Opinion
No. CV 05 4000321
August 13, 2008
Memorandum of Decision
The petitioner was tried and convicted in 1998 of felony murder, conspiracy to commit first degree robbery, and use of a firearm in a felony. The court, Ford, J., imposed a net effective sentence of fifty-five years in prison. The Supreme Court affirmed the felony murder and conspiracy convictions but vacated the firearm conviction. State v. Velasco, 253 Conn. 210, 751 A.2d 800 (2000). The state did not retry the firearm conviction, resulting in a reduction of the petitioner's net effective sentence to fifty years in prison. The petitioner has now filed this habeas corpus petition alleging ineffective assistance of his trial counsel, attorney Wayne Keeney, and his appellate counsel, assistant public defender Neal Cone. The court denies the relief sought in the petition.
I
The opinion of the Supreme Court sets forth the following facts that the jury could reasonably have found. "At approximately 10:45 p.m. on December 19, 1996, the defendant and another individual entered Maria's Variety Store in Bridgeport. The two men robbed the store, and one of them shot and killed the owner, Fernando Reis. Several eyewitnesses identified the defendant as one of the assailants who had robbed the store. One witness, Kathryn Curwen, had been standing by the cash register talking with Reis when the defendant and another male, both dressed in black and wearing ski masks, entered the store. According to Curwen, one of the assailants wore a jacket with a black and gold emblem that read `Billion Bay,' the same type of jacket that police later seized from the defendant. Both men were armed, and the defendant waved Curwen back by brandishing a handgun. Curwen heard one of the two men demand money and then heard a gunshot, but she did not see who had fired the shot. Thereafter, the taller of the two assailants put a nine millimeter gun to Curwen's head when a second customer refused to comply with his demand to retreat to the back of the store. After the assailants fled, Curwen called the police.
"Officer Richard Mercado of the Bridgeport police department was patrolling the area on the night of the crime when he observed the defendant walking in the general vicinity of the variety store. The defendant matched the description of the suspect that had been broadcast over Mercado's police radio. Mercado detained the defendant and informed him that he was a suspect. The defendant denied any involvement in the shooting, but acknowledged that he was a member of the Latin Kings street gang. When the defendant was returned to the scene of the crime, Curwen identified him as one of the assailants. Three days later, Curwen singled out the defendant from a photographic array of eight potential suspects, each with black masks drawn over their eyes.
"Jennifer O'Neill, another eyewitness, saw the defendant with another male outside of the store minutes before the shooting. She had stopped at the store to purchase some household items when she noticed two occupants `hunched up' in the back seat of a vehicle parked directly behind hers. Both individuals looked up as she passed the vehicle and she was able to see their faces. As she was returning to her car, she was startled by a popping noise, and turned to see two people dressed in dark clothing and wearing hoods standing by the cash register inside the store. She also observed that the two individuals whom she had noticed minutes earlier were no longer in the vehicle. She did not learn until the next morning that Reis had been murdered. On December 29, 1996, O'Neill identified the defendant from a photographic array as one of the individuals in the car.
"Frank Santos was working in the store on the night of the robbery. He did not notice that two men had entered the store until he heard a gunshot, at which point he fell to the floor to avoid detection. The taller of the two assailants discovered Santos, put a gun to his head, and moved him to the back of the store, while the other assailant stuffed a bag with money from the cash register. As to his emotional state throughout the incident, Santos acknowledged that he was a `manic depressive' who `started seeing flashes [and] got real scared.' He was `upset,' `hysterical' and `crying' throughout the episode.
"According to Santos, the shooter was `a pretty big guy,' about 185 pounds and about six feet tall. He was able to recall `the bigger guy' because of his eyes. The accomplice had a smaller build, with `braids or something sticking out of the hat . . .' Both the shooter and his accomplice had worn black ski masks at the time of the robbery. When the police brought the defendant back to the scene, Santos could not identify the defendant as one of the perpetrators. He cautioned, however, that `I really can't say because they had ski masks on and everything . . .'"
"In addition to these eyewitnesses, Nadine Huertas, a longtime friend of both Reis and the defendant, had seen the defendant at some point in November 1995, with a handgun similar to the one Curwen had described as having been used during the shooting. According to Huertas, when she told the defendant that Reis had spoken harshly about him, the defendant threatened to `leg' Reis, meaning to shoot him in the leg or knee.
"According to Donald Armatino, Jr., a member of the Latin Kings who had been incarcerated with the defendant while the defendant was awaiting trial, the defendant had bragged about the killing and had given him a map that described the type and location of the gun used in the shooting. Armatino had turned the map over to the state police, who later located the gun by following the map to the stairwell of a house in Bridgeport." Id., 214-17.
II
In its return, the respondent alleges the special defense of procedural default with regard to "any claim of ineffective assistance or improper jury instruction by failing to raise these claims at a prior petition for writ of habeas corpus or on appeal." Because the petitioner raises only claims of ineffective assistance, which the appellate courts ordinarily do not consider on appeal; see State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184 (1986); the defense reduces to whether the petitioner has failed to pursue these claims in a prior habeas petition. The return, however, fails to allege "any facts in support of [the] claim of procedural default . . ." as required by Practice Book § 23-30(b) and thus the pleadings are uninformative concerning the identity and content of the prior habeas petition. Accordingly, the court denies the respondent's special defense.
In a posttrial brief, the respondent provides documentary evidence that the petitioner raised both ineffective assistance of trial counsel and ineffective assistance of appellate counsel in a 1998 petition but then, on different dates, withdrew each claim. Even if the respondent had pleaded these facts, and even if the failure to raise a ground in a prior habeas petition constitutes a procedural default; see Mejia v. Commissioner of Correction, 98 Conn.App. 180, 193-97, 908 A.2d 581 (2006) (leaving question open); but see Henderson v. Commissioner of Correction, 104 Conn.App. 557, 570, 935 A.2d 162 , cert. denied, 285 Conn. 911, 943 A.2d 470 (2007) (appearing to apply procedural default to a subsequent habeas); the respondent does not establish the applicability of procedural default in a case, such as this one, in which the petitioner raises but then withdraws the grounds in question.
III A
The petitioner's principal claims of ineffective assistance of trial counsel are that Keeney failed to move to suppress the identifications by Curwen, to cross-examine her properly, and to call an eyewitness identification expert. A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." CT Page 13509 Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). To prove prejudice, the petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458.
The petitioner filed a pretrial brief addressing the evidence that supports his claim. The respondent filed no pretrial brief and submitted a posttrial brief on procedural default only after the court ordered it. The respondent's failure to brief the eyewitness identification issues has hindered review by the court.
Although Keeney did not file a written motion to suppress the identification procedures, his performance was not necessarily deficient in this regard. Keeney did object at trial to the introduction of the photo array. During Curwen's testimony, Keeney objected on the grounds that the array was unfairly suggestive, that it was done after the showup at the scene, and that Curwen picked the petitioner out based only on his eyes. The trial court sustained the objection at that time for lack of foundation. (Exhibit (Ex.) 5, pp. 77-80.) Keeney renewed his objection when the state attempted to offer the photo array through the testimony of the participating officer. Keeney again claimed that the procedure was suggestive and cited the fact that Curwen was not 100 percent certain of her identification. At that point, notwithstanding Keeney's efforts, the court overruled the objection and admitted the array. (Ex. 6, p. 95.)
Even if Keeney had succeeded in establishing that the pretrial identification procedures were unnecessarily suggestive, he could not have prevailed in excluding them from trial unless he also showed that they were unreliable. See State v. Ledbetter, 275 Conn. 534, 547-48, 553, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082 (2006). Thus, the petitioner cannot prove prejudice from any failure of Keeney to pursue this claim further unless he can also show a reasonable probability that an attack on the reliability of the identifications would have been successful. See Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458; Harvey v. Commissioner of Correction, 98 Conn.App. 717, 725, 912 A.2d 497 (2006), cert. denied, 281 Conn. 914, 916 A.2d 55 (2007). That he cannot do. "[R]eliability is the linchpin in determining the admissibility of identification testimony . . . To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime, the [witness's] degree of attention, the accuracy of [the witness's] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification]." (Citation omitted; internal quotation marks omitted.) State v. Ledbetter, supra, 275 Conn. 553.
In this case, the evidence revealed that, at the time of the crime, Curwen saw the suspect from only a few feet away for at least the time that it took him to come over to where she was standing in the store and make a motion for her to move back. (Ex. 5, pp. 59-60.) Although there was no evidence on Curwen's attentiveness to the suspect, and there was some disagreement about her description of the suspect, two officers testified that the suspect fit her description. (Ex. 5, pp. 97-98, 101-02, 129-31.) At the showup, which took place only about ten minutes after the crime, Curwen recognized the defendant because of his eyes and because the clothing he was wearing — a jacket with the black and gold "Billion Bay" emblem on it and a hooded item underneath it with a red design or writing — resembled that from the crime scene. (Ex. 5, pp. 71-74.) At the photo identification, which took place several days after the crime, Curwen was "pretty sure" of her identification of the defendant based on viewing an array of eight persons wearing masks covering all but their eyes. (Ex. 6, pp. 93-94, 100.) Viewing these factors in their totality, Curwen's identification of the petitioner as a suspect in the variety store robbery and killing was a reliable one. While the petitioner has presented arguments as to why the identification was not completely free from doubt, any remaining doubts were properly a matter of the weight for the jury to assign the evidence rather than a matter of its admissibility. See State v. St. John, 282 Conn. 260, 279-81, 919 A.2d 452 (2007) (no abuse of discretion in admitting, based on reliability, showup identification in which witness was about 100 feet from robber initially, then had second view from about sixty to seventy feet, and provided generally accurate description with one inconsistency); State v. Ledbetter, supra, 275 Conn. 553-56 (no abuse of discretion in admitting, based on reliability, showup identification in which witness saw assailants at close range and with high degree of attention, despite fact that witness had been drinking, provided only a general description, and saw assailants for only a few seconds). Accordingly, the petitioner has not proven prejudice from any failure of his trial counsel to file a motion to suppress.
B
Keeney's cross-examination of Curwen was adequate. Keeney brought out that Curwen focused her attention on the gun, that she was nervous, that she could only see the suspect's eyes, and that she could not be certain about his ethnicity. He also elicited that, prior to the showup at the scene of the crime, the police told her that they had a suspect. (Ex. 5, pp. 83-88.) Although the petitioner, with the benefit of hindsight, points to various possible inconsistencies in Curwen's prior statements that Keeney could have brought out, it was reasonable for counsel, during the midst of trial, to conclude that the fact that Curwen may have made inconsistent statements would not have helped persuade the jury that the petitioner did not participate in a felony murder. See State v. Drakeford, 63 Conn.App. 419, 427, 777 A.2d 202 (2001), aff'd on other grounds, 261 Conn. 420, 802 A.2d 844 (2002) ("An attorney's line of questioning on examination of a witness clearly is tactical in nature"). Keeney, in any event, brought out some of these inconsistencies during his closing argument. (Ex. 8, pp. 98-99.) In short, the petitioner cannot establish that Keeney's cross-examination of Curwen "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, supra, 261 Conn. 335; so as to prove deficient performance in this area.
C
Contrary to the petitioner's claim, it was reasonable for Keeney not to retain an expert witness for testimony on the reliability of eyewitness identification. At the time of trial in 1998, the most recent Connecticut appellate authority on point was State v. Kemp, 199 Conn. 473, 475-79, 507 A.2d 1387 (1986). Kemp held that a trial judge did not abuse his discretion in excluding this type of expert testimony because, in general, "the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question." Id., 477. Even today, there is no appellate case law in Connecticut authorizing the admission of such testimony.
The issue is currently before the Connecticut Supreme Court in State v. Outing, SC 17707.
Under these circumstances, the claim that the petitioner had an obligation to retain an eyewitness identification expert for trial was, if not completely contrary to the law in this state, at best a novel claim. "[N]umerous state and federal courts have concluded that counsel's failure to advance novel legal theories or arguments does not constitute ineffective performance . . . Nor is counsel required to `change then-existing law' to provide effective representation . . . Counsel instead performs effectively when he elects `to maneuver within the existing law, declining to present untested . . . legal theories.'" (Citations omitted.) Ledbetter v. Commissioner of Correction, supra, 275 Conn. 461-62.
The petitioner also cannot prove that any failure to call an expert in this area caused the petitioner prejudice. The notions that the petitioner would have been able to produce an eyewitness identification expert for testimony at the trial in 1998, that the trial judge would have allowed testimony from such an expert, that the jury would have credited it, and that, with reasonable probability, the outcome of the trial would have been different — especially in a case where the evidence of guilt was strong — are all matters of speculation. Thus, the petitioner has failed to prove prejudice. The court therefore rejects the ineffective assistance of counsel claims related to the identification issues.
IV
The petitioner's next allegation of ineffective assistance is that trial counsel failed to challenge the omission of the state to specify, in its information, the overt act or acts that supported the charge of conspiracy to commit robbery. There is no merit to this claim. The court credits Keeney's testimony that it would have done more harm than good to raise this issue because the state would likely have responded by identifying numerous possible overt acts that it would have then read to the jury as part of the information, all to the petitioner's detriment. See State v. Boykin, 27 Conn.App. 558, 569-70, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992) (overt act can be done by any of the conspirators). Thus, Keeney had valid strategic reasons for not raising this claim. Further, the petitioner cannot prove prejudice. Because the petitioner's defense to the conspiracy charge was that he did not enter into any agreement to commit the robbery, the nature of the overt act was irrelevant and would not have changed his defense. Thus, the petitioner has not proven this specification of ineffective assistance of counsel.
V
The petitioner's final claim against Keeney is that he was ineffective for failing to object to portions of the jury charge that suggested that all of the charged crimes were specific intent crimes. The petitioner cannot possibly prove prejudice on this claim. If indeed any of the language of the instructions created this impression, then the charge would have imposed a greater burden on the state than required by law. In this situation, the petitioner would have received a more favorable instruction than that to which he was entitled and could not have suffered any cognizable prejudice. See State v. Hackett, 72 Conn.App. 127, 137, 804 A.2d 225, cert. denied, 262 Conn. 904, 810 A.2d 270 (2002). Accordingly, the court rejects the ground of ineffective assistance of trial counsel.
Felony murder, for example, is not a specific intent crime. See General Statutes § 53a-54c.
Contrary to the petitioner's argument, there was sufficient evidence to conclude that the killing occurred in the course of a robbery. As the Supreme Court observed, "the other assailant stuffed a bag with money from the cash register." State v. Velasco, supra, 253 Conn. 216. Thus, this case is not one in which the court instructed on a robbery offense, as the underlying crime in felony murder, for which there was no evidence.
The petitioner has alleged several other specifications of ineffective assistance of trial counsel in count one of the operative second amended petition. The petition has not briefed them in any meaningful way. The court has nonetheless considered them and concludes that they are without merit. See, e.g., State v. Ledbetter, 275 Conn. 534, 579-80, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082 (2006) (special instruction on risks of misidentification that arise when police fail to advise witness that perpetrator's photo may or may not be in the array required only for trials after date of decision in 2005).
VI
The petitioner alleges that assistant public defender Cone rendered ineffective assistance of appellate counsel by failing to brief and argue the claims of error concerning the state's failure to allege a specific overt act and the trial court's references to specific intent in its instructions. Cone did brief and argue three other assignments of error. Cone's advocacy prevailed on the first issue, involving the absence of a jury trial on the firearm charge; State v. Velasco, supra, 253 Conn. 218-36; and provoked a long analysis by the Supreme Court on a second issue involving the court's questioning of and making statements to the defendant and two other witnesses. Id., 236-46. Under these circumstances, it was reasonable for Cone to refrain from adding two more issues, especially of dubious merit. "`While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . ." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). Finally, for the reasons discussed above, the two issues proposed by the petitioner are without legal merit. Thus, the petitioner suffered no prejudice from their omission on appeal.
The petitioner's other allegation against Cone is that he "failed to notify the court of a conflict of interest based upon a grievance the Petitioner filed against [him]." (Second amended petition, count 2, paragraph 18iii.) The habeas trial established, however, that a local grievance panel found no probable cause to support the grievance and a state panel accepted that finding. Because there was thus no substance to the grievance, no conflict of interest existed. See State v. Vega, 259 Conn. 374, 388-91, 788 A.2d 1221, cert. denied, 537 U.S. 836 (2002). Therefore, there was no reason for Cone to notify the court. The petitioner has accordingly failed to prove ineffective assistance of appellate counsel.
VII
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.