Opinion
No. CV00-0800455
October 26, 2005
MEMORANDUM OF DECISION
The petitioner, Duane Johnson, inmate #205961, alleges in his petition for a Writ of Habeas Corpus initially filed on July 20, 2000 and amended for the final time on August 18, 2005, that his convictions following a trial to a jury of, inter alia, Murder in violation of CGSA § 53a-54c and 53a-54a(c) and the resultant sentence to 60 years confinement was defective under both the United States Constitution and the Constitution of the State of Connecticut and that as a result he is entitled to have his conviction and sentence set aside.
This petition was initially filed in the Judicial District of Hartford and was subsequently transferred to the Judicial District of Tolland on May 24, 2004.
This habeas petition came on for trial before the Court on October 24, 2005. The Court received testimony from the petitioner and a paralegal, Ms. Deborah McCoy who assisted his trial defense counsel, Attorney Arthur Meisler. In addition, the petitioner's father, Kennard Johnson testified. The Court also received various pieces of documentary material into evidence, including the transcript of the petitioner's criminal trial and the statement he made to the police.
Attorney Meisler was not available to testify in this proceeding having passed away a few years earlier.
After considering all of the evidence presented at the habeas trial, this court concludes that the petitioner has been deprived of the effective assistance of counsel in one very narrow way and will grant limited relief in the form of restoring the petitioner's right to seek sentence review. This court is not otherwise persuaded that the petitioner has met his burden of proving ineffective assistance of counsel as regards the underlying conviction and sentence and will deny those portions of the petition seeking release from confinement and vacation of the conviction.
Findings of Fact
1. The petitioner was a defendant in a criminal cage proceeding in the Judicial District of Windham under Docket No. CR91-0076196 in which he was charged in a twenty-four count information with committing the crimes of: Felony Murder in violation of General Statutes § 53a-54c; Capital CT Page 13351-ms Felony Murder in violation of General Statutes § 53a-54b(1); Burglary in the First degree in violation of General Statutes §§ 53a-101(a) and 53a-8; Larceny in the Third degree in violation of General Statutes §§ 53a-119, 53a-124(a)(2) and 53a-8; and twenty counts of stealing a firearm in violation of General Statutes § 53a-212 and 53a-8.
2. In its decision, the Supreme Court found tint a jury could reasonably have concluded that the following facts were true. "On June 5, 1991, sometime after midnight, the defendant and his brother, Terry Johnson, broke into the Land and Sea Sports Center (sporting goods store) in North Windham. Once inside, Terry loaded a nine millimeter semi-automatic pistol and handed the pistol out the window to the defendant. Terry also passed approximately twenty shotguns and rifles, boxes of ammunition and other merchandise through the window to the defendant, who carried them to Terry's car.
State v. Johnson, 241 Conn. 702 (1997).
3. Meanwhile, [Connecticut State Police Trooper Russell] Bagshaw was patrolling the area near the sporting goods store in his police cruiser. At approximately 3 a.m., the defendant saw [Trooper] Bagshaw's cruiser approaching the sporting goods store and warned Terry Johnson. Terry then climbed out the store's window, grabbed the loaded pistol and waited near the corner of the building. As [Trooper] Bagshaw drove up the driveway toward the store, Terry began shooting at the cruiser. His gunshots hit and fatally wounded [Trooper] Bagshaw. The defendant and Terry then fled."
4. Attorney Arthur Meisler, a special public defender with whom he established an attorney/client relationship, represented the petitioner.
5. The petitioner was presented with three offers by the state for a pretrial agreement. The first was for a sentence of fifty years in exchange for a guilty plea, the second was for a sentence of fifty years with a right to argue for less in exchange for a guilty plea and the third was for a forty-year sentence with the right to argue for less.
6. Despite the advice of Attorney Meisler that he accepted these pretrial offers, the petitioner rejected all three and the case proceeded to trial.
7. The petitioner did not testify at his criminal trial.
8. The case was tried to a jury. The petitioner asserted an affirmative defense of coercion. Notwithstanding, the petitioner was convicted of all of the charges. CT Page 13351-mt
9. Thereafter, the Court, Spada, J. sentenced the petitioner to a term of life imprisonment without possibility of parole.
10. The Supreme Court vacated the petitioner's conviction for Capital Felony Murder and remanded the case back for a re-sentencing.
11. At that time, the petitioner received a total effective sentence of sixty years incarceration.
12. Additional facts will be discussed, as necessary, in subsequent portions of this decision.
Discussion I. The Sentence Review Claim
The petitioner now comes before this Court seeking to have this court set aside his conviction of guilty to the charge of murder in violation of CGS § 53a-54a, and order that his case be returned to the docket for a new trial. In this petition for a writ of habeas corpus, the petitioner is alleging that he was deprived of the effective representation of trial defense counsel as guaranteed by the Sixth Amendment to the United States Constitution. The petitioner complains that his lawyer did not do a good job for him because he failed to perfect an application for sentence review and that there was insufficient evidence to sustain the verdict of guilty that was reached by the jury of his peers. As regards the application for sentence review, it would appear that the petitioner is, indeed, correct in that assertion and is, therefore, entitled to relief on that point.
The state of Connecticut has seen fit to provide that a person who is convicted of a crime should be permitted to seek a review of the sentence that has been duly adjudged by the judicial authority. See CGS § 51-195. Here, the petitioner has been convicted of crimes that ultimately led to the imposition of an effective sentence of sixty years incarceration. Although it is abundantly clear that the length of the sentence was clearly within the maximum permissible sentence and therefore, a fortiori, a legal sentence, the petitioner is nonetheless, through the operation of the statutes of this great state permitted to seek a review of that sentence to determine whether such a sentence was merited under the circumstances of the particular case. As such, it is clear that sentence review serves a valuable function in the administration of justice within the state of Connecticut as it tends to operate as a dampening force upon the unfettered discretion of a trial judge to impose a sentence upon a convicted defendant. Moreover, since a CT Page 13351-mu sentence review panel is free to increase, as well as decrease, a sentence upon a convicted felon it can also serve to operate as a corrective force upon unduly lenient sentencing authorities, it can serve to further dampen out the vagaries inherent in sentencing by disparate individuals. "A hearing before the review division, like the original imposition of sentence after ascertainment of guilt, constitutes a critical stage of the sentencing procedure. The plaintiff was entitled under the federal constitution to `the guiding hand of counsel' at that hearing. (Internal citations omitted.)" Consiglio v. Warden, 153 Conn. 673, 677 (1966). The Consiglio court further opined: "The entire sentence review procedure is sufficiently a part of the original trial so that representation in sentence review proceedings, including any re-sentencing made necessary by the action of the review division, falls within the duty assumed by the attorney of record who represented the accused at the trial and the original sentencing." Lovejoy v. Warden, 1997 Ct. Sup. 1504, 19 CLR 158.
"Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court's acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. Upon imposition of sentence or at the time of revocation of such suspended sentence, the clerk shall give written notice to the person sentenced of his right to make such a request. Such notice shall include a statement that review of the sentence may result in decrease or increase of the term within the limits fixed by law. A form for making such application shall accompany the notice. The clerk shall forthwith transmit such application to the review division and shall notify the judge who imposed the sentence. Such judge may transmit to the review division a statement of his reasons for imposing the sentence, and shall transmit such a statement within seven days if requested to do so by the review division. The filing of an application for review shall not stay the execution of the sentence."
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.
Based upon the evidence submitted before this habeas court, it is clear that Attorney Meisler, for reasons unexplained, failed to perfect the petitioner's sentence review application. He should have done so and the failure to do so is deficient performance. While the outcome of that sentence review is unknown, what is clear is that no action has been taken at all. The prejudice suffered by the petitioner from this deficient performance of duty is not the receipt of any relief in regards to the imposed sentence, but the loss, through no fault of his own, of CT Page 13351-mv the right to have his case heard. Consequently, this Court will restore the petitioner's right to seek sentence review without any opinion as to what action, if any should be taken. The petitioner shall have thirty days from the date of this decision to perfect his request for sentence review.
II. Ineffective Assistance of Trial Defense Counsel
In regard to the other aspects of the petitioner's complaint, it is important at the outset to recognize that this instant proceeding is an action seeking the issuance of a writ of habeas corpus. This case having been tried and appealed to the Connecticut Supreme Court is now in, what has colloquially come to be known as the "court of last resort." A petition for a writ of habeas corpus is, therefore, an application for extraordinary judicial relief in which, contrary to the criminal trial court, the burden of persuasion rests with the petitioner.
This may seem to be difficult for a layman to accept given the oft-repeated phrase that "one is innocent until proven guilty." However, in a habeas corpus proceeding, the petitioner is not innocent and has, in fact been already proven guilty beyond all reasonable doubt. Moreover, a habeas petitioner has more likely than not had the opportunity to have at least one appellate court review the case to determine if there have been any errors of law that were made by the trial court Given that a habeas petition is often called the "court of last resort" it should not be unexpected that the burden of showing an irregularity must now rest with the petitioner.
One must understand that there is 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 our courts have recognized that "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 entitlement to the grant of a writ 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.
The writ of habeas corpus is an ancient and time-honored component of our Anglo-American jurisprudence. "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: `the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is `a writ antecedent to statute, and throwing its root deep into the genius of our common law . CT Page 13351-mw . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I." Fay v. Noia, 372 U.S. 391 at 399 (1963). When the United States achieved independence from England, the writ was embodied in our law as well. "Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a `great constitutional privilege.' Ex parte Bollman and Swartwout, 4 Cranch 75, 95." Ray v. Noia, infra at 400 (1963).
Edward I reigned in England in the late 13th century AD.
Issuance of a writ of habeas corpus is a remedy whose "most basic traditions and purposes are to avoid the grievous wrong of holding a person in custody in violation of the federal constitution and thereby protect individuals from unconstitutional convictions and help guarantee the integrity of the criminal process by ensuring that trials are fundamentally fair." O'Neal v. McAnnich, 513 U.S. 432 at 442 (1995). Moreover, when a court reviews a petition for habeas corpus, "it must decide whether the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. The court does not review a judgment but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722 at 730 (1991). So, the writ of habeas corpus "has been for centuries esteemed the best and only sufficient defense of personal freedom." Lonchar v. Thomas, 517 U.S. 314 (1996).
A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. Moreover, all criminal defendants are entitled to the representation of counsel. The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense." The sixth amendment CT Page 13351-mx right of confrontation and right to counsel is made applicable to the states through the due process clause of the fourteenth amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), respectively. Moreover, the Sixth amendment right to counsel is the right to an effective counsel.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
It is not, and never has been, for the trial defense counsel to make the decisions that a client must make. The defendant decides how to plead, whether to testify, whether to waive the right to trial by jury, etc. Nevertheless, effective representation is crucial. "Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721 (2002). Consequently, an attorney who fails to offer his or her client proper counsel at critical junctures in the trial may well be providing ineffective representation.
In the instant case, the petition alleges that Attorney Meisler was ineffective in the manner in which he discussed a potential pretrial offer from the state with the petitioner and in not adequately explaining the defenses available to the petitioner. This Court is not persuaded that the representation of Attorney Meisler has been deficient in this regard or that the petitioner suffered any sort of prejudice.
As already noted, a criminal defendant is entitled to the representation of trained and competent legal counsel. Notwithstanding, "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1984)." Yarborough v. Gentry, 540 U.S. 1 at 8 (2003). This court sincerely doubts that any defense attorney has ever conducted the perfect criminal trial. However, the law does not demand such representation. In this case, it is clear that Attorney Meisler did provide quality representation. The trial itself lasted some four months, with sixty-four prosecution witnesses and nineteen defense witnesses. The petitioner, despite the egregious and horrendous nature of his crimes, was spared the death penalty.
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 CT Page 13351-my 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).
In regard to prejudice, the petitioner must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, infra at 694. "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).
At the habeas trial, the petitioner took the stand and related a version of the events of June 5, 1991 that differed in some significant ways from the version he told the police in his signed sworn statement and as found by the Supreme Court. Now, the petitioner stated that on the day of June 5th, 1991 he and his older brother, Terry, were involved in stealing car stereos. Later during the evening, Terry drove to the driveway of a deserted home, parked the car and told the petitioner to wait in the car while he went to "pick up some stuff." The petitioner testified that he remained alone in the car listening to the radio for something like forty-five minutes to an hour. At that point, Terry returned to the car and told him he needed help carrying some things back to the car. The petitioner stated that he walked about a hundred yards CT Page 13351-nz and realized that the location where they stopped was a store. The petitioner saw numerous weapons, knives, rifles, and shotguns lying around on the ground. Terry went back into the store crawling through the window that was above a boat upon which the brothers had to stand to get inside the store. The petitioner also got up on the boat looked into the window and helped his brother remove some additional weapons from the store. The petitioner then loaded himself up with the stolen weapons and carried them back to the automobile in which they had arrived. While at the car, the petitioner reports hearing gunshots and he started running back towards the store but never arrived there. He tripped and was met by Terry running back from the store who told him to "come on, we need to get out of here." The petitioner then testified at the habeas trial that they drove back to Terry's home where the weapons were loaded into the petitioner's car who then delivered them to an individual by the name of Scott Ilewicz.
The testimony of the petitioner stands in stark contrast to the statement he gave to the police in which he reported seeing the headlights of Trooper Bagshaw's car as it approached the store. The petitioner in his statement says that he told his brother, Terry, not to shoot the Trooper. Now, the petitioner says that he lied to the police in this statement because that is what Terry told him to say. The petitioner asserts that the truth is what he said in Court during the habeas trial. The petitioner now asserts that there is insufficient evidence for the jury to have convicted him of felony murder. The petitioner also claims to be actually innocent of the crime of murder.
The big problem with this assertion is that even if this Court takes the testimony of the petitioner at face value it still does not absolve him of liability for his part in the murder of Trooper Bagshaw. The events described by the petitioner clearly meet the elements for felony murder and it is abundantly clear that the jury reached the correct decision in finding guilt on that count. Moreover, this evidence was always available to the petitioner since it is his own testimony that he complains was not presented to the jury. The fact that the petitioner made the decision to exercise his constitutional right to silence at his trial cannot be laid at the feet of Attorney Meisler. Moreover, this habeas court expressly finds that even had the petitioner's testimony be presented to the jury at his criminal trial there is no probability that the result would have been any different. Consequently there is no prejudice to the petitioner.
Having admitted to lying to the police in his sworn testimony at the habeas trial does not enhance the petitioner's credibility factor. He tells what he believes is a self-serving story each time he relates what happened that night although the story differs in key aspects.
This Court is aware 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 CT Page 13351-na the state's evidence." Summerville v. Warden, supra. 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. There simply is no basis upon which this Court can conclude that there is any unreliability in the petitioner's conviction. Through his own testimony before this habeas court the petitioner has conclusively proven that he was indeed guilty of felony murder.
As noted in the Memorandum of Decision, the Petition for a Writ of Habeas Corpus is granted in part and denied in part.