Opinion
No. CV 01-0454309 S
August 25, 2005
MEMORANDUM OF DECISION
The petitioner was the defendant in a criminal case in the judicial district of Litchfield. On July 7, 2000, after a jury trial, he was convicted of two counts of sale of a narcotic substance in violation of General Statues Section 21a-278(b), and two counts of sale of a narcotic substance within 1500 feet of a school in violation of General Statues Section 21a-278a(b). He was sentenced by the court (Gill, J.) on September 13, 2000 to a total effective sentence of twenty-four years in person and six years of special parole. The convictions were affirmed on direct appeal. State v. Billy G. Hunt, 72 Conn.App. 875 (2002). The petitioner is presently in the custody of the respondent as a result of his sentence.
The petitioner was represented after his arrest by Attorney Joseph Mirsky. Prior to trial Mr. Mirsky was replaced as counsel by Attorney Gary Mastronardi, who represented the petitioner at trial. Attorney Edward Murnane, who was associated with Mr. Mastronardi, represented the petitioner at sentencing.
The petitioner, by counsel, filed a three-count amended petition on March 30, 2005, and the respondent filed a return on the same date. This court conducted a trial on the petition on May 6 and June 3, 2005. The witnesses were Mr. Mirsky, Mr. Mastronardi, Mr. Murnane and the petitioner.
The Appellate Court opinion stated that the jury reasonably could have found the following facts: CT Page 11738-gv
On May 27, 1999, Detective Brian Boutote, working undercover with the Waterbury regional narcotics task force, entered the Franklin Street Cafe in Torrington, accompanied by a confidential informant, at approximately 10 p.m. Upon entering the bar, which was located within 1500 feet of St. Peter's Elementary School, Boutote purchased two beers and sat down at one of the tables with the informant. After about ten to fifteen minutes, a man and a woman came to Boutote's table and began a conversation with the informant. Boutote sat facing a pool table and could observe the defendant. The informant's back was toward that area of the bar. After Boutote had observed a series of hand to hand drug transactions between the defendant and others at the bar, Boutote left the table and approached the defendant. Boutote showed the defendant a $20 bill and asked, "Can I get a twenty?" whereupon the defendant gave Boutote a small plastic bag with a Hershey kiss design that contained a white powdery substance.
Upon leaving the bar, Boutote met with Officer Jennifer Hayes of the Torrington police department at a prearranged location, where Boutote reported that he made the purchase from the defendant and turned the bag over to Hayes. A subsequent laboratory test revealed that the substance was freebase cocaine.
On June 3, 1999, Boutote again entered the Franklin Street Cafe at about 10 p.m. for the purpose of making a second narcotics purchase from the defendant. The informant did not accompany him on that occasion. Upon entering, Boutote saw the defendant sitting at the end of the bar and approached him. Boutote then gave a $20 bill to the defendant. The defendant, in turn, reached into a bag of Doritos and handed Boutote a small clear plastic bag with a Hershey kiss on it that contained a white powdery substance. The defendant then stood up and looked out a window and noticed the police outside. After telling Boutote that the police were outside, the defendant placed his bag of Doritos behind the bar and walked to the other side of the establishment. Boutote ordered the defendant a drink and then left the bar to meet with Hayes. Boutote turned the bag over to Hayes and informed her that he CT Page 11738-gw had purchased it from the defendant. The substance subsequently was determined to be freebase cocaine.
State v. Hunt, supra 877-78.
The petitioner alleges that the petitioner was denied the effective assistance of counsel in violation of his rights as guaranteed by the United States Constitution in that each of his three attorneys rendered ineffective assistance of counsel. Counts one, two, and three relate to Attorneys Mirsky, Mastronardi, and Murnane, respectively.
The first count alleges that Mr. Mirsky was ineffective in that he did not prepare for trial by obtaining certain reports concerning the petitioner, in that he failed to investigate several witnesses who would have testified that the petitioner was not in Torrington in December 1998, in that he failed to request a bill of particulars regarding the information which would have enabled the petitioner "to prepare and present a meaningful, adequate and proper investigation regarding the information," and in that he failed to request a probable cause hearing knowing that the petitioner had two prior drug convictions and was facing possible life in prison.
The second count alleges that Mr. Mastronardi was ineffective in that he failed to conduct a proper investigation of certain witnesses who would have refuted the claim by a state's witness that he saw the petitioner at the Franklin Street Cafe in January 1999, in that he failed to advise the petitioner of the significance of a hearing to suppress the identification of the petitioner, in that he failed to inform the petitioner of his right to testify, in that he failed to inform the petitioner of his right to present witnesses to refute certain allegations by a state's witness, in the manner in which he handled the hearing on the motion to suppress the petitioner's identification, in that he failed to properly cross-examine a certain witness at the suppression hearing, in that he failed to call as witnesses two Torrington police officers concerning their meeting with a state's witness, in that he failed to inform the petitioner that the state had offered a CT Page 11738-gx pretrial plea bargain consisting of five years incarceration and a plea agreement on the day of trial, in that he failed to inform the petitioner of "his defense and any defense strategies," in that he failed to investigate a certain witness who was present at the Franklin Street Cafe on June 3, 1999, in that he withdrew the motion to suppress identification thereby depriving the petitioner of a fair suppression hearing, in that he "denied" the petitioner the right to testify to refute certain state's evidence, and in that he failed to argue that the revocation of the petitioner's bond was unconstitutional.
The third count alleges that Mr. Murnane was ineffective at sentencing in that he failed to advise the court that the pre-sentence investigation report was outdated, in that he failed to mention the petitioner's involvement with a drug program in 1996, and in that he failed to provide the court with "up-to-date" information concerning the PSI that might have been mitigating factors with respect to sentence.
The petitioner is entitled to receive effective assistance of counsel at trial:
The petitioner's right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. "The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chace v. Bronson, 9 Conn.App. 674, 678, 564 A.2d 303 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263, 573 A.2d 330 (1990). "In order to prevail in a habeas corpus challenge, `the petitioner "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).' Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989)." Sherbo v. Manson, 21 Conn.App. 172, 180-81, CT Page 11738-gy 572 A.2d 378 (1990). "In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal." Magnotti v. Meachum, 22 Conn.App. 669, 674, 579 A.2d 553 (1990); see Biggs v. Warden, 26 Conn.App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense. 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 v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989)." Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct. 512, 108 L.Ed.2d 514 (1989).
"With regard to the performance component of this inquiry, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Aillon v. Meachum, supra, 211 Conn. 357. "The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980). `"What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation." Peoples v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981).' Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985)." Giannotti v. Warden, 26 Conn.App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 CT Page 11738-hz (1992); see also Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; see also Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Williams v. Warden, 217 Conn. 419, 586 A.2d 582 (1991).
Robert Jeffery v. Commissioner of Correction, 36 Conn.App. 216, 218-20.
Attorney Joseph Mirsky testified that he has been practicing law since 1952, that the greater part of his practice involves criminal cases, and that he has represented defendants accused of drug offenses on many occasions. He had represented the petitioner on prior occasions. He filed various pre-trial motions and gave copies of all discovery he received to the petitioner. The petitioner said that his girlfriend would be an alibi witness. Mr. Mirsky questioned the girlfriend at his office and concluded that she would not be an effective witness. The petitioner gave him no other names as potential witnesses. Mr. Mirsky advised the CT Page 11738-ha petitioner that he thought the state had a strong case, that the petitioner should consider pleading guilty, and that he felt he could get the state to agree to a five-year sentence. The petitioner refused to consider a plea and discharged Mr. Mirsky as his attorney over two months before trial. Mr. Mirsky gave his file to Attorney Gary Mastronardi.
Mr. Mastronardi testified that he had been in practice since 1982. He had tried many criminal cases and had negotiated dispositions in hundreds of criminal cases. The petitioner retained him because he was not satisfied with Mr. Mirsky. The petitioner told him about the five-year offer which Mr. Mirsky had mentioned. Mr. Mastronardi conducted an intensive investigation concerning the bar where the alleged sales of drugs took place. The state had brought a nuisance action against the bar. Mr. Mastronardi and his investigator reviewed the very substantial file in the nuisance action, which included many affidavits concerning drug activity at the bar. The petitioner gave him the names of several people who the petitioner felt would be helpful in the defense of the case. They were all checked out by a private investigator. One person who the petitioner felt would give exculpatory evidence, and who Mr. Mastronardi located after considerable effort, ended up as a state's witness. The claim of an alibi was checked out by the investigator and was found to be of no merit. Throughout his representation of the petitioner, Mr. Mastronardi discussed everything with the petitioner and did nothing that was not with his approval. The subject of the petitioner testifying was discussed and they mutually agreed that the petitioner would not testify. Just before trial Mr. Mastronardi told the petitioner that he felt he could get the state to agree to a plea agreement calling for a three- to four-year sentence. The petitioner was not interested in a plea and stated that if he "had wanted to make a deal he would have stuck with Mirsky. I hired you to try the case."
The identification of the petitioner as the seller of the drugs was the main issue in the case. An evidentiary hearing was held on a defense motion to suppress the identification of the petitioner. Mr. Mastronardi advised the petitioner that he did not expect to be CT Page 11738-hb successful in this motion, but that it would be a great discovery device. The hearing did give the defense an opportunity to, in effect, take the deposition of the undercover police officer who was to be the key state's witness in the case. The hearing on the motion was capably and skillfully handled by Mr. Mastronardi. At the conclusion of the evidence on the motion Mr. Mastronardi withdrew it because he knew the motion would be denied, and he had succeeded in getting the police officer's testimony before trial. This court agrees that the motion to suppress would have been denied by the trial court. He then filed a motion to obtain the name of the confidential informant who the hearing had disclosed was with the police officer. This motion was denied. The denial of that motion was one of the principal claims on appeal.
Mr. Murnane testified that he had been practicing law for about two years when he attended the sentencing hearing on September 13, 2000. He was familiar with the case and reviewed the PSI before the hearing. He testified that the petitioner did not mention that the PSI did not include the fact that he had completed a drug program in 1986. Had the petitioner done so then he would have so informed the court, but in the overall context of the case he did not believe it would have affected the sentence. There was no credible evidence in support of the claim that the PSI was outdated or that there was any "up-to-date" information that should been provided.
The petitioner testified in this case. He has a significant criminal record and had been incarcerated for most of the ten-year period prior to his arrest in this case. His testimony was evasive, rambling and inconsistent. Much of his testimony was irrelevant with respect to the claims in his petition. He was not a credible witness. He testified at length about various people that he claimed should have been called as witnesses and why they were important. None of these witnesses testified in the habeas trial and what they might have testified to is total unwarranted speculation.
Following the verdicts on July 7, 2000, the court CT Page 11738-hc increased the petitioner's bail substantially. The petitioner was released when a bond was filed by a professional bail bondsman. Within a few days the court was informed that the bondsman had exceeded his bond authority when he posted the bond. The court then held a hearing where the bond was revoked and a re-arrest warrant authorized. The petitioner was not present at the hearing. Much of the petitioner's testimony concerned his complaints with the process with respect to the calling of the bond. While it is true that the petitioner was not at fault for the problems with the bond, it is also apparent that whatever occurred concerning the bond had no effect on, and no relevance to, the validity of the convictions and the sentence imposed.
The testimony of Mr. Mirsky, Mr. Mastronardi, and Mr. Murnane was consistent and in many respects was supported by the record. The court finds that they were credible witnesses and accepts their testimony.
The court finds that the petitioner has failed to prove that the representation provided by the three attorneys was deficient in any of the ways alleged in the petition. In addition, the court finds that the petitioner has failed to prove that anything that the three attorneys did or failed to do was prejudicial to the rights of the petitioner. Therefore, the petitioner has failed to prove ineffective assistance by any of the three attorneys who represented him.
The amended petition for a writ of habeas corpus is denied.
William L. Hadden, Jr.
Judge Trial Referee CT Page 11738-hd