Opinion
No. 557131
February 9, 2005
MEMORANDUM OF DECISION
By her amended petition filed February 22, 2002, petitioner seeks a writ of habeas corpus claiming ineffective assistance of counsel. For reasons hereinafter stated, the petition is denied.
After trial by jury, on April 22, 1996, petitioner was convicted of two counts of murder in violation of Connecticut General Statutes § 53a-54a(a) and capital felony in violation of Connecticut General Statutes § 53a-54b(8). Subsequently, in the penalty phase of the proceedings, the jury found the existence of both aggravating and mitigating factors, and the court rendered judgment of conviction in accordance with the verdict and imposed a sentence of life imprisonment without the possibility of release on the capital felony count. As a result of such conviction and the sentence imposed, petitioner is now in the custody of respondent serving this sentence.
Petitioner appealed her conviction. In affirming the conviction, the court stated that the trial jury could have found the following facts.
The jury reasonably could have found the following facts. In 1990, the defendant, Janet Griffin, was employed as a housekeeper at the Pico Resort Hotel in Vermont. Gina Coccia, the executive housekeeper at the hotel, was the defendant's supervisor.
The two women became friendly, shared an apartment and subsequently became lovers. In June 1992, Coccia ended her intimate relationship with the defendant. When Coccia terminated the relationship, the defendant became very upset and told Coccia that she wanted it to continue. Around that same time, Coccia and her father purchased a two-family house in Vermont, and the defendant and Coccia moved into that house. There, the two women continued to share a bedroom, but they did not resume an intimate relationship.
Shortly thereafter, while visiting her aunt, Margaret Pugliese in Bloomfield, Connecticut, Coccia met one of the victims, Patricia Lynn Steller. Steller resided at 14 Red Orange Road, Middletown. Coccia and Steller became friends, and Coccia subsequently returned to Connecticut several times to see Steller. Steller and Pugliese also visited Coccia in Vermont two or three times.
In January 1993, Coccia requested that the defendant move out of their apartment by June 1993. The defendant became very emotional, and she stated that she still loved Coccia and did not want to leave. Coccia reiterated that their romantic relationship was over and had been over for some period of time.
In April 1993, Coccia began an intimate relationship with Steller. Although Steller traveled to Vermont to see Coccia on several occasions, she did not stay at the apartment that Coccia shared with the defendant. Instead, Steller stayed at Pugliese's nearby vacation home. Coccia, in turn, frequently visited Steller and stayed at Steller's residence at 14 Red Orange Road, Middletown. Coccia did not inform the defendant of the nature of her relationship with Steller.
In May 1993, the defendant moved into an apartment owned by Natalie Jurgen. At that time, the defendant and Coccia both were employed by The Woods at Killington, another Vermont resort. Although they no longer were roommates, the two women remained friendly and continued to drive to work together. The defendant, however, repeatedly told Jurgen that she still loved Coccia and that she wanted her back.
In the summer of 1993, Coccia decided to leave Vermont and move to Connecticut to be with Steller. Coccia discussed her plans with the defendant, who became very upset. Visibly shaken, the defendant stated that she wanted to resume her relationship with Coccia. The defendant told Coccia that it was all or nothing — she did not want to speak to Coccia again if Coccia was not willing to resume their intimate relationship. Coccia replied that she was sorry, but if it was all or nothing, it would have to be nothing. The defendant subsequently called Coccia, however, and indicated that she wished them to remain friendly.
On August 13, 1993, Coccia left Vermont and moved into Steller's Middletown residence. The second victim, Ronald King, who was Steller's nephew, also lived at that address. Coccia took her dog, a small Pomeranian, with her when she moved to 14 Red Orange Road. Steller's house had a "dog door" in the kitchen, a hatch designed to allow the dog to enter and leave the house unassisted.
Coccia and the defendant remained friendly after Coccia moved to Middletown, and the two women exchanged telephone calls on a regular basis. The defendant, however, resented Steller. On August 23, 1993, she told a coworker that Steller was a "city slut dyke" and that Steller was more or less holding Coccia captive and ruining Coccia's life.
That fall, Coccia and Steller spent two or three weekends at Coccia's Vermont home. On those occasions, the defendant refused to visit Coccia because she did not want to see Coccia with Steller. Instead, the defendant insisted that Coccia come alone to the defendant's apartment.
Coccia and Steller spent the first weekend in October 1993, in Vermont. Before returning to Connecticut, Coccia informed the defendant that she would no longer visit the defendant alone at the defendant's apartment and that, if the defendant wished to see Coccia in the future, she would have to do so at Coccia's home when Steller was present. The defendant replied that she was unsure of what she was capable of doing under those circumstances.
The next afternoon, Monday, October 4, 1993, the defendant and her daughter, Melody Jasmin, unexpectedly arrived at 14 Red Orange Road, having driven to Middletown in a rented car. The defendant told Coccia that she had been shopping in the Middletown area and had decided to stop for a visit. The real purpose of the visit, however, was to see the inside of Steller's house. During the visit, while chatting in the kitchen, Coccia told the defendant a story about having been locked out of the house and having had to crawl into the house through the "dog door."
October 4, 1993, was not the only time the defendant visited Red Orange Road. The defendant and Jurgen had made four trips to Middletown between August 1993, and November 1993. The first trip took place at the end of August, when the defendant asked Jurgen to drive her to Connecticut so that she could see where Coccia and Steller lived. On that trip, the defendant planned to use a magic marker to write epithets on Steller's car. It was dark when the defendant and Jurgen arrived at Steller's house, and the defendant exited Jurgen's vehicle and approached the house. She returned to Jurgen's automobile, however, without having written on Steller's car.
A few weeks later, the defendant again asked Jurgen to drive her to Middletown. The defendant hoped to see where Steller, who was employed at Wesleyan University, worked. Upon arriving in Middletown, Jurgen drove to Wesleyan University. The defendant located Steller's car in a parking lot and photographed it. Jurgen then drove the defendant around the area adjacent to Red Orange Road. As they were driving through that neighborhood, the defendant asked Jurgen questions and took notes regarding routes in and out of the area.
After their second trip to Connecticut, the defendant informed Jurgen that she planned to kill Steller. Nevertheless, in early October 1993, Jurgen drove the defendant to Middletown a third time. The two women again drove around Red Orange Road and a neighboring street, Brush Hill Road. The defendant told Jurgen that she was planning to kill Steller at a stop sign on Brush Hill Road because she wanted Coccia back. The defendant blamed Steller for the breakup of her relationship with Coccia and planned to douse her with ether, set her car afire and stab her.
Approximately one week later, Jurgen and the defendant traveled to Middletown a fourth time. On that trip, Jurgen parked her car several blocks from Steller's home and remained in the car while the defendant walked off in the direction of Steller's house. The defendant returned to Jurgen's car approximately fifteen minutes later, and the two women then drove down Brush Hill Road again before returning to Vermont.
After they had returned from their fourth trip to Connecticut, the defendant again told Jurgen that she planned to kill Steller on Brush Hill Road. She said that a coworker, Gordon "Butch" Fruean, Jr., had agreed to accompany her to Middletown to assist. Jurgen noticed that the defendant had a black cap, gloves and a gun in her bag. The weapon in the defendant's bag, a thirty-two caliber handgun, had been given to Fruean by his father. The defendant told Jurgen she was going to use the gun to kill Steller and asked Jurgen to wish her luck.
The defendant and Fruean thereafter drove to Middletown intending to ambush Steller at an intersection on Brush Hill Road. Steller, however, did not pass through the intersection that night. Fruean became nervous, and he and the defendant returned to Vermont.
The defendant subsequently asked Jurgen to drive her to Middletown again so that she could kill Steller. Jurgen refused. The defendant then made arrangements to pick up a rental car on November 1, 1993.
Before departing for work on November 1, 1993, Steller had erased her telephone answering machine tape and reset the machine, which was located on the kitchen counter. Steller and King then left the Red Orange Road residence together and drove to work at Wesleyan University in Steller's car. Coccia, the last person to leave 14 Red Orange Road that morning, before leaving placed her dog in its cage and checked that the windows and exterior doors were locked.
That same day, November 1, 1993, the defendant picked up the rental car that she previously had reserved, and she and Fruean drove to 14 Red Orange Road. The defendant and Fruean entered the locked house by crawling through the "dog door."
Steller and King returned home from work around 3:30 p.m. and entered the house through the garage. When they went into the kitchen, the defendant and Fruean were already waiting.
The defendant shot and attacked both of the victims as they entered the kitchen. During the scuffle the telephone answering machine located on the kitchen counter was activated and recorded some of the audible portion of the events that were taking place in the kitchen. The defendant shot Steller once and King three times. When the gun had been emptied, the defendant, realizing that the victims were still alive, asked Fruean for assistance. Fruean took a butcher's knife from a knife block located on the kitchen counter and handed it to the defendant, who proceeded to stab Steller and King several times. The defendant also used a serrated paring knife and a carving knife to stab the victims. Realizing that the victims, even then, still were alive, the defendant smashed a ceramic lamp on Steller's head and broke a glass Mason jar over King's head. While striking King, the defendant cut her hand on the glass shards of the broken Mason jar.
The defendant and Fruean left the three bloodstained knives used in the attack at the scene, but took the gun with them. Blood from the defendant's wounded hand subsequently was found on King's clothing, on the wall leading to the front door, on the carpet, on the walkway leading away from Steller's home and in the rental car. Lisa Flagg, a woman visiting a friend in the neighborhood, observed the defendant and Fruean leaving Steller's home at approximately 3:55 p.m. Upon leaving, the defendant and Fruean drove to a nearby pond and threw Fruean's gun into the pond. Fruean's father later identified the gun recovered from the pond as being the gun he previously had given to his son.
When Coccia returned home from work at approximately 5:30 p.m., she found Steller and King dead on the kitchen floor. The stab wounds and the gunshot wound Steller suffered each was sufficient to have caused her death. King's death was caused by a combination of the stab and gunshot wounds. State v. Griffin, 251 Conn. 671, 673-80 (1999).
Petitioner was represented by public defenders James McKay and Richard Kelly in pretrial matters and throughout the trial to verdict. Petitioner has alleged that in representing her, these attorneys were ineffective so as to deprive her of her right to effective assistance of counsel in violation of United States Constitution, Amendment VI and the Connecticut Constitution, Article I, Section 8. Petitioner seeks to have the sentence vacated, a new trial and such other relief as law and equity may require.
As a defendant in a criminal proceeding, petitioner was "constitutionally entitled to adequate and effective assistance of counsel at all critical stages of the criminal proceeding. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). This right arises under the Sixth and Fourteenth amendments to the United States Constitution and Article 1st, § 8 of the Connecticut Constitution." Copas v. Commissioner of Correction, 234 Conn. 139, 153 (1995).
The general standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, supra, 466 U.S. 668. "In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice . . . thus, he must establish not only that his counsel's performance was deficient, but as a result thereof, he suffered actual prejudice, namely, that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome of the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome. Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 592 (1992)." Mercer v. Commissioner of Correction, 51 Conn.App. 638, 640-41 (1999).
"In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial." Id.
Only if the petitioner succeeds in this herculean task will she receive a new trial. Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13 (2001).
The petition alleges that Attorneys McKay and Kelly were ineffective in six separate counts. The first count alleges that petitioner was denied her right to testify at trial due to the actions of her attorneys in that they failed to properly advise her regarding her testimony and failed to make certain she understood the ramifications of her choice not to testify at trial. It is also alleged that the attorneys failed to assure that the medications petitioner was taking did not affect her participation in her defense.
The second count alleges that petitioner's attorneys chose a strategy of pursuing the sentencing phase defense during the guilt phase of trial, thereby foregoing the obligation of presenting a defense to show a reasonable doubt. It is also alleged that the attorneys failed to properly consult and explain to petitioner and receive her approval regarding this strategy. It is alleged that the attorneys made a unilateral decision that subjected petitioner to life in prison without release.
The third count alleges that petitioners' attorneys failed to properly consult and advise her concerning the choice of a three-judge panel or a jury for the trial and sentencing.
In the fourth count, it is alleged that the attorneys failed to file appropriate motions to suppress, and in the fifth count, it is alleged that during the cross examination of Natalie Jurgen, the attorneys alerted the jurors to the fact that petitioner was then incarcerated thereby creating an image that she was considered dangerous thereby prejudicing the jurors against her.
Count six alleges that the attorneys were ineffective thereby failing to present a defense that the crimes were planned and carried out by petitioner's co-defendant, Gordon Fruean, Jr., and that he was the responsible party for the crimes, not petitioner.
I.
Petitioner did not testify at her trial. She now claims that she was denied her right to testify because her attorneys failed to properly advise her regarding her right to testify and the ramifications of her not testifying.
Both Attorneys McKay and Kelly were seasoned attorneys with experience in defending persons in cases where the death penalty was being pursued by the state. They both considered the evidence against petitioner and found that it was overwhelming. Both felt that they should concentrate on the penalty phase and thereby save petitioner's life. They considered it essential that petitioner create a good impression and that her credibility be preserved.
Petitioner gave a number of inconsistent statements concerning her involvement in the offense. Her first statement was that she was not in Connecticut at the time of the crime, but was shopping in Glens Falls, New York. She also stated at one time that she did not recall what happened. Another version she gave was that while she was in the house, men dressed in black entered, killed the victims and spared her and Fruean. At the habeas trial, petitioner gave a more exculpatory version of what occurred. She admitted, however, that she did stab Steller with scissors.
She also testified at the habeas trial that she did not tell her lawyers very much and never gave them the full story as to what happened.
Under the circumstances where the attorneys could not be certain as to what their client would say on the stand and where her testimony could be impeached by prior inconsistent statements, it was not unreasonable for them to advise her not to testify. This was particularly true where the attorneys felt it was essential that petitioner's credibility be maintained.
At the habeas trial, petitioner testified that she informed her attorneys that she wanted to testify and that they advised her against it and that she would not benefit from it. It is now claimed that their advice was faulty and petitioner did desire to testify. As noted above, the advice not to testify was reasonable and, in view of the evidence, has not been shown to be faulty.
During the trial, on April 17, 1996, Attorney Kelly announced that the defendant was resting her case without petitioner's testimony. When the jury had been removed from the courtroom, the trial judge (Miano, J.) stated that he intended to question petitioner concerning the waiver of her right to testify. Attorney Kelly indicated that this would be appropriate.
The judge informed petitioner that she had an absolute right to testify. She responded that she understood this. The discussion continued then as follows:
THE COURT: Okay. And this is a very important right, you can give it up and I want to make sure it's a knowing and intelligent waiver of this right. Have you discussed this topic about whether or not to testify with your attorneys?
THE DEFENDANT: Yes, I have, thoroughly.
THE COURT: Fully.
THE DEFENDANT: Yes.
THE COURT: Fine. And, I think you've already answered the question but I'll ask it anyway; have you had enough time to discuss this topic whether or not to testify with your attorneys?
THE DEFENDANT: Yes, I have, Your Honor.
THE COURT: All right. And are you satisfied with the advice your attorneys have given you?
THE DEFENDANT: Yes, I am.
THE COURT: And do you understand that if you choose not to testify the court will give an instruction, unless requested otherwise by the defense, that the jury can draw no negative inference or they can draw no unfavorable inference from your choosing not to testify; you understand that.
THE DEFENDANT: Yes, I do.
THE COURT: Okay. Is there any question you have of me about the issue of testifying or not testifying?
THE DEFENDANT: No, Your Honor, thank you.
THE COURT: Okay. After hearing everything I've said, do you still wish to choose not to testify?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. And you understand, once the — your side rests, in all likelihood that you will not have that opportunity again, do you understand that?
THE DEFENDANT: Yes, I do.
The judge then went on to find that plaintiff's waiver of her right to testify was made knowingly, intelligently and voluntarily.
In testifying on the habeas petition, petitioner admitted that she understood what the judge was saying.
When all of the credible evidence on the subject is considered, it must be found that petitioner was not improperly denied her right to testify at trial due to the actions of her attorneys or that they improperly advised her concerning her rights. It must also be found that she understood what her rights were and what the ramifications of her decision not to testify would be.
It is also alleged in the first count that the attorneys were ineffective in their representation of petitioner in that they failed to assure that the medication petitioner was taking during the trial did not affect her participation in her defense.
Petitioner suffers from multiple sclerosis and was confined to a wheelchair during the trial. She also suffered from a slipped disc in the neck and was taking pain medication during the trial. She testified at the habeas hearing that she was very unaware during the trial and had problems knowing what was going on.
Attorney Kelly testified that petitioner was taking medication during the trial, but that from his observations she was able to proceed with the trial and she never mentioned that she was confused. He did not believe that she was unable to proceed with the trial. Attorney McKay also testified that from his observation, petitioner understood what was going on. The attorneys regularly met with petitioner to discuss the case during the trial. They failed to discern any lack of comprehension on her part.
Petitioner never complained of lack of comprehension problems to her attorneys.
The trial judge had opportunity to observe petitioner throughout the trial and questioned her extensively on her waiver of her right to testify. It is reasonable to assume that if the judge noticed any impairment or confusion on the part of petitioner, he would have taken appropriate action.
During the trial, petitioner was examined by a doctor. She did not inform the doctor that the medications were affecting her ability to comprehend what was going on or to assist in her trial. It must be assumed also that the doctor did not notice any impairment on the part of petitioner.
At the habeas corpus trial, no evidence was presented as to what medication petitioner was taking. There was no scientific evidence as to what the effect of the medications that she was taking would have on her cognitive abilities.
It must then be concluded that petitioner has failed to prove that the medication she was taking during the trial had any negative effect on her ability to participate in the trial or that her attorneys were in any way incompetent in this regard.
II. CT Page 2989
Both the petitioner's attorneys considered the evidence against her overwhelming. They felt that by concentrating on the penalty phase of the trial, they could save petitioner's life. In her petition, she has alleged that in pursuing this strategy, the attorneys failed to present a defense to the charges which might have raised a reasonable doubt. She also alleges that the attorneys did not properly consult with her to explain the strategy or receive her approval for it. It is claimed that the strategy employed by the attorneys was a unilateral decision which resulted in petitioner's sentence to a life imprisonment without possibility of release.
Petitioner claims that by pursuing the penalty phase at the expense of the guilt phase, the attorneys denied her the right to a fair trial and a true test of the evidence against her. Counsel for petitioner relies on such cases as U.S. v. Cronic, 466 U.S. 648, in which the United States Supreme Court stated that: "The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adverse testing." Id., 656. In the same case, the court stated ". . . even when no theory of defense is available, if the decision to stand trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond a reasonable doubt." Id., fn. 19.
The Cronic case differs substantially from the case at bar. In Cronic, an inexperienced attorney was appointed to defend a person in a complicated mail fraud case with very limited time for preparation. The issue on appeal was whether ineffective representation should have been inferred from the circumstances. This is not the situation here.
Petitioner also relies on Florida v. Nixon, U.S. Supreme Court, Docket Number 03:931 (December 13, 2004), in which the issue involved a presumption of incompetent representation. As in petitioner's case, the attorney representing Nixon on capital charges determined that the evidence of guilt was overwhelming and he should concentrate on the penalty phase to save his client's life. Unlike the attorneys in the present case, in Nixon, the attorney in his opening statement to the jury acknowledged his client's guilt and urged the jury to focus on the penalty phase of the trial.
Haynes v. Cain, 149 F.3d 1174 C.A. 5 (La.) (1998), also relied upon by petitioner, differs factually from the case at bar. Haynes was charged with first degree murder which could result in the death penalty. The state claimed that Haynes abducted, robbed, raped and tortured the victim before either throwing or forcing her off the roof of a building causing her death. His experienced public defenders concluded that the evidence would likely result in Haynes' conviction. They decided that the best trial strategy would be to admit all of the allegations except the intent to cause death. This would result in a conviction of murder in the second degree, which did not carry the death penalty. In the opening statement, Haynes' attorney informed the jury that it was a terrible thing that his client did, but the evidence would show that his client was guilty only of murder in the second degree.
After the opening statement, Haynes informed the judge that he did not agree with what the lawyers were doing and that he was not guilty of murder in the second degree and he asked that the lawyers not do what they did.
The judge replied that Haynes was represented by excellent lawyers and he was stuck with them.
Petitioner's attorneys never informed the jury that their client was guilty of any crime.
Petitioner also cited Brookhart v. Janis, 348 U.S. 1 (1966); and Wiley v. Sowders, 647 F.2d 642 (6 Cir.) (1981). In Brookhart, the petitioner's attorney agreed to a truncated trial in which the state would only have to make out a prima facie showing of guilt and that he would neither offer evidence nor cross examine witnesses. Brookhart did not agree to this and stated that he would not plead guilty. Id. 6. In the Wiley case, the petitioner's attorney, in closing argument, repeated that Wiley was guilty as charged and guilty beyond a reasonable doubt. This was done without his client's consent. Id. 650.
In the case at bar, although petitioner's attorneys felt that the evidence against their client was overwhelming and that they should concentrate on the penalty phase, their actions were not comparable to those of the defense attorneys in the above-cited cases. The attorneys here endeavored to make the state prove its case beyond a reasonable doubt. They engaged in pretrial discovery. They also filed motions to exclude the audio tape. They argued that a proper foundation had not been laid for its admissibility, that portions of the tape were so inaudible as to render it untrustworthy and that the prejudicial effect of the tape coming before the jury outweighed its probative value.
A review of the trial transcript reveals that during the trial, petitioner's attorneys cross examined witnesses. In particular, Donald Tramoulozzi and Dr. Carol Ladd who testified as expert witnesses on blood grouping and DNA were cross examined to demonstrate the percentage of a population which would fall into the various groups.
Throughout the trial, the attorneys questioned the admissibility of the state's evidence and the chain of custody of exhibits. They also called the witness to testify on petitioner's behalf in an attempt to degrade the state's case.
In final argument, Attorney Kelly reminded the jury of the heavy burden of proof which the state had and pointed out the possible bias and lack of credibility on the part of some of the state's witnesses. It was argued to the jury that the state had failed to prove that petitioner intended to kill both victims or that she did, in fact, kill them.
The attorneys also took exception to portions of the judge's charge which they considered to be unfair to petitioner.
The conduct of attorneys McKay and Kelly in representing petitioner at trial differs substantially from that of the attorneys in the cited cases. Within the limitations available to them, they zealously protected petitioner's right to a fair trial and required the state to prove its case beyond a reasonable doubt.
A review of the evidence presented by the state at trial clearly indicates that petitioner's attorneys conclusion that the state had an overwhelming case which was likely to result in her conviction is reasonable and is supported by substantial evidence. There was evidence that petitioner had a motive to commit the crime. There was also evidence that she planned the crime and that she made several reconnaissance trips from Vermont to Middletown. There was evidence also that she declared that she intended to kill one of the victims. There was evidence that she attempted to get a silencer for the pistol used in the offense. She was identified by a woman in the neighborhood as being at the site of the crime with a man on the afternoon of the killing. Blood found at the scene of the crime and in her rental car was consistent with her blood and DNA groupings. Her voice was also identified on the tape.
The attorneys testified at the habeas corpus trial that they conferred with petitioner throughout the trial and kept her informed of the status of the case and what they intended to do. They stated that there was an ongoing discussion between the attorneys and petitioner to the effect that they were going to concentrate on the penalty phase. At the habeas corpus trial, petitioner denied that this subject was ever discussed with her attorneys and that she never consented to a concentration on the penalty phase.
The record indicates that petitioner has given false and unreliable evidence in the past. The better evidence leads to the conclusion that the strategy of concentrating on the penalty phase was discussed with petitioner and that she assented to it.
Although there is strong evidence that petitioner assented to the concentration on the penalty phase, there is no evidence that she unequivocally consented to this strategy.
In Florida v. Nixon, supra, the defense attorney, unlike in petitioner's case, conceded guilt to the jury, and, as in our case, concentrated on the penalty phase. Nixon never formally assented to this strategy. In reversing the lower court which found ineffective assistance of counsel and ordered a new trial, the Supreme Court stated: "Defense counsel undoubtedly has a duty to discuss potential strategies with the defendant. See Strickland v. Washington, 466 U.S. 668, 688 (1984). But when a defendant, informed by counsel, neither consents nor objects to the course counsel describes as the most promising means to avert a sentence of death, counsel is not automatically barred from pursuing the course. The reasonableness of counsel's performance, after consultation with the defendant yields no response, must be judged in accord with the inquiry generally applicable to ineffective-assistance-of-counsel claim: Did counsel's representation `f[a]ll below an objective standard of reasonableness?'" Id.
Here, although there is strong evidence that petitioner assented to the strategy of concentrating on the penalty phase, there is nothing to indicate that she explicitly gave her consent. If the Strickland rule is applied to the facts here, it must be found that the attorneys strategy of concentrating on the penalty phase was reasonable and that they were not deficient in pursuing it. Also, it has not been established that petitioner suffered any prejudice as a result of the action taken. The only exculpatory evidence presented was petitioner's testimony at the habeas trial. This was only one of the scenarios which she had related to her attorneys. If she did testify in accordance with this latest version, it would have been in contradiction of substantial evidence before the jury and her credibility would have been subject to impeachment by her prior inconsistent statements.
The probability of conviction was great. By pursuing the strategy which her attorneys adopted, petitioner was spared the death penalty.
III.
The third count alleges that petitioner's attorneys failed to properly consult and advise her concerning the choice of a three-judge panel or a jury for trial and sentencing. This allegation has not been briefed and, therefore, will be considered as abandoned. Moulton Brothers, Inc. v. Lemieux, 74 Conn.App. 357, 363 (2002).
Even if the allegations had been proven, there is no evidence that petitioner suffered any prejudice as a result of her trial by jury.
IV.
The fourth count, which alleges that the attorneys failed to file appropriate motions to suppress has not been proven. Motions were properly filed to exclude the tape recording and have previously been discussed in the decision on the second count. No motions were filed concerning the testimony of Lisa Flagg. Mrs. Flagg testified that she identified petitioner as a result of seeing her on television. The identification was not in any way tainted and police activity was not involved. Petitioner suffered no injury as a result of the attorneys failure to move to suppress this identification.
V.
The fifth count of the petition alleges that during the cross examination of Natalie Jurgen, petitioner's attorney alerted the jurors to the fact that petitioner was incarcerated, thereby creating an image that she was considered dangerous and thereby prejudicing the jurors against her.
The fact that a criminal defendant is incarcerated is ordinarily not divulged to the jury. In the past, this has been found to be prejudicial to a defendant. Estell v. Williams, 425 U.S. 501 (1976). Usually courts go to great length to keep the fact that a defendant is incarcerated from the jury.
Natalie Jurgen was an important witness called by the state from Vermont to testify against petitioner in this case. She testified that she drove petitioner from Vermont to Middletown, Connecticut on a number of occasions to scout out where Steller, one of the victims, lived and worked. She also testified that prior to the crime, petitioner had told her she was going to kill Steller. She also testified about a bag with a black cap, gloves and a gun in petitioner's possession. Jurgen testified that she was testifying under a promise of immunity from Connecticut and Vermont. Her credibility was important to the state's case. Attorney Kelly engaged in a long and intensive cross examination designed to impeach that credibility.
Jurgen testified that on November 2, 1993, the day after the crime, she was interviewed at the Rutland, Vermont police department by a Middletown police officer. At that time, she gave a written statement in which she said, under oath, that on November 1, the date of the crime, she saw petitioner about 2:00 p.m. at her home in Vermont. This was clearly exculpatory to petitioner.
On or about February 12, 1994, after first talking to Gina Coccia, Jurgen gave a statement to the Middletown police repudiating the statement given on November 2nd in Vermont. In the new statement, she denied seeing petitioner in Vermont on the date of the crime.
The reason given by Jurgen for her long delay in repudiating her false statement was that she was in fear of petitioner. In an attempt to show that this fear was groundless, Attorney Kelly asked Jurgen, "By the way, how long had Janet Griffin been held in prison on this charge at that time? As of February 12, '94?" It was brought out that petitioner had been taken into custody within two weeks after the crime and that she had remained incarcerated to the time of trial.
It is now claimed that divulging the information that petitioner was incarcerated on the charge of murder and capital felony amounted to ineffective assistance of counsel. In evaluating the attorneys conduct at trial, the court must accord counsel certain latitude when it comes to strategy and tactics. The distracting effect of hindsight must be eliminated in considering the challenged conduct. Henderson v. Commissioner, 80 Conn.App. 499, 504 (2003). Here, the attorney was attempting to impeach the credibility of one of the state's most important witnesses by showing that her fear of petitioner was groundless and, therefore, her testimony was untrue. This trial strategy was not unreasonable.
Also, under the circumstances of this case, it cannot be found that the disclosure of petitioner's status was unreasonable. It is doubtful that the jury was shocked to learn that petitioner was being held in custody on the most serious charges which she was then facing. It cannot be found that petitioner suffered any prejudice as a result of the disclosure to the jury that she was incarcerated.
VI.
In the sixth count, petitioner alleges that her attorneys were ineffective in failing to present a defense that the crime was planned and carried out by her co-defendant, Gordon "Butch" Fruean, and that he was responsible for the crimes, not petitioner. At the habeas corpus trial, petitioner testified that, on the date of the killings, she went to Middletown to visit Steller and that she had no intention to kill anyone. Fruean was brought along only for company. Petitioner did not even know that Fruean had a gun. Petitioner testified that when they entered the house, Fruean began shooting. She heard the shots, but did not actually see the shots being fired. According to her testimony, she was then in a state of shock although she did recall tussling with Steller and stabbing her in the neck with a pair of scissors.
It is now claimed that attorneys McKay and Kelly were deficient in not going forward with the defense that Fruean committed the crime and that petitioner was an innocent bystander.
The claim that Fruean did the killing was only one of the stories given by petitioner to her attorneys. She admitted that she had not been completely forthcoming in this regard to the attorneys. Petitioner has presented no evidence other than her testimony in support of the theory that she was innocent and that Fruean did the killing.
All of the evidence runs counter to the theory which she now claims should have been presented at trial. There is nothing to indicate that Fruean had a motive to kill the victims. There is ample evidence that petitioner did have a motive to kill Steller. She had made a number of visits to Steller's house and place of work to learn where she lived and her route of travel. She told a witness that she intended to kill Steller. Just prior to the crime, there was evidence that she had a gun in her possession and she asked about a silencer for this weapon. Prior to the offense, she has attempted to establish an alibi with Natalie Jurgen.
Under the circumstances of this case, it must be found that petitioner has failed to establish that her attorneys were in any way deficient in not proceeding on this defense that she was innocent and that Fruean caused the deaths. She suffered no prejudice as a result of the attorneys failure to present this defense.
Petitioner has not addressed how her exposure to accessorial liability under Connecticut General Statutes § 53a-8 could have been avoided if this defense had been pursued.
VII.
Considering all of the evidence and all of the claims presented by petitioner, it must be found that in representing petitioner, the attorneys performance did not fall below that required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law. Their representation of petitioner was in no way deficient. As a result of their representation, petitioner suffered no prejudice.
Accordingly, the petition for habeas corpus is denied
Joseph J. Purtill Judge Trial Referee