Opinion
No. CV04-4000131
March 5, 2010
Memorandum of Decision
The petitioner, James Thomas, alleges in his petition for a Writ of Habeas Corpus filed on September 29, 2004 that his conviction for murder in violation of CGS § 53a-54a(a) was obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of the effective assistance of his trial defense counsel.
This matter came on for trial before this Court on July 27, September 24, 2009 and finally on January 7, 2010 at which time testimony was received from the petitioner, petitioner's trial defense counsel, Atty. H. Jeffrey Beck, Ms. Michelle Deveau, Mr. Ed McKiernan, Ms. Betty Chappelle, Ms. Kathy Chappelle, Ms. Bessie Jones, Attorney John Watson (testifying as an Expert Witness), Ms. Hallie Daniels, Mr. Ricky Irby, Det. Paul Ortiz, Mr. John McNicholas, and Assistant States Attorney John Smirga. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and documentary evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Fairfield entitled State vs. Thomas. He was charged with Murder in violation of CGS § 53a-54a.
2. Attorney H. Jeffrey Beck represented the petitioner at trial and on appeal.
3. As regards the charged crimes, the jury reasonably could have found the following facts. "Teresa Alers knew both the defendant and Henry Goforth, with whom she sold narcotics. She saw the two men together on the evening of October 7, 1999. A dispute ensued that night over money Goforth allegedly owed the defendant. When the defendant demanded payment, Goforth indicated that he had no money. At approximately 6 a.m. on the morning of October 8, 1999, Goforth's body was found under a stairwell outside building fifteen of the P.T. Barnum apartment complex in Bridgeport. Detective Tijuana Webbe of the Bridgeport police department arrived shortly thereafter and observed wounds to the face, head, neck and chest of the body.
4. "That afternoon, Alers, Persons and two other females were seated in a vehicle across from a mini-mart in the complex. They observed the defendant toss a bag into a dumpster adjacent to the mini-mart. After the defendant left, all four headed to the dumpster. Alers testified that they thought that the bag contained narcotics. When they opened the dumpster, they saw the bag on top of a pile of cardboard. Persons opened the bag, looked inside and screamed, "He ain't going to get away with this." Persons took the bag to a police officer nearby, who forwarded it to Webbe. Among the items Webbe discovered in the bag were a handle with a broken blade and a broken knife that had "Goforth" written on it.
5. "Medical examiner Arkady Katsnelson performed an autopsy, which revealed multiple stab wounds to Goforth's body. Notably, Katsnelson found the blade of a knife, which had penetrated Goforth's left lung, lodged completely inside the body. Karen Lamy, a criminalist with the state forensic science laboratory, testified that the blade recovered from Goforth's body and the handle recovered from the bag found in the dumpster were parts of the same knife."
State vs. Thomas, 98 Conn.App. 384, at 385-86 (2006).
6. At trial, the petitioner claimed he was not the murderer.
7. The petitioner, after a trial to the jury, was convicted of all counts.
8. The petitioner was thereafter sentenced by the court, Harper, J., to a total effective sentence of sixty years to serve.
9. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand 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 . . . 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, 229 Conn. 397 at 422-23 (1994). The burden of proof in a habeas petition rests upon the petitioner.
In the instant case, the petitioner alleges that his trial defense counsel was ineffective for failing to present the testimony of a Mr. Alex Sostre, to the jury. The gravamen of the complaint is that had he done so the jury would not have convicted the petitioner of this murder.
While in police custody, Sostre provided a statement to the police that he knew that this murder had been committed by three individuals by the street names of "Cee-Cee," "Boobie," and "Poopalou." Subsequent to this, but prior to the petitioner's trial, Mr. Sostre recanted this statement and stated that he had lied to the police and in fact knew nothing of the murder.
There are other issues raised by the petitioner in his petition, however, the trial in the habeas court revolved around this statement. In general, the petitioner alleges prosecutorial impropriety and Brady violations for not disclosing exculpatory information, ineffective representation on appeal by Atty. Beck, ineffective cross-examination of the witnesses, etc. None of these allegations are found to have any merit and lack any evidence to support them. To the contrary, however, the petitioner and the respondent did agree that the petitioner's right to file for sentence review should and was restored.
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's counsel, the petitioner 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 prejudiced. A failure to prove both, even though counsel's performance may have been substandard, will result in denial of the petition.
In the instant case, the petitioner must first prove that it was deficient performance by Attorney Beck to elect to not call Mr. Sostre as a witness. If so, then the petitioner must next prove that there is a reasonable probability that he would have been acquitted of murder had he done so. Now, it is clear that the decision as to which witnesses to call is a tactical decision that rests within the sound discretion of the trial counsel. In general, a habeas court is admonished not to second guess tactical decisions of counsel, however, such decisions, while entitled to great weight, must, of course, be reasonable decisions.
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. It is an indisputable fact that many times if one had foreknowledge of certain events; different courses might well have been taken. Likewise, a habeas court, knowing the outcome of the trial, "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).
Moreover, "[j]udicial 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 . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984).
The petitioner, in his trial on the habeas petition did not present the testimony of Mr. Sostre that he now says would have been the key to an acquittal. It is true that Mr. Sostre gave an initial statement to the police that he had seen three men, other than the petitioner, murder the victim, Mr. Goforth. This statement formed the basis of the 3rd party culpability defense that the petitioner and his trial defense counsel had initially intended to use. Notwithstanding, Mr. Sostre recanted this statement and indicated that he had lied to the police when he said that he had witnessed the murder. Needless to say, this recantation, on the eve of trial, "took the wind out of the sails" of the 3rd party culpability defense. Petitioner now asserts that his trial defense counsel was ineffective for not calling Mr. Sostre to the witness stand anyway.
Atty. Beck testified that he felt that Mr. Sostre had no credibility and the jury would have believed that he had lied to the police. As a result, he saw no advantage to be gained by putting this witness on the stand. Atty. Watson, testifying as an expert witness, opined that calling Sostre could not have hurt the petitioner in his criminal trial and that it was something that any competent defense counsel would have done. Moreover, Atty. Watson offered that the prior inconsistent statement to the police should have been used as a Whelan statement. This is precisely the type of hindsight that Strickland warns against. In 2010 as this decision is being written, we know that the petitioner has been convicted and sentenced to the maximum sentence. It is hard to see how the result could have been any worse. The argument that trying something because it couldn't hurt is an insufficient basis to grant habeas relief. The burden of proof rests with the petitioner to show that the action that he claims should have been taken would result in a reasonable probability that the outcome would have been different, i.e., an acquittal.
Indeed, this is precisely what Detective Paul Ortiz felt to be the case and testified that they stopped interviewing Sostre after he recanted.
State v. Whelan, 200 Conn. 743, cert. den., 479 U.S. 994 (1986).
The burden of persuasion in a habeas case rests with the petitioner because 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 the state's evidence." Summerville v. Warden, 229 Conn. 397 at 419 (1994). There is, therefore, 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.
This admonition from the United States Supreme Court bears reiteration. "A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged `action might be considered sound trial strategy' . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable and professional judgment." (Citations omitted.) CT Page 6600 Strickland v. Washington, supra, 466 U.S. 689-90. Despite the ardent, and undoubtedly sincere, arguments of petitioner's counsel this court must find the strategic decisions of counsel to be within the acceptable range of performance. There is, therefore, neither deficient performance nor prejudice.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.