Opinion
CV124004627S
07-24-2017
Bernard Smalls #257120 v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Vernon D. Oliver, J.
The petitioner, Bernard Smalls, initiated this petition for a writ of habeas corpus, claiming that his habeas counsel, and through this underlying trial counsel, provided him ineffective legal representation. He seeks an order of this court vacating his convictions and returning the matter to the criminal court with instructions to allow the petitioner to accept the original twenty-five-year plea offer, or to grant the petitioner a new trial. The respondent denies the petitioner's claims. The court finds the issues for the respondent and denies the petition.
I
PROCEDURAL HISTORY
The petitioner stands convicted, after a jury trial, of one count of murder by use of a firearm in violation of General Statutes § 53a-54a(a), one count of risk of injury to a minor in violation of General Statutes § 53-21(a) and criminal possession of a firearm in violation of General Statutes § 53a-217(a). The petitioner elected to have a court trial as to a sentence enhancement via the commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k, and the court found that the state presented sufficient evidence to establish the violation. The petitioner was represented at all relevant times by Attorney Michael Moscowitz. The petitioner was also represented by Attorney Patricia King for several pretrial appearances.
On December 7, 2001, the trial court sentenced the petitioner to a total effective sentence of fifty years of imprisonment. The petitioner's convictions were affirmed on direct appeal. State v. Smalls, 78 Conn.App. 535, 827 A.2d 784, cert. denied, 266 Conn. 931, 837 A.2d 806 (2003). In his direct appeal, the petitioner was represented by Attorney Louis Avitabile. The following findings of the Appellate Court are relevant to a disposition of the instant petition:
[T]he victim, on May 15, 2000, was playing basketball with a group of children while his twelve year old daughter was playing softball on a nearby field. She saw the defendant get out of a car and begin arguing with her father about the basketball game. She ran to her father and stood there while the argument took place. The argument ended when the defendant stated that he was going to a package store to cool down and then drove away.
The defendant came back to the basketball court with a shotgun, with which he killed the victim. The victim's daughter was again playing softball on the nearby field when she noticed that the children on the basketball court were scattering. She saw the defendant get out of his car with the shotgun, and watched as he pulled the trigger and shot her father. She then ran toward them. After her father fell to the ground, the defendant held the gun to her father's head. She yelled, " That's my father, " and the defendant then got in his car and sped away. The child and another witness identified the defendant as the shooter from an array of photographs shown to them by the police.
The police obtained a warrant for the defendant's arrest on June 21, 2000, and he gave the police a sworn, tape-recorded statement on July 5, 2000, when he turned himself in to the police. The statement was introduced into evidence by the state, with two questions and answers having been redacted, at the request of the state, over the objection of the defendant. The defendant's statement contained some exculpatory as well as inculpatory statements as to the murder charge. The exculpatory statements were that the defendant believed that he was acting in self-defense and that he did not want the victim to die.
The defendant did not introduce any evidence, either by way of testimony or exhibits, and did not testify at trial. In closing argument, defense counsel asked the jury to consider closely the defendant's statement. The defense counsel referred to it in connection with a right front parking light of the defendant's car, which the defendant, in his statement, said was broken by the victim when the victim threw a beer can at the car. The only other reference made in the closing argument by the defense to the defendant's statement was that the defendant had stated in it that he needed time after the warrant for his arrest to get himself together so he could turn himself in and tell his side of the story. " The statement is in evidence and you could look at it, " counsel for the defendant told the jury.(Footnotes omitted.) State v. Smalls, supra, 78 Conn.App. 537-38.
The petitioner brought his first habeas petition, last amended on July 30, 2007, alleging claims of ineffective assistance of trial counsel as to Attorney Moscowitz, ineffective assistance of appellate counsel as to Attorney Avitabile and prosecutorial misconduct. The petitioner was represented by Attorney Cheryl Juniewic. The habeas court, Fuger, J., dismissed the petition on December 10, 2009. The petitioner appealed the habeas court's decision, and the petitioner's appeal was dismissed. Smalls v. Commissioner of Correction, 146 Conn.App. 909, 78 A.3d 307 (2013), cert. denied, 311 Conn. 931, 87 A.3d 579 (2014).
The petitioner initiated the present habeas petition on March 12, 2012. In his three-count amended petition, filed on January 20, 2017, the petitioner claims that his first habeas counsel, Attorney Juniewic, was ineffective in failing to: (1) properly raise the claim that trial counsel was ineffective when advising the petitioner not to testify in his own defense; (2) properly raise the claim that trial counsel was ineffective for failing to properly explain the plea offer to the petitioner prior to the commencement of trial and (3) properly raise the claim that trial counsel was ineffective in failing to investigate and prepare an adequate defense. The respondent filed a return on March 3, 2017, leaving the petitioner to his proof.
A trial was held on March 27, 2017, and March 28, 2017, at which the petitioner called Attorney Moscowitz, Attorney Juniewic, Mark Schachter, private investigator, Patrice Nixon, Angie Jackson, Attorney Sebastian DeSantis, attorney expert witness, Assistant State's Attorney David Strollo and the petitioner as witnesses. Both parties presented exhibits to the court.
II
DISCUSSION
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, at 466 U.S. at 694.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, at 466 U.S. at 687. " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, at 466 U.S. at 689.
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, at 466 U.S. at 686.
" The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a 'habeas on a habeas, ' was approved by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition." (Footnote omitted.) Sinchak v. Commissioner of Correction, 126 Conn.App. 684, 686-87, 14 A.3d 343 (2011).
The Appellate Court recently explained that when the Strickland standard is " 'applied to a claim of ineffective assistance of prior habeas counsel, [it] requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . .' Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). 'Therefore, as explained by our Supreme Court in Lozada v. Warden, [ supra, 223 Conn. 834], a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [trial] counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [trial] counsel was ineffective.' . . . Ham v. Commissioner of Correction, 152 Conn.App. 212, 230, 98 A.3d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014). 'We have characterized this burden as presenting a herculean task . . .' Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 227, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013)." Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 438-39, 119 A.3d 607 (2015). Therefore, pursuant to the foregoing case law, in order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of trial counsel, the petitioner must set forth a prima facie case of ineffective assistance of trial counsel.
A
Right to Testify
The petitioner first alleges that Attorney Juniewic was ineffective for failing to raise the claim that Attorney Moscowitz was ineffective when advising the petitioner not to testify in his own defense. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
" It is the right of every criminal defendant to testify on his own behalf; Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); and to make that decision after full consultation with trial counsel. See State v. Davis, 199 Conn. [88], 93, 506 A.2d 86 (1986). Equally axiomatic is the proposition that an accused must take some affirmative action regarding his right to testify. United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985); State v. Paradise, 213 Conn. 388, 405, 567 A.2d 1221 (1990)." Ostolaza v. Warden, 26 Conn.App. 758, 763, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). " While the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 814-15, 837 A.2d 849, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
At the habeas trial, Attorney Moscowitz testified credibly that he advised the petitioner not to testify at trial because the petitioner had made a prior inconsistent statement to the police, and he believed Attorney Strollo, an experienced trial attorney, would effectively use that to cross examine him. Attorney Moscowitz also testified that he had concerns over the petitioner's prior felony conviction which would be before the jury if he testified at trial. Attorney Moscowitz further testified that he advised the petitioner of his concerns, but ultimately left the decision up to the petitioner, and the petitioner chose not to testify pursuant to his advice. The petitioner testified at the habeas trial that he wanted to testify, but he relied on his counsel's advice to not testify. The petitioner was canvassed by the trial court on his right to testify. The petitioner indicated that he understood the right and had discussed his decision not to testify with his counsel. Pursuant to the foregoing, the petitioner exercised his right not to testify after being properly advised by his counsel and canvassed by the trial court. Accordingly, the court finds that the petitioner failed to prove that trial counsel's advice regarding the decision not to testify was deficient.
Moreover, based on the testimony provided at the habeas trial, the court does not find it reasonably probable that the petitioner's testimony relaying his explanation of the incident, combined with the likely cross examination exposing the petitioner's prior inconsistent statement and felony conviction, would have resulted in a more favorable verdict. See Johnson v. Commissioner of Correction, supra, 285 Conn. 575 (finding of prejudice requires " a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance"). As a result, the petitioner has failed to sustain his burden of establishing that Attorney Moscowitz was ineffective as to his advice to the petitioner on his decision to testify, and therefore his claim of ineffective assistance against Attorney Juniewic must be denied.
B
Plea Offer
The petitioner next alleges that Attorney Juniewic was ineffective for failing to present the claim that Attorney Moscowitz was ineffective for failing to properly explain the plea offer to the petitioner prior to the commencement of trial. The petitioner also failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
The United States Supreme Court has held that pretrial negotiations implicating the decision as to whether to plead guilty is a critical stage in criminal proceedings for purposes of the sixth amendment right to effective assistance of counsel. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). " In today's criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always a critical point for a defendant." Missouri v. Frye, supra, 132 S.Ct. at 1407. Similarly, " our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings." (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 723 n.4, 1 A.3d 170 (2010), aff'd, 308 Conn. 463, 68 A.3d 624 (2013). The decision to plead guilty is " ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, 142 Conn.App. 267, 273, 67 A.3d 293 (2013). Because the plea bargaining process is a critical stage in a criminal proceeding, " criminal defendants require effective assistance of counsel during plea negotiations." Missouri v. Frye, supra, 132 S.Ct. at 1407-08; see Lafler v. Cooper, supra, 132 S.Ct. at 1385. " Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him." (Internal quotation marks omitted.) Missouri v. Frye, supra, 132 S.Ct. at 1408.
" Although this decision [to plead guilty] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, supra, 142 Conn.App. 273.
In Missouri v. Frye, supra, 132 S.Ct. 1399, 182 L.Ed.2d 379, the United States Supreme Court held that: " defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Id., 1408. When defense counsel allows an offer to expire without advising the defendant or allowing him to consider it, defense counsel does not render the effective assistance the Constitution requires. Id. " To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) ('[A]ny amount of [additional] jail time has [s]ixth [a]mendment significance')." Missouri v. Frye, supra, 132 S.Ct. at 1409; see also Ebron v. Commissioner of Correction, 307 Conn. 342, 357, 53 A.3d 983 (2012) (to show prejudice in lapsed plea case, petitioner must establish: " (1) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court" (emphasis added)). " In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented." Missouri v. Frye, supra, 132 S.Ct. at 1410.
In the instant matter, all of the credible evidence adduced at the habeas trial clearly demonstrates that the petitioner would not have accepted any plea offer for a murder charge from the prosecuting authority. Attorney Moscowitz testified credibly at the habeas trial that he reviewed with the petitioner the nature and elements of the charges against him, the minimum and maximum sentences he could receive if convicted and what the state would have to prove in order to convict the petitioner of the charges. Attorney Moscowitz also testified that he presented a twenty-five-year offer to the petitioner and advised him to take it, but the petitioner refused to plead guilty unless the charges were reduced from murder to manslaughter, which Attorney Strollo was unwilling to do. The petitioner also testified at the habeas trial that he did not want to plead guilty to a murder charge. Furthermore, Attorney Strollo testified that he was responsible for all decisions regarding the charges the petitioner faced, and he was not willing to reduce the murder charge in this case. As a result, the court finds that Attorney Moscowitz properly conveyed the information regarding the plea offer to the petitioner, and therefore his conduct did not constitute deficient performance. Furthermore, it is not reasonably probable that the petitioner was going to accept the plea offer given the fact that he admitted that he did not want to plead to a murder charge. As a result, the petitioner has failed to sustain his burden of establishing that Attorney Moscowitz was ineffective for failing to properly explain a plea offer, and therefore his claim of ineffective assistance against Attorney Juniewic must be denied.
C
Failure to Investigate and Prepare Adequate Defense
The petitioner also alleges that Attorney Juniewic was ineffective for failing to present the claim that Attorney Moscowitz was ineffective for failing to investigate and prepare an adequate defense. Specifically, the petitioner's petition claims that Attorney Moscowitz was ineffective for failing to call Angie Jackson and Raymond Bowen as witnesses in the petitioner's criminal trial. The petitioner also failed to sustain his burden of proving this claim.
" Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment." (Internal quotation marks omitted.) Morquecho v. Commissioner of Correction, 164 Conn.App. 676, 684, 138 A.3d 424 (2016).
" The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it . . . The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
As to the petitioner's claim regarding counsel's failure to call Raymond Bowen, Mark Schachter, Attorney Amore's investigator, testified at the habeas trial that he had been in contact with Bowen and had plans to transport him to court that day, but that he could not reach him on the day of the trial. Therefore, Bowen was not called as a witness at the habeas trial. As such, this court was unable to determine what additional evidence he might have supplied at the underlying trial. See Bova v. Commissioner of Correction, 162 Conn.App. 348, 361, 131 A.3d 268, cert. denied, 320 Conn. 920, 132 A.3d 1094 (2016). Most importantly, this court was not able to observe and evaluate Bowen as a witness. Finally, the petitioner adduced no credible evidence to rebut the presumption of competence of counsel's strategic decision not to call Bowen. Attorney Moscowitz testified credibly that he hired an investigator and, pursuant to the investigation, determined that he did not need to call any additional witnesses. " [T]he presentation of testimonial evidence is a matter of trial strategy . . ." (Citation omitted; internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn.App. 738, 744, 936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008). Accordingly, the petitioner was unable to demonstrate both deficient performance and prejudice as to this potential witness.
The petitioner's claim regarding counsel's failure to call Angie Jackson is also unavailing. As indicated above, Attorney Moscowitz testified that he conducted a thorough investigation and, based on the information he received, determined that he would not call any defense witnesses. Jackson testified at the habeas trial that although she was with the petitioner during an altercation he had with the victim earlier in the day, she was not a witness to the shooting. Moreover, she did in fact testify at the petitioner's criminal trial as a witness for the prosecution, and her testimony substantively matched the testimony she gave at the habeas trial. " The failure of [trial] counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Dunkley v. Commissioner of Correction, 73 Conn.App. 819, 824, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003). As a result, the petitioner is also unable to demonstrate both deficient performance and prejudice as to this potential witness.
III
CONCLUSION
Accordingly, the petitioner's habeas petition is denied.