasis added). For defense counsel to have done otherwise in that case would have been a " counterproductive course." Id. " In this light, counsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in a useless charade." Id., 192.
Attorney Frank Riccio testified as the petitioner's legal expert at the first habeas trial, and he acknowledged that attempting to deny the petitioner's possession of the bags of putative narcotics retrieved from his person " would be ludicrous." This court concurs.
Attorney Freeman would have forfeited any shred of receptivity to his other arguments that may have existed. All other points would wear the stain of a " lack of candor" exhibited by failure to acknowledge the " obvious." The petitioner has failed to prove either prong of the Strickland standard as to this assertion.
For these reasons, the court denies the amended petition for habeas corpus relief.