Opinion
No. CV07-4001666S
December 14, 2009
HABEAS DECISION
THE COURT: All right. Good afternoon. We are back on the record following a break in regard to Mr. Gerald Williams and, as I indicated before, I do want to thank both counsel and Mr. Williams for their patience here over the course of these months, this matter having commenced on October 28 of this year and concluded today, December 14th.
The court is prepared to make the following findings.
Based upon a review of the evidence, which includes a number of exhibits and also the testimony of both Mr. Williams and his former attorney, John Demirjian, the court makes the following findings.
The petitioner, Mr. Gerald Williams, was a defendant in a criminal case with the docket number CR04-201574 in the Superior Court for the Judicial District of Fairfield at Bridgeport. At all relevant times the petitioner was represented by Public Defender John Demirjian of Bridgeport.
Prior to May 2005, the petitioner entered a plea of not guilty and elected a trial by jury. Also, prior to May 10, 2005, the petitioner himself apparently filed some type of motion for speedy trial.
With regard to the trial of the case, this court finds that the trial commenced in May 2005, eventuating on May 12, 2005 with a guilty verdict on certain charges. The trial occurred before the Honorable Judge George Thim. Thereafter, the court, Judge Thim, sentenced the petitioner to a total effective sentence of 40 years incarceration.
The petitioner was convicted after a jury trial on three counts of risk of injury to a minor in violation of Connecticut General Statute Section 53-21(a)(2) and one count of attempted sexual assault in the first degree in violation of Connecticut General Statute Section 53a-49 and 53a-70(a)(2). It's noted that there is a mandatory minimum sentence on the sexual assault offense.
The petitioner unsuccessfully appealed his convictions to the Appellate Court of the State of Connecticut, which affirmed his convictions in a reported decision in State v. Gerald W., 103 Conn.App. 784, 2007.
In addition, the petitioner filed a motion for sentence review before a panel of judges. In a reported decision published March 24, 2009, a three-judge panel comprised of Judges Iannotti, White and Alexander, upon review of the petition, found the sentence imposed neither inappropriate or disproportionate and affirmed the sentence in accordance with Practice Book Section 43-23, et sequentia, and Connecticut General Statute Section 51-194.
The essential facts of the underlying criminal case giving rise to this petition set forth by the appellate court in its summary of the facts as the jury could have reasonably found them to be at page 786, the victims are three minor children, S, the defendant's daughter; P, the defendant's cousin; and T, the cousin of the defendant's girlfriend, and in accordance with Section 54-86e of the Connecticut General Statutes, the court's recitation of the decision, as well as all exhibits admitted during the course of this case have referenced the victims by initials only so as to protect the confidentiality of the minor female victims in accordance with statute.
At the time of the trial, the three victims were age fourteen, fifteen and sixteen, respectively. The victims often would visit the defendant on a weekly basis.
Sometime in December of 2001, when she was eleven years old, the defendant engaged in what would become a pattern of sexual abuse of S, which continued until sometime in early 2003. During some of these visits, the defendant would touch her chest and vaginal area with his penis, finger or hand. On one evening during 2001, when P was eleven, the defendant pulled down her pants and attempted to engage in sexual intercourse. When T was nine years old, she began to visit the defendant and her cousin. During the ensuing five-year period the defendant inappropriately touched both her chest and vaginal area approximately ten times.
After the defendant's conduct was disclosed to the police, the defendant was arrested and charged in a substitute information dated May 5, 2005, with three counts of risk of injury and one count of attempt to commit sex assault in the first degree. The outcome was previously set forth by the court.
With regard to this case, the petitioner, through counsel, by way of amended petition dated July 14, 2008, advances what is known as a claim of ineffective assistance of his former attorney, Mr. John Demirjian.
In review of this case, the court is guided by the legal principles set forth in the principal United States Supreme Court decision of Strickland v. Washington and also the Connecticut case of Ledbetter v. Commissioner of Correction.
A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. To prove deficient performance, a petitioner must show that defense counsel's representation fell below an objective standard of reasonableness. The citations, for purposes of this on bench ruling, are omitted.
Paragraph 11 sets forth the essential allegations here. The petitioner claims, firstly, that Mr. Demirjian was deficient for failing to seek severance of what is termed these trials, considering there were three separate alleged victims and considering the petitioner was charged with one file on the eve of trial.
The court, suffice to say, finds this claim unproven. With regard to this trial, the court had occasion to observe and hear the testimony of the former attorney, Mr. Demirjian. The court notes that in review of Mr. Demirjian's testimony, it's apparent that at the time Mr. Demirjian represented Mr. Williams, Mr. Demirjian was a public defender. He served in that capacity since approximately 1987. He had substantial experience representing individuals accused of crimes, including felonies and misdemeanors, had previously worked in the GA court, and at the time he represented Mr. Williams was working in the JD court. He had prior trial experience involving matters with respect to sexual assault cases; was familiar, therefore, with strategy and the process of proceeding to a trial, including the difficulties that arise in a case involving minor female adolescent witnesses.
It's notable that none of the witnesses that appeared in this trial were under the age of six and seven, and apparently were able to appear in front of a jury not only for direct examination, but also cross-examination by Attorney Demirjian.
Attorney Demirjian did his undergraduate and legal training at the Western New England College. He had practiced in a private practice doing some criminal defense work before becoming a public defender.
The court accredits, or accepts the testimony of Mr. Demirjian that he filed a number of motions while representing Mr. Williams, including a discovery motion, bill of particulars, a motion to suppress and the like. After filing those motions, he obtained the contents of the state's information and charges against Mr. Williams. He obtained a summary of video statements by a number of the complaining witnesses, as well as all documents that supported the state's allegation.
The court finds that Attorney Williams did review the essence and strength of these documents and the allegations against Mr. Williams. The court finds that Mr. Williams indicated to the attorney an understanding of the charges.
With regard to this case, it's notable that this court finds this was one arrest involving three victims, each of whom were in a similar age range, suffice to say, under the age of sixteen, yet over the age of five. And I understand that's a broad range, but what is significant is that each of the allegations, and this is supported by the contents of the presentence investigation report, which is Respondent's A in evidence, all involve a similar pattern of conduct; and that is the petitioner having approached most, if not all of these individuals who knew him or were related in some way through acquaintance or family, they were all approached in the evening while many were asleep or prepared to go to sleep, and it is at that late hour when the alleged assaults occurred.
The court finds that Mr. Demirjian reviewed and conveyed a plea offer to Mr. Williams which amounted to, in essence, pleas of guilty to three counts of risk of injury in exchange for a sentence of ten years suspended after serving five on each count with a period of 15 years of probation. The court finds that Mr. Williams declined to accept this offer. And notably today, Mr. Demirjian appeared with his file, which is atypical when lawyers are called into this forum, having to recall events of years past, and so it was with a degree of precision that Attorney Demirjian was able to convey certain dates, including a date of the declination of the plea offer and the decision to proceed to trial.
The court accredits the attorney's testimony that Mr. Williams held steadfast on wanting the charges dropped, he wanted the charges nolled, where the prosecutor would no longer pursue them, or a dismissal. That apparently was not in the offing.
Attorney Demirjian described the attitude of Mr. Williams, in all respect, as crazy for not accepting the offer in light of the petitioner's apparent record of conviction for a prior sexual assault in the first degree for which he was incarcerated dating back to the `80s, the record of which is reflected in the PSI and was considered by the sentencing judge in July of 2005 in the course of passing sentence.
Therefore, this court finds that Mr. Williams was not inclined and there's no evidence in the record to suggest that Mr. Williams would have accepted any plea offer as opposed to exercising his right to proceed to trial before a jury.
With regard to the issue of severance, as Attorney Williams noted in his testimony — pardon me, Attorney Demirjian noted in his testimony, counsel never considered the issue of filing a motion to sever any of the victims, if you will, from one prosecution. And it's not like it was three cases consolidated on the eve or on the day of trial. This was one case involving three victims, for reasons already indicated, all of which, in the court's view, involved overlapping evidence, a similar modus operandi by the petitioner, and for logical reasons the cases, or case involving three victims was tried together.
Attorney Demirjian pointed to the case of State v. Boscarino, and Boscarino essentially summarizes some of the considerations that a court might view when considering the issue of severance.
In Boscarino, which is cited at 204 Conn. 714, 1987, the Connecticut Supreme Court identified several factors that a trial court should consider in making a determination whether severance is required. The factors include whether the charges involve discreet, easily distinguishable factual scenarios, whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part and the duration and complexity of the trial. If any of these or all of these factors are present, a reviewing court must decide whether the trial court's jury instructions could cure any prejudice. And that's an unrelated point from State v. Ellis.
In any event, it was determined by the attorney that there would be no reason under the Boscarino principles to move for severance, and this court cannot conclude that had counsel filed such a motion the issue would have been debatable among reasonable jurists. In plain speak, it's not likely any judge would grant severance where, based upon the evidence adduced at trial, there's no prejudice to the petitioner and, indeed, matters of not only judicial economy, but logic would militate in favor of having one trial with the three victims. So the court finds no deficient performance for any failure to move for a severance of the victims.
The petitioner also alleges that counsel failed to seek specific dates from the state to allow the petitioner to present some type of defense of alibi.
Again, the court accredits the testimony of Attorney Demirjian and recognizes through a review of case law that the state and prosecution is able to in broad brush fashion, even in response to a motion for a bill of particulars, to allege a wide variety of dates for the reason that respondent's counsel argued in closing, that many of these types of cases involve minor victims who do not recall a precise date of an alleged offense, but a period of time in a general sense, and there is no reason for this court to conclude that the charging information in some way perpetrated a due process violation on the petitioner or, even if further specificity were advanced, that the outcome of this case would in any way be different. There is neither deficient performance nor prejudice for counsel not moving for further particularity than that which he was apparently granted with regard to the charging dates.
This court finds that the petitioner did not discuss with his attorney any defense of alibi which was meaningful wherein he advanced the identities of any witnesses who could substantiate Mr. Williams' whereabouts during the period of time in question and, therefore, finds this claim to be unproven.
With regard to 11(c), there's an allegation that there was a failure to investigate a defense of alibi, including the fact that the petitioner was not living at an apartment where some of the alleged abuse occurred and there was to some extent claims about a discrepancy involving the testimony of one of the victims about an assault occurring at a particular building, Building 11, at which time the petitioner may not have been residing at that building, but this allegation misapprehends the nature of the claims advanced by the prosecution. There wasn't a claim specifically that the assaults occurred during a time when the petitioner was cohabiting with the victims.
It's clear from a review of the record and the factual summary both at sentencing in evidence, the transcript on July 1, 2005, which is Petitioner's Eight, as well as the presentence report, Respondent's A, that the domicile, or location of where Mr. Williams would lay his head at a particular evening changed from time to time and, therefore, any discrepancy in any building identification does not advance any defense of alibi, where essentially what this case boiled down to, as most do with respect to sexual assault, and in this instance Mr. Williams testified, the jury is asked to view and evaluate the credibility of the complaining witnesses, the female subjects versus the testimony of the defendant, and the jury is instructed to weigh the issue of credibility. Here the jury did that, and apparently chose to accredit the testimony of the minor female subjects and not accredit the testimony of the petitioner, Mr. Williams.
It's noted in review, as the court may, of the decision on the petition for sentence modification that nowhere in Mr. Williams' testimony did he deny the offenses. He simply indicates a lack of memory, apparently apologizing for his behavior and purportedly taking full responsibility.
In any event, the jury had the opportunity to assess all the witnesses' credibility and believe the three minor females. This court, frankly, accredits the testimony of Mr. Demirjian that it is very difficult, if not insurmountable, for a defense attorney to overcome the evidentiary import of three complainants making similar allegations.
I, in my trial days as an attorney, would describe this in some way as someone trying to stop arrows. If you're in a conflict involving bows and arrows you might stop an arrow or two from piercing your vest, but it's very conceivable that one arrow may slip through and you could be found guilty. That likelihood is increased by the number of witnesses, and even if you could prove success on one victim, it's not likely a jury of disinterested people would conclude that all three of the individuals are in some type of conspiracy to tell an untruth. It's a very, very difficult task, and I think that Mr. Demirjian appreciated that difficulty when he recommended Mr. Williams accept the plea offer, especially in light of his prior history. But, as the record reflects, having a client who was focused on proceeding to trial, there's nothing to suggest that Mr. Demirjian did not act professionally in the course of representing Mr. Williams. This court finds unproven the allegation in 11(c).
With regard to 11(d), it's alleged that the petitioner was not advised of the maximum time he faced. This court, frankly, does accredit the testimony of the attorney that he reviewed not only the strength of the state's case, but also the maximum amount of time which Mr. Williams faced and Mr. Williams was inclined to proceed to trial and take his chances.
The court had an opportunity to gauge the intellectual capacity of Mr. Williams. The court also read the PSI, which reflected Mr. Williams completing, I believe, at least the eighth grade. That notwithstanding, Mr. Williams did not display any inability to comprehend either the questions of his attorney or questions asked of him on cross-examination and the court would find him no less intellectually — or I should say no less intellectually able to comprehend the advice given him by his lawyer back in the Year of 2005.
The petitioner has withdrawn 11(e).
With regard to 11(f), 11(f) is unproven in that this court has already found that counsel reviewed the evidence against Mr. Williams sufficient for him, Mr. Williams, to make an intelligent decision whether to accept a plea offer or proceed to trial, and this court makes a finding that it was Mr. Williams' decision to proceed to trial and take his chances.
With regard to the allegation in 11(g), that counsel was deficient for failing to stop the state from, quote, "submitting irrelevant evidence, including prior uncharged misconduct involving the age of the petitioner's current girlfriend," there is nothing in the record to substantiate or support this claim that the jury was specifically charged on considering any age of the petitioner's former girlfriend, Renee, at the time the petitioner met Renee or was with him on the issue of uncharged misconduct or, if so advised, that any such evidence prejudiced Mr. Williams.
The decision to object to evidence is a tactical one. This court cannot find deficient performance by the absence of the attorney to object to this line of questioning. The decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. That's from Levine v. Manson, 195 Connecticut 636, 648, 1985.
There is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is the result of the exercise of professional judgment. An attorney's line of questioning a witness is clearly tactical in nature.
I would request your attention to the case of Duperry v. Solnit, and also State v. Drakeford, 63 Conn.App. 419, 2001.
With regard to (g) and (f), those are unproven. With regard to (h), that was withdrawn.
11(i) alleges that the jury was somehow given a confusing answer to a question as to whether or not there existed a police report. In evidence is an excerpt from the jury's question in that regard. The petitioner has not proven that the court's response to the question posed by the jury was in some way improper.
Indeed, this court finds that Judge Thim's handling of the question was appropriate; that when a jury asks a question about whether or not anything is in evidence, in this case a police report, it is not proper for a court to comment about a particular document or item, drawing attention to it, other than to state that you must decide the case based upon the evidence presented, not what was not presented, and by commenting further, indeed, it could inject some error in the process and there's nothing about the trial court's instruction which has been shown to be deficient, so 11(i) is unproven.
I do want to indicate, in the course of advancing these claims, there was reference made to Desiree and counsel's claimed failure to call Desiree. It's not clear whether this was in the context of alibi. Suffice to say, where it's alleged that counsel should have called a witness, there must be some showing in order to find deficient performance, that in order to prove ineffective assistance of counsel on this basis, the failure of defense 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 asserting or establishing the asserted defense. And that's from State v. Talton, 197 Conn. 280, a 1985 decision of the Connecticut Supreme Court, and this court cannot speculate as to what Desiree would have said had she been called to testify and the decision to not call Desiree is left within counsel's discretion. There's no evidence, again, for this court to conclude that counsel was aware of any favorable information Desiree would have provided and, if called, would have in fact provided it and the court cannot speculate in that regard.
The court notes that deficient performance and prejudice are very high standards to be proven, and, frankly, very difficult ones for any attorney to overcome, and this court makes a finding that there is no deficient performance on the part of Mr. Demirjian and no prejudice, especially in light of the court's finding that Mr. Williams was determined to proceed to trial, was not inclined to accept any offers and, again, it was his decision to proceed to trial.
For all of the foregoing the reasons, the court denies the petition for writ of habeas corpus. Judgment may enter in favor of the respondent.
The petitioner is requested to prepare a judgment file within thirty days should he wish to appeal. I am requesting also that a transcript of this on bench ruling be prepared for my signature. It shall constitute a memorandum of decision.
I would request that notice of appeal rights be prepared for Mr. Williams. The record shall reflect that notice has been prepared and the marshal is serving Mr. Williams and his counsel notice of his rights pursuant to the law.
And with that, this matter is concluded.
Court stands adjourned until 10 a.m. tomorrow morning.
(Whereupon, this case concluded and court was adjourned.)