Opinion
CV164007713S
03-18-2019
Jaysan YOUNG #350496 v. WARDEN
UNPUBLISHED OPINION
OPINION
Bhatt, J.
The petitioner claims that trial counsel J. Patton Brown III rendered ineffective assistance of counsel. The ineffective assistance is premised on several allegations of deficient performance, namely that counsel failed to: adequately advise the petitioner regarding his plea offer, his likelihood of success at trial, and the evidence; retain, consult, or utilize a defense expert on DNA analysis; and investigate and call several witnesses for the defense.
For the reasons set forth below, the petition is DENIED.
I. FACTUAL BACKGROUND
Jaysan Young was arrested and charged with attempt to commit assault in the first degree in violation of General Statutes § § 53a-59(a)(5) and 53a-49(a)(2), conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-59(a)(5) and 53a-48, risk of injury to a child in violation of General Statutes § 53-21(a)(1), carrying a pistol without a permit in violation of General Statutes § 29-35(a), and criminal possession of a firearm in violation of General Statutes § 53a-217c. A jury found him guilty of all these offenses and the trial court thereafter sentenced him to a total effective sentence of forty-one years’ incarceration. Thereafter, the Sentence Review Division reduced the sentence to twenty-five years’ incarceration. He appealed to our Appellate Court, claiming that the evidence was insufficient to convict him on all the charges and the trial court erred in letting an expert witness testify regarding a supervisor’s confirmation of findings. The Appellate Court affirmed the judgment of conviction. State v. Young, 157 Conn.App. 544, 117 A.3d 944, cert. denied, 317 Conn. 922, 118 A.3d 549 (2015). The Appellate Court’s decision summarizes the salient facts underlying his convictions as follows:
At approximately 3 p.m. on November 21, 2011, Ana Soto and her nephew, Tyvan Gooden, were outside of Soto’s home on Enfield Street in Hartford when Soto observed two men in a driveway down the street, both holding guns. Soto saw one of the two men shooting bullets across the street. Gooden saw both men firing their weapons. Soto hid behind a car as the bullets flew across the street, while Gooden ran up the street away from the two men. From behind the car, Soto observed the men, whom she described as two black men, run toward the back of an apartment building on Enfield Street.
Shortly thereafter, Officer Benjamin Espinosa of the Hartford Police Department, who was on duty as a school resource officer at the Thirman Milner School, received a radio call from a school security guard that shots had been fired in the area of Enfield Street, a block away from the school. After receiving the radio call, Espinosa exited the school building and stood by the front entrance on Magnolia Street, which runs parallel to Enfield Street. Espinosa was notified via radio by the Hartford Police Department’s dispatch operator that there were two possible suspects in the Enfield Street shooting.
After receiving the radio call that shots had been fired, it took "[l]ess than a minute" for Espinosa to exit the school building and reach the front entrance on Magnolia Street. He stood by the front entrance of the school for "about a minute" more before he observed an individual by the corner of a building across the street. The individual then began to walk in the direction of the school, with another individual following right behind him. Espinosa radioed the police dispatch operator to report that he had seen two individuals who might be the suspects. These two individuals were later identified as the [petitioner] and Rashaad Bunkley.
Espinosa observed the [petitioner] and Bunkley walk through the school’s courtyard toward a part of the school that was under construction, where a security officer confronted them and denied them access to the construction zone. The [petitioner] and Bunkley then walked in the opposite direction and entered the school’s cafeteria, where approximately sixty to eighty children were participating in the school’s after-school program.
Espinosa confronted the [petitioner] and Bunkley while they were standing in the cafeteria. One of them told Espinosa that they were at the school to pick up a sibling. Espinosa then instructed the [petitioner] and Bunkley to sit down. Another Hartford police officer entered the cafeteria, and the [petitioner] and Bunkley were handcuffed and detained. They were patted down and no weapons were discovered. While they were detained, Espinosa observed blood on the [petitioner’s] right hand and pants. The [petitioner] and Bunkley were then removed from the cafeteria and taken to an area in front of the school building.
Police detectives brought Soto over to the school to see if she could identify the [petitioner] and Bunkley as the perpetrators of the shooting. She was not able to identify them as the two men she had seen on Enfield Street. Gooden testified at trial that the [petitioner] was not one of the perpetrators of the shooting.
During their investigation into the shooting, the police found nine spent shell casings in front of a house on Enfield Street. Detective Gregory Gorr of the Hartford Police Department’s crime scene division identified the casings as .40 caliber casings from a semiautomatic weapon. The police also discovered two weapons and a black mask underneath the porch of a building on Magnolia Street. The building was near a path that connected Enfield Street to Magnolia Street. Gorr identified one of the weapons as a semiautomatic pistol and the other as a .38 caliber revolver, which contained five spent shell casings. Blood was found on the grip and back strap of the semiautomatic pistol. Gorr observed small cuts on both of the [petitioner’s] hands and used cotton tip swabs to take a sample of the [petitioner’s] blood from the cuts. He also collected the [petitioner’s] bloodstained pants. Additionally, Gorr conducted gunshot residue tests, known as GSR kits, on both the [petitioner] and Bunkley.
The state forensics laboratory tested and analyzed the physical evidence collected by the police. Douglas Fox, a firearms and tool mark examiner, examined and tested the semiautomatic pistol and determined that it was operable. He also determined that the nine spent shell casings found on Enfield Street were all fired from the pistol. Karen Lamy, another employee at the state forensics laboratory, swabbed the pistol for potential DNA samples. She took five swabs— one from a bloodstain on the bottom of the grip area of the pistol, a second from a bloodstain higher up on the grip area, a third from the trigger area, a fourth from the slide area, and a fifth from the exterior of the magazine. Daniel Renstrom, a forensics science examiner at the state forensics laboratory, analyzed the swabs from the pistol and compared them to the [petitioner’s] DNA. He determined that the [petitioner] was a contributor to the DNA mixture from the bloodstain on the bottom of the grip area of the pistol and that the [petitioner] could not be eliminated as a contributor to the DNA from the bloodstain higher up on the grip area. He also found that the [petitioner] could not be eliminated as a contributor to the DNA mixture from the slide area of the pistol or from the exterior of the magazine. The [petitioner] was eliminated as a contributor to the DNA from the trigger area, signifying that the [petitioner’s] DNA was either not present on the trigger or not present to a detectable level. Additionally, Fung Kwok, a forensics science examiner at the state forensics laboratory, analyzed the GSR kit that had been conducted on the defendant. The results of Kwok’s analysis were inconclusive— he was unable to draw any scientific conclusion as to whether the [petitioner] had fired a gun on the day of the Enfield Street shooting.State v. Young, supra, 157 Conn.App. 546-49.
In his amended petition filed on May 31, 2018, the petitioner alleged that Attorney Brown was ineffective in his representation during the pretrial and trial stages, although the petitioner’s allegations focus primarily on the pretrial stage and how counsel’s deficient performance resulted in the petitioner rejecting the state’s plea offer and proceeding to trial. The respondent filed a return, leaving the petitioner to his burden of proof.
II. FINDINGS OF FACT
At all times relevant to the petition Attorney J. Patton Brown III represented the petitioner. However, the petitioner was represented previously by Attorney Fred DeCaprio. Attorney Brown as successor counsel received the discovery shortly after he began representing the petitioner. He reviewed the discovery materials and met with the petitioner to review the matter and develop a defense strategy. He also discussed the case with his investigator.
A critical component of the case against the petitioner was the DNA evidence collected from a weapon. The state contended that weapon was used in the shooting. DNA testing was conducted on five samples taken from a blood stain on the firearm, the grip, the trigger, the slide, and the magazine. The blood stain contained a mixture of DNA to which the petitioner was a contributor. The grip contained a mixture of DNA from which the petitioner could not be eliminated as a contributor. The petitioner was eliminated as a contributor to the DNA on the trigger. Both the slide and the magazine contained mixtures of DNA from which the petitioner could not be eliminated as a contributor. The petitioner, when arrested shortly after the incident at the nearby Milner school, had fresh cuts on his hands, along with some blood and blood on the thigh area of his pants. His hands were swabbed for gunshot residue (GSR) and the results revealed no antimony or barium, which are two of the three components of GSR.
The petitioner’s defense was that he did not commit the charged offenses. The defense theory was that the petitioner was on his way to the school to pick up his niece when shots rang out. The petitioner ran in the same direction as someone else and climbed a fence to get to the school, cutting his hand in the process. The individual who fired the gun handed the petitioner the weapon. The petitioner panicked, first took hold of the gun, and then tossed the gun away and went to the school. The police found that weapon and another under the porch of a nearby residence.
Attorney Brown, based on the petitioner’s defense theory, was not going to challenge that the DNA recovered from the weapon was the petitioner’s. Thus, an independent DNA review would not assist the petitioner’s defense, which was not going to dispute his DNA being on the weapon.
A. PRETRIAL INVESTIGATION AND POTENTIAL WITNESSES
There were no eyewitnesses who identified the petitioner as a shooter or even being present at the site of the shooting. Tyvan Gooden, the apparent focus of the shooting, had known the petitioner for about five to six years and testified for the defense that it was not the petitioner who fired shots. Ana Soto, Gooden’s aunt, saw the two men but could not identify the petitioner, even after she was taken to the school to view the two suspects.
Attorney Brown, who represented the petitioner for approximately four months before trial, used an investigator during the pretrial phase to assist in preparing the petitioner’s defense. However, Attorney Brown also participated in the investigation and went to the crime scene and spoke with at least one of the witnesses, Ana Soto. She could not identify the petitioner. The investigator spoke with the petitioner and other potential witnesses, took a statement from the victim, spoke with the petitioner’s sister about his assistance with picking up his niece after school, visited the scene of the shooting, and tried to find a potential witness listed in the police report who might have favorable information. The petitioner provided names of individuals and potential witnesses to be interviewed. Some of these witnesses were found; others were not.
Tynnetta Muhammad, the petitioner’s sister, had a daughter who attended the Milner school until the fall of 2011. The petitioner would help with picking up his niece at the Milner school. Ms. Muhammad testified that she called the petitioner on November 21, 2011, and asked him to pick up his niece from school. Although her daughter had changed schools several months earlier and the petitioner was unaware of the school switch, she did not tell the petitioner which school to go to. The new school called her to let her know that her daughter had not been picked up, which led her to realize that the petitioner likely in error went to Milner, the former school. She gave this information to Attorney Brown’s investigator and was present for some of the pretrials, as well as the criminal trial itself, where she saw the investigator. According to her, she was not asked if she was willing to testify, but would have testified about the school mix up had she been asked to testify. Attorney Brown could not recall why he did not call her as a witness, though he indicated that he had a reason for not calling her.
Another potential witness was Rashadd Bunkley, who was also detained at the school together with the petitioner. According to Attorney Brown, he could not recall why Bunkley was not called as a witness. Attorney Brown acknowledged that had Bunkley been available to testify that the petitioner was not the shooter and in the area of the school to pick up his niece, that testimony would have been helpful to the defense. Bunkley had given the Hartford Police Department a statement, dated November 21, 2011, in which he acknowledged that he had a gun and fired shots into the air. That statement places Bunkley at the scene of the shooting, firing a few shots into the air to test the gun, fleeing from the scene and tossing the gun behind a garbage can, and then walking to the Milner school. Bunkley’s statement does not mention the petitioner in any way until the very end when Bunkley indicates that he was in the school cafeteria with the petitioner waiting for his niece. In an undated statement to an investigator from the Office of the Chief Public Defender, Bunkley said that the petitioner had nothing to do with the shooting incident. According to Bunkley he fled and, upon exiting the path across from the school, ran into the petitioner. In both statements Bunkley does not indicate anyone else was with him when he fired shots.
Bunkley’s first name is spelled "Rashaad" in our Appellate Court’s opinion. The exhibits submitted to this court, however, spell his name as "Rashadd." This court will use the spelling in the exhibits.
B. DNA EVIDENCE
Attorney Brown, who had experience in cases involving DNA evidence, reviewed the DNA and police reports with the petitioner. While he does not specialize in cases involving DNA evidence, Attorney Brown prepares as necessary for cases involving such evidence. Attorney Brown could not recall if he considered an independent review of DNA, nor if he talked to a DNA forensic laboratory technician about the DNA evidence in this case. According to Attorney Brown, he believes that he conveyed his understanding of DNA evidence to the petitioner during their discussions.
Although there was DNA evidence in this case, the petitioner’s intended defense essentially incorporated the DNA evidence. The petitioner’s explanation for how his DNA ended up on the weapon, coupled with the fact that there were no witnesses who identified the petitioner as a shooter, including the victim who had known the petitioner for several years, led to Attorney Brown viewing the DNA evidence in a context that was not purely incriminatory. Nevertheless, Attorney Brown did harbor concerns that the jury would focus on the DNA evidence despite any cross examination he conducted. All of these dynamics influenced the advice Attorney Brown provided to the petitioner: that he could not recommend a plea offer versus going to trial. Stated another way, Attorney Brown did not know what he would have done had he been in the petitioner’s situation. The petitioner rejected all plea offers and proceeded to trial.
There was an offer rejected by the petitioner when he was represented by Attorney DeCaprio. Thus, he discussed with, and received advice from, two separate attorneys on whether to accept or reject offers in his case. The rejection during the representation by Attorney DeCaprio is not the subject of the instant petition.
At the petitioner’s criminal trial, the jury heard from Daniel Renstrom, the state’s Forensics Science Examiner who compared the DNA from the petitioner’s buccal swab to the DNA recovered from the firearm. Renstrom testified about the DNA testing conducted on five samples: the blood stain on the firearm; the grip; the trigger; the slide; and the magazine. The blood stain contained a mixture of DNA to which the petitioner was a contributor. The grip contained a mixture of DNA from which the petitioner could not be eliminated as a contributor. The petitioner was eliminated as a contributor to the DNA on the trigger. Both the slide and the magazine contained mixtures of DNA from which the petitioner could not be eliminated as a contributor. The petitioner’s hands were observed to have fresh cuts, with blood on his hands, on the thigh area of his pants and on the grip of the weapon.
According to Eric Carita, a Forensic Science Examiner in the DNA Unit at the State Forensic Laboratory who testified at the habeas trial, staff such as himself would be available to defense counsel to go over results in a case. A defense attorney would simply have to call to set up a date to meet and discuss all aspects of DNA and DNA testing. Any questions counsel had would also be answered. Carita explained that the DNA on the pistol grip was a mixture from two individuals, and that the petitioner could not be eliminated as one of those two sources. The DNA from the slide of the gun was a mixture of two individuals. The swab of the stain on the gun was consistent with being the petitioner’s DNA. The exterior of the magazine contained a DNA mixture consistent with being from four individuals. The swab of the trigger was a mixture of DNA from two individuals and the petitioner was eliminated as a contributor to that mixture. Lastly, Carita explained that DNA analysis cannot discern who was the last contributor to a mixture, nor the order in which contributors to a mixture deposit their respective DNA, nor whether the DNA was deposited via primary or secondary transfer.
C. ADVICE REGARDING PLEA OFFERS
The petitioner testified that after Attorney Brown replaced prior counsel, they met once at the correctional facility and in courthouse lockup all other times. The petitioner indicated that he wanted to resolve the matter via a plea during jury selection. Attorney Brown visited him in jail to discuss the plea offer. At the time of the habeas trial, Attorney Brown could not recall with certainty the specific plea offers extended to the petitioner. He did indicate that he was relatively certain of an offer for twelve years to serve, execution suspended after the service of eight years. According to the petitioner, the court-indicated offer was for ten years of incarceration followed by ten years of special parole. The petitioner also indicated that he had one plea offer while represented by Attorney DeCaprio, one offer while represented by Attorney Brown, that both offers were communicated to him by counsel, and discussed and then rejected in open court.
The petitioner’s family wanted him to resolve the matter via a plea. The petitioner had been in presentence confinement nearly two years and did not want to remain in jail much longer before resolving the case. Attorney Brown communicated the offer to the petitioner, discussed the offer with him, and provided his opinions on the offer. Given the petitioner’s statement of innocence, an alternate explanation for his presence near the scene and his DNA on the weapon, no GSR on his hands, Soto’s inability to identify the petitioner and Gooden’s exculpatory statement, Attorney Brown stopped short of telling the petitioner whether he should accept or reject the offer. Instead, he viewed this case as one where there were viable defenses, but also a cause to be concerned that the jury would focus on the DNA evidence. After explaining the ramifications of either decision, he left the decision to the petitioner. Attorney Brown, who expressed familiarity with the case law pertaining to counsel’s advice to clients about accepting plea offers, uses restraint in advising clients to plead or go to trial, because the decision ultimately is made by the client and counsel cannot override a client’s decision on whether to proceed to trial or not.
The petitioner described Attorney Brown’s assessment of the DNA evidence as not being a significant concern to counsel. The petitioner testified that the first time he saw any paperwork relating to the DNA evidence was during the trial when the DNA expert was testifying. The petitioner only knew that the DNA was a mixture, but nothing more about DNA or even what mixture it was. According to the petitioner, Attorney Brown did not discuss trial witnesses with him. The only witness the petitioner knew was Tyvan Gooden, who did not identify the petitioner as one of the two men on Enfield Street. Thus, as described by the petitioner, Attorney Brown believed that while the DNA evidence strongly supported a possession of a firearm charge, any charges involving the actual firing of the weapon were weaker by comparison. The petitioner’s sentence exposure after a trial would depend on the convictions, which in turn depended on how the jury would credit Tyvan Gooden’s testimony that the petitioner was not one of the shooters.
According to the petitioner, Attorney Brown told him that he would not face more than twenty years in prison, as well as that he might get the same sentence as the plea offer if he lost at trial. The petitioner further testified that he did not find out the maximum possible sentence until after he rejected the court-indicated offer of ten years’ incarceration followed by ten years of special parole.
It appears that the maximum exposure stated on the record is incorrect. The transcript reveals that the petitioner was informed his maximum exposure was fifty-five years’ incarceration. In fact, his exposure was sixty years. He was charged with two Class B felonies, one Class C felony and two Class D felonies.
The petitioner’s testimony at the habeas trial reflects that he and Attorney Brown discussed whether to accept or reject the offer and Attorney Brown provided the petitioner with advice as to possible outcomes based on his analysis of the anticipated evidence at trial.
Additional facts will be discussed as necessary to address the petitioner’s specific claims.
III. LEGAL ANALYSIS
A. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Horn v. Commissioner of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016). Thus, because "[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair"; Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (internal quotation marks omitted); "[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, 686.
Two-part test. To determine whether a defendant is entitled to a new trial due to a breakdown in the adversarial process caused by counsel’s inadequate representation at trial, courts apply the familiar two-part test adopted by the United States Supreme Court in Strickland. Skakel v. Commissioner of Correction, 329 Conn. 1, 30, 188 A.3d 1 (2018). A petitioner’s claim that trial counsel’s assistance was so defective as to require reversal of a conviction has two components. "First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Internal quotation marks and citations omitted.) Skakel v. Commissioner of Correction, supra, 30. Without a showing as to both components, it cannot be said that the conviction resulted from a breakdown in the adversary process, rendering the result unreliable. Strickland v. Washington, supra, 466 U.S. 687. However, "a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland v. Washington, supra, 697; State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).
Performance Prong. The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 30-31 (quoting Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)). With respect to the first part of the Strickland test, "the proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington, supra, 466 U.S. 687. "Consequently, to establish deficient performance, the petitioner must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms." Skakel v. Commissioner of Correction, supra, 31. "Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Id.
Prejudice Prong. When defense counsel’s performance is found to not be reasonable, a new trial is required only if there exists "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra, 466 U.S. 694. "The question, therefore, is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38 (quoting Strickland v. Washington, supra, 466 U.S. 694-95).
However, "a [petitioner] need not show that counsel’s deficient conduct more likely than not altered the outcome of the case ... because the result of a criminal proceeding can be rendered unreliable, and thus the proceeding itself unfair, even if errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (Citation omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38 (quoting Strickland v. Washington, supra, 466 U.S. 693-94). The petitioner must establish, instead, that the deficient performance gives rise to a loss of confidence in the verdict. Id. The habeas court’s inquiry must focus on the fundamental fairness of the proceeding and the court must be "concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Strickland v. Washington, supra, 466 U.S. 696.
1. Counsel’s Failure to Adequately Advise Regarding Plea Offers, Likelihood of Success at Trial, and Review Evidence Against Petitioner
In his amended petition, the petitioner alleges that Attorney Brown failed to adequately advise him regarding the plea offer, his likelihood of success at trial, and review the evidence against him.
Pretrial negotiations implicating the decision of whether to plead guilty are a critical stage in criminal proceedings and "plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts." Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995), overruled on other grounds, Carraway v. Commissioner of Correction, 317 Conn. 594, 119 A.3d 1153 (2015). The decision to plead guilty is "ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997). Although the decision to plead guilty is the defendant’s to make, counsel "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." Copas v. Commissioner of Correction, supra, 154; Siemon v. Stoughton, 184 Conn. 547, 556 n.3, 440 A.2d 210 (1981). "It is well-settled that defense counsel have a constitutional duty to convey any plea offers from the government and to advise their clients on the crucial decision whether to accept a plea offer." (Citation omitted; internal quotation marks omitted.) Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013); Barlow v. Commissioner of Correction, 150 Conn.App. 781, 797, 93 A.3d 165 (2014). It is the duty of a criminal defense lawyer to fully advise his client whether pleading guilty "appears to be desirable"; Boria v. Keane, supra, 496; Vazquez v. Commissioner of Correction, 123 Conn.App. 424, 437, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011); and "determine which alternative will offer the defendant the most favorable outcome." Copas v. Commissioner of Correction, supra, 154. Thus, the effective assistance of counsel includes counsel’s informed opinion as to what pleas should enter. Boria v. Keane, supra, 497.
While counsel is required to give his client professional advice, there is no per se requirement that counsel must recommend whether to accept or reject a plea. Purdy v. United States, 208 F.3d 41, 48 (2d Cir. 2000); Barlow v. Commissioner of Correction, supra, 150 Conn.App. 794. Further, counsel must take care not to coerce a client into accepting or rejecting an offer. Vazquez v. Commissioner of Correction, supra, 123 Conn.App. 438. A defendant’s decision to plead or not "should be made by a represented defendant with the adequate professional assistance, advice, and input of his or her counsel." (Emphasis omitted.) Barlow v. Commissioner of Correction, supra, 799-801. Counsel’s advice must be based on "the facts of the particular case and the potential total sentence exposure." Id., 799-801. This advice should include the terms of the plea offer, the strengths and weaknesses of the state’s case and the alternative sentences to which the defendant will most likely be exposed. Purdy v. United States, supra, 208 F.3d 45; Vazquez v. Commissioner of Correction, supra, 438. Counsel "may take into account the defendant’s chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether the defendant has maintained his innocence, and the defendant’s comprehension of the various factors that will inform his plea decision." Purdy v. United States, supra, 45. For instance, a significant disparity between the sentence the defendant might have received had he accepted the state’s offer, and the sentence he actually received after trial, is evidence that he was prejudiced by his attorney’s failure to adequately inform him of his plea options. Cardoza v. Rock, supra, 731 F.3d 178-79. The reasonableness of counsel’s advice will depend on the circumstances of each individual case. Barlow, supra, 795.
In Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the United States Supreme Court held that, to satisfy the prejudice prong of the Strickland test when the ineffective advice of counsel has led a defendant to reject a plea offer, a habeas petitioner "must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed." Id., 164; Ebron v. Commissioner of Correction, 307 Conn. 342, 352, 53 A.3d 983 (2012), cert. denied sub nom, Arnone v. Ebron, 569 U.S. 913, 133 S.Ct. 1726, 185 L.Ed.2d 802 (2013). "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." Missouri v. Frye, 566 U.S. 134, 147, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Mahon v. Commissioner of Correction, 157 Conn.App. 246, 254, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015).
In Connecticut, in order to prove prejudice, a petitioner "need establish only that (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." Ebron v. Commissioner of Correction, supra, 307 Conn. 357.
The petitioner complains that Attorney Brown was deficient in not properly reviewing the evidence against him and improperly advising him of the likelihood of success at trial and the consequences of going to trial and losing. Had he adequately and effectively conveyed all of the above, the petitioner would have chosen to accept the offer.
First, there is no doubt that Attorney Brown informed the petitioner of the offer and discussed it with him. After jury selection was completed, Attorney Brown requested that the court review the plea offer made to the petitioner. Transcript (April 17, 2013), p. 1. Judge Alexander gave the petitioner a weekend to discuss with Attorney Brown whether to accept the offer or not. Attorney Brown visited the petitioner at a correctional facility to do so. On the next day court was in session, Judge Alexander canvassed the petitioner whether Attorney Brown had explained the offer, whether the petitioner understood the offer, and whether he wanted to proceed to trial knowing that his sentence exposure was fifty-five years if convicted of all offenses. The petitioner answered in the affirmative to all of the inquiries. Id., pp. 1-2.
See footnote 3 above.
Second, Attorney Brown’s advice to the petitioner was reasonable. The petitioner alleges that Attorney Brown failed to adequately advise him of his likelihood of succeeding at trial, which depends on counsel’s assessment of the evidence marshalled by the state against the petitioner. In other words, the petitioner alleges that Attorney Brown’s advice about whether the petitioner should accept or reject the offer was deficient because he did not adequately convey the likelihood of success at trial.
The advice given by counsel to the petitioner is dependent on the evidence anticipated at trial. Here, the state’s evidence was a combination of eyewitness testimony and physical evidence. At the time the petitioner rejected the offer, the evidence available to him would have shown that he was physically present near the scene of the crime. He was detained at the nearby Milner school, where one of the eyewitnesses— Ana Soto— was brought in an attempt to make an identification. She was unable to make an identification of the petitioner or the other individual as being involved. The petitioner’s hands were placed inside plastic bags within five to fifteen minutes to prevent any GSR evidence from being compromised and the samples taken from his hands were tested approximately three hours after the incident. The tests only found lead, but no antimony or barium. Although it was possible that the lead was GSR, there could be other sources for lead and that lead can be transferred from one person to another, so that here the test results were insufficient to meet the criteria to confirm that it was in fact GSR. There was DNA evidence which implicated the petitioner as having handled the weapon, but it also eliminated the petitioner from the DNA found on the trigger of the weapon. Finally, Tyvan Gooden had excluded the petitioner as one of the shooters and Rashadd Bunkley had given two statements absolving the petitioner of any involvement.
The petitioner’s defense was that he did not commit the charged offenses. The defense theory was to explain how the petitioner’s DNA was found on the weapon. The credibility of that defense could only be assessed and weighed by a factfinder at trial.
At the habeas trial Attorney Brown testified that, in his opinion, the DNA evidence by itself was harmful to the petitioner, but when viewed in light of the defense and the exculpatory nature of the eyewitness statements, the state’s case with regards to the attempted assault was weak. The petitioner may have been convicted of firearms offenses due to the presence of the DNA, but that was not the charge Attorney Brown was worried about. The petitioner also testified similarly that Attorney Brown indicated to him that the state’s evidence on the attempted assault charge was weak and if he beat the "shooting charge," he would be left convicted of the possession of firearm, which would result in a sentence less than the offer.
The court notes that the petitioner was charged with two weapons offenses: carrying a pistol without a permit in violation of General Statutes § 29-35(a), and criminal possession of a firearm in violation of General Statutes § 53a-217c. At the time of the petitioner’s offenses, both carried a maximum punishment of five years’ incarceration. Thus, under Attorney Brown’s scenario, the petitioner’s potential exposure was ten years’ incarceration, which is the same as the offer as understood by the petitioner, albeit without the period of special parole.
The petitioner faults Attorney Brown for not sufficiently grasping the severity of the DNA evidence and instead downplaying it, giving the petitioner an incorrect sense of the strength of the state’s case. The evidence presented in the habeas trial does not bear out those claims. Attorney Brown was aware that the DNA evidence, in isolation, was harmful to the defense. However, given the defense they intended to raise at trial and the exculpatory testimony of the two eyewitnesses, he assessed the overall strength of the shooting case as weak. When faced with that advice, the petitioner, in his own words, chose to roll the dice. In light of the petitioner’s anticipated defense and the evidence known to Attorney Brown before the start of trial, this court cannot find fault in Attorney Brown’s advice regarding the offer. The claim of ineffective assistance premised on deficient advice must be denied.
2. Failure to Adequately Communicate Before Trial
The petitioner’s next allegation is that Attorney Brown failed to adequately communicate with him before trial, thereby depriving him of the right to assist in his own defense. The court is not persuaded. The evidence shows that Attorney Brown met with the petitioner and reviewed the DNA and police reports with him, as that he conveyed his understanding of DNA evidence to the petitioner. According to the petitioner, he never saw any of the DNA reports until the time of trial when the DNA expert was testifying. The court credits Attorney Brown’s testimony in this regard.
Additionally, the petitioner provided to Attorney Brown or his investigator names of individuals and potential witnesses to be interviewed. Attorney Brown’s investigator followed up on those names, locating some individuals but not others. The evidence also shows that Attorney Brown and the petitioner communicated about the plea offer. Attorney Brown and the petitioner met at least once at a correctional facility and in courthouse lockups at all other times.
Based upon the foregoing, the court concludes that the petitioner has failed to prove that Attorney Brown rendered deficient performance in how he communicated with the petitioner prior to trial.
3. Failure to Utilize a DNA Expert
The petitioner next asserts that Attorney Brown failed to retain, consult, or utilize a DNA expert. The petitioner contends that such an expert and DNA analysis would have educated and assisted counsel, enable counsel to more effectively communicate with the petitioner about the DNA evidence, allowed counsel to better cross examine the state’s witnesses, and better challenge the DNA reports admitted during the criminal trial.
"An attorney’s line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel’s trial strategy." Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010); State v. Drakeford, 63 Conn.App. 419, 427, 777 A.2d 202 (2001), aff’d, 261 Conn. 420, 802 A.2d 844 (2002). It is important to note that "[t]he fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." Velasco v. Commissioner of Correction, supra, 172.
Additionally, there is no per se rule that requires a trial attorney to seek out an expert witness. Kellman v. Commissioner of Correction, 178 Conn.App. 63, 81, 174 A.3d 206 (2017). However, in some instances, the failure to use an expert can result in a determination of ineffective assistance of counsel. Stephen S. v. Commissioner of Correction, 134 Conn.App. 801, 811, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012).
The petitioner presented the testimony of Forensic Science Examiner Eric Carita. Although Carita explained the various DNA samples and test results, he confirmed that the petitioner could not be eliminated as a contributor to the DNA mixture on the pistol grip. The swab of the stain on the gun contained the petitioner’s DNA. Other swabs did not indicate that the petitioner was a contributor. Carita noted that had he been asked to consult with trial counsel, he would have advised counsel to focus on the fact that DNA analysts cannot tell how, when or in what order any contributors deposited their DNA on the firearm. Additionally, even though an individual may have more of their DNA profile on a sample, that does not indicate primary versus secondary transfer, or that the individual was the last to handle an object. In other words, DNA does not reveal when it was deposited, how it was deposited, or in what order it was deposited.
While it is true that Attorney Brown did not elicit this information during cross examination of Daniel Renstrom, the court is unable to discern the import of this line of questioning in light of other, more damaging, DNA evidence. The stumbling block to petitioner’s argument is the presence of a blood stain on the weapon and testimony about fresh cuts to the petitioner’s hands and blood on his pants. Any cross examination, in the court’s opinion, would have to explain how the petitioner’s DNA in the form of a blood stain appeared on the weapon. In other words, that evidence suggested that the petitioner had recently handled the weapon and some blood from his hands transferred to the grip of the gun. Further cross examination of the DNA analyst would not provide an explanation for that.
Finally, the petitioner has not demonstrated how the assistance of a DNA expert would have led to more effective communication between him and counsel.
4. Failure to Investigate and Call Defense Witnesses
The petitioner’s final claim is that Attorney Brown failed to investigate and call Rashadd Bunkley, Tynnetta Muhammad, and Shomari Gooden as defense witnesses. Only Tynnetta Muhammad testified during the habeas trial, so the court deems the claims pertaining to the two other witnesses to be abandoned. Without the testimony of Bunkley and Gooden, this court is simply unable to determine what they would have testified to had they been called and what impact, if any, that would have had on the outcome of the petitioner’s criminal trial. Thus, the court focuses on the testimony of Ms. Muhammad. See, e.g., Rodriguez v. Commissioner of Correction, 151 Conn.App. 232, 238-39, 94 A.3d 722, cert. denied, 314 Conn. 910, 100 A.3d 849 (2014) (failure to present evidence from alibi witnesses fatal to failure to investigate claim), citing Norton v. Commissioner of Correction, 132 Conn.App. 850, 859, 33 A.3d 819 (petitioner cannot prevail on claim that trial counsel was ineffective for failing to investigate witnesses when "the petitioner has not presented us with any beneficial testimony from these witnesses that would demonstrate how they would have assisted in his case had trial counsel interviewed them" and thus "failed to establish that further investigation of these witnesses would have been helpful to his defense"), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012); Lambert v. Commissioner of Correction, 100 Conn.App. 325, 327-28, 918 A.2d 281 (prejudice not established where petitioner failed to call alibi witness at habeas trial or offer evidence as to what [witness] would have testified), cert. denied, 282 Conn. 915, 924 A.2d 138 (2007); Hooks v. Commissioner of Correction, 61 Conn.App. 555, 557, 764 A.2d 1291 (2001) (petitioner cannot establish ineffective assistance of counsel for failure "to investigate certain witnesses" when "[n]one of those witnesses testified at the habeas trial" and no evidence introduced as to "how that testimony may have supported his claims").
The petitioner avers that Ms. Muhammad, the petitioner’s sister, would have testified to the fact that she had sent the petitioner to pick up his niece, but had failed to inform him that his niece was no longer at the Milner school. The petitioner’s niece attended the Milner school until the fall of 2011. The petitioner would help with picking up his niece at the Milner school.
As noted above, Ms. Muhammad testified at the habeas trial that she called the petitioner on November 21, 2011, and asked him to pick up his niece from school. Although her daughter had changed schools several months earlier and the petitioner was unaware of the school switch, she did not tell the petitioner which school to go to. The new school called her to let her know that her daughter had not been picked up, which led her to realize that the petitioner likely in error went to Milner, the former school. She gave this information to Attorney Brown’s investigator and was present in court for some of the pretrials, as well as the criminal trial itself, where she saw the investigator. She was not asked if she was willing to testify, but would have testified about the school mix up had she been asked to.
It is undisputed that the petitioner was near the scene of the incident because he was arrested shortly thereafter at the nearby Milner school. To that extent, an alternative explanation for his presence near the scene, through the testimony of Ms. Muhammad, would have supported his theory that he was not the shooter. However, this failure to call her does not, by itself, meet the petitioner’s burden of proof. The petitioner had another hurdle to overcome: his DNA being present as part of a mixture on the weapon and the correlation between the blood stain on the weapon and the blood on his hands and pants. In other words, while Ms. Muhammad’s testimony would explain why the petitioner was at or near the scene, it would not explain how his DNA and blood was found on the weapon alleged to have been used in the shooting, nor does it negate the state’s allegation that the petitioner conspired with Bunkley, who was also present near the scene and detained along with the petitioner.
Also undermining the petitioner’s claim is the fact that the jury heard from Tyvan Gooden and chose not to credit his exculpatory testimony. Gooden informed the jury that the petitioner, who he had known for five or six years, was not one of the two men and did not fire shots. Gooden’s aunt, Ana Soto, who was brought to the school where the petitioner and Bunkley had been detained, was also unable to identify either of them as one of the two men on Enfield Street. However, this too did not explain how the petitioner’s DNA and blood was found on the firearm.
There was no other evidence presented to the jury from which it could infer that the petitioner’s DNA was deposited on the weapon in a manner other than that alleged by the state. The most effective way of presenting this was through the testimony of the petitioner, but, as was his right, he elected not to do so. The defense instead relied on cross examination and the testimony of Gooden to show that the petitioner was not the shooter, yet, as noted above, this failed to explain the presence of his DNA. The petitioner’s decision resulted in him not being able to explain to the jury the series of events that resulted in him being in the area of Enfield Street at the time of the shooting, nor the sequence of events that led to the weapon being put in his hands.
There was no evidence presented in the habeas case that explains why the petitioner did not testify in support of his own defense and there is no claim alleged in this regard. The petitioner was canvassed by the court about his decision to not testify. Transcript (April 30, 2011), p. 88.
While Ms. Muhammad’s testimony would certainly have given the jury an alternate explanation for the petitioner’s presence at the scene, it would not have explained the presence of his DNA on the weapon, which was the critical evidence against him. The court also has difficulty concluding that Attorney Brown should have called Ms. Muhammad to provide an explanation for the petitioner’s presence near the scene when the jury disbelieved the purported victim’s testimony exculpating the petitioner as the shooter. The court, therefore, cannot conclude that Attorney Brown’s failure to call Ms. Muhammad as a witness was, by itself, deficient performance or that the petitioner was prejudiced by it.
CONCLUSION
The petitioner’s case presents a Catch-22. Counsel’s advice vis-à-vis the plea offer is reasonable in light of the defense theory of the case and the anticipated evidence at trial, i.e., the petitioner was coincidentally present at the scene of the crime; handled the firearm by chance, but did not shoot or conspire to shoot; testing did not reveal GSR on his hands; one eyewitness exculpated the petitioner and the other could not identify any shooter. The petitioner rejected pretrial offers based on his declaration of innocence and the existence of innocent explanations for his presence near the crime scene and the presence of his DNA on the alleged weapon.
On the flip side, when it actually came time for trial, the theory of his fortuitous presence was not explicitly or even implicitly presented to the jury. In other words, the jury was left to speculate why the petitioner was near the scene of the crime and how his blood and DNA ended up on the firearm. While the testimony of Ms. Muhammad would have gone some way toward filling in that large gap, it is the petitioner’s testimony that was needed to explain how his blood and DNA were found on the weapon. It is clear to the court that Attorney Brown’s fear that the jury would focus exclusively on the petitioner’s DNA and blood on the weapon came true. The defense needed to provide an explanation for that and the one witness who could do so— the petitioner— exercised his right not to testify. Thus, it is the court’s opinion that Attorney Brown was not deficient and even if he were, Ms. Muhammad’s testimony, by itself, was not sufficient to undermine confidence in the outcome of the case. Indeed, the jury elected to convict the petitioner even in the face of exculpatory testimony from the purported victim of the shooting.
Thus, the court concludes that the petitioner has failed in his burden of proving ineffective assistance of counsel. Judgment shall enter denying the petition for a writ of habeas corpus.