Opinion
No. CV 02 0820373
October 25, 2005
MEMORANDUM OF DECISION
The petitioner, Raymond Aponte, alleges in his petition for a Writ of Habeas Corpus amended on June 16, 2003, that his 1998 convictions for murder in violation of General Statues § 53a-54a(a) and conspiracy to commit murder in violation of §§ 53a-54a(a) and 53a-48(a) were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8, of the Constitution of the state of Connecticut. Specifically, the petitioner claims in count one of the petition that he has been denied his right to the effective assistance of trial counsel. In count two, the petitioner claims that he is actually innocent of the charges of which he stands convicted.
The petitioner initially filed two separate habeas petitions, the first on January 15, 2002, assigned docket number CV 02 0813688, and the second on September 30, 2002, assigned docket number CV 02 0820373. The files were subsequently consolidated under one docket number, CV 02 0820373.
Trial for this matter was held before this Court on March 1, 2004, April 29, 2004, and June 28, 2005. Testimony was received by the petitioner; his trial defense counsel, Attorney John R. Gulash; his appellate counsel, Attorney Donald D. Dakers; inmate Jose Garcia; and inmate Luis Delvalle. Transcripts of the petitioner's probable cause hearing and criminal trial, as well as several other documents, were received into evidence. For the reasons set forth more fully below, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
Based on a review of the testimony and evidence, this Court makes the following findings of fact:
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Bridgeport, under Docket Number CR97 0125621, entitled State v. Aponte. The petitioner was charged with one count of murder in violation of General Statutes §§ 53a-54a(a) and 53a-8(a) and one count of conspiracy to commit murder in violation of §§ 53a-54a(a) and 53a-48(a). Attorney John R. Gulash CT Page 13351-km represented the petitioner throughout the criminal proceedings.
2. The jury could have reasonably found the following facts to be true regarding the underlying offense: "On January 3, 1996, at approximately 12:55 p.m., the victim, Aldrich Mitchell, and two eyewitnesses, Luz Rosado and Juan Vasquez, were standing in front of Rosado's apartment in the Green Homes apartment complex on Harral Avenue in Bridgeport. As the three of them stood talking, three males approached. Two of them were wearing ski masks, sunglasses and hoods that covered their faces. Vasquez later identified the three men as Luis Delvalle, Jose Garcia and [the petitioner]. All three men were armed.
3. "The victim attempted to enter Rosado's apartment and was told by one of the men not to enter the apartment but to come with them. The victim followed the three men away from Rosado's apartment and toward the driveway of the Green Homes apartment complex. Rosado went into her apartment and watched through her window as the victim left with the three men. The victim turned and ran away from the three men. All three men then turned and fired their weapons at the victim. Rosado heard seven or eight gunshots. The three men then fled, and Vasquez ran to the victim. Vasquez observed a bullet wound to the victim's head. Vasquez waited with the victim for the ambulance to come and then left the scene after the victim was taken to a hospital." State v. Aponte, 63 Conn.App. 82, 83-84, 774 A.2d 1035 (2001), aff'd, 259 Conn. 512, 790 A.2d 457 (2002).
4. The jury convicted the petitioner on both charges. On July 10, 1998, the Court, Stodolink, J., sentenced the petitioner to a total effective sentence of forty-five years incarceration. The petitioner's conviction was affirmed on appeal.
State v. Aponte, 63 Conn.App. 82, 774 A.2d 1035 (2001), aff'd, 259 Conn. 512, 790 A.2d 457 (2002).
5. The petitioner did not testify in his own defense at the criminal trial.
6. The petitioner admitted to this Court that he was on the scene when the crime occurred; however, he did CT Page 13351-kn not reveal this fact to Attorney Gulash at any time during the criminal trial.
7. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to the legal status of one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition, having already been convicted, is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before [this] Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 422-23, 641 A.2d 1356 (1994).
Deprivation of Effective Assistance of Counsel
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's trial defense counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id., 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving CT Page 13351-ko "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will necessarily result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for new counsel to attempt to relitigate the case in a different manner. It is an indisputable fact that many times if one had foreknowledge of certain events, different courses might well have been taken. Thus, "[a] fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn.App. 313, 317, 759 A.2d 118 (2000).
In the present case, the petitioner makes various allegations concerning the performance of Attorney Gulash; however, little evidence was put forth at the habeas trial in support of such claims. The petitioner specifically alleges that Attorney Gulash did not adequately investigate his case and failed to present exculpatory evidence through witness testimony at the criminal trial. "The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction." Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1994). "Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Internal quotation marks omitted.) CT Page 13351-kp Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002).
Based on the evidence submitted at the habeas trial, it is clear to this Court that Attorney Gulash employed considerable time and resources in the investigation of the petitioner's case. In an effort to better prepare for trial and anticipate the state's case, Attorney Gulash reviewed the transcript of Luis Delvalle's criminal trial, the codefendant that was tried and convicted before the petitioner. He also spoke with prospective witnesses, including Luz Rosado, an eyewitness called by the state, prior to the petitioner's criminal trial. Concerning the production of defense witnesses, Attorney Gulash hired two private investigators in an attempt to locate a potentially favorable witness for the defense, Andrea Gonzalez. It is not the fault of Attorney Gulash that this witness could not be found. What is important, for the purpose of this analysis, is that Attorney Gulash made a reasonable attempt to locate the witness, and there is no doubt to this Court that he did indeed make such an attempt.
The petitioner further alleges that Attorney Gulash failed to explore various potential defenses available to the petitioner. Attorney Gulash cannot be faulted now, years after the criminal trial, for the strategic decisions he made concerning what theory of defense to pursue in the petitioner's case. It is not unreasonable, or uncommon, in a criminal trial for the defense to forgo the presentation of its own evidence and put the state to its burden of establishing guilt beyond a reasonable doubt. The creation of reasonable doubt by the defense can be done effectively through vigorous and thorough cross examination of the state's key witnesses. Given what he knew at the time of the petitioner's trial, this is the strategy that Attorney Gulash chose to employ. Also important to note, however, is what Attorney Gulash didn't know at the time of trial — that the petitioner was actually present on the scene during the commission of the crime — information that would likely have proven helpful in preparing and executing an effective defense. The petitioner cannot now successfully question the adequacy CT Page 13351-kq of Attorney Gulash's defense strategy, particularly when he failed to disclose all of the relevant facts, simply because he is not satisfied with the final outcome of his trial. "One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence." (Internal quotation marks omitted.) Edwards v. Commissioner of Correction, 87 Conn.App. 517, 526, 865 A.2d 1231 (2005).
In view of the foregoing, this Court concludes that the petitioner has failed to establish that trial counsel's performance was deficient under the first prong of the Strickland test. Even if counsel's performance was found to be deficient, however, there is not even one iota of proof to support a finding of prejudice in this case. To prove prejudice the petitioner must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, supra, 466 U.S. 694.
The petitioner claims that had the testimony of Andrea Gonzalez been presented at his criminal trial the jury would not have returned a verdict of guilty. To prove this claim, there must be some showing before the habeas court "that the testimony would have been helpful in establishing the asserted defense." Nieves v. Commissioner of Correction, 51 Conn.App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). The most effective way to do this is by bringing the witness in to testify at the habeas trial. That was not done in this case because Andrea Gonzalez could not be located by the petitioner's habeas counsel. Without her presence, this Court can only speculate as to what she may have testified and whether it would have actually been helpful to the petitioner's case. The documentary evidence submitted by the petitioner in lieu of Gonzalez's testimony is similarly unhelpful because it does not affirmatively establish that the petitioner was not an actual participant in the crime. "In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is CT Page 13351-kr not met by speculation but demonstrable realities." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 860, 877 A.2d 11, cert. denied, 275 Conn. 905 (2005). The petitioner has failed to introduce sufficient evidence to convince this Court that he was prejudiced by any alleged deficiencies in Attorney Gulash's representation. His ineffective assistance of counsel claim, therefore, fails on both parts of the Strickland test.
The written report of Andrea Gonzalez's call to the police does suggest that the petitioner was not a participant in the crime. In the report, the three men Gonzalez named as taking part in the shooting were Cano (Jose Garcia), Billette (Luis Delvalle) and Shorty (an unknown man). See Exhibit 5. The only way to affirmatively establish who Gonzalez exactly saw that day, however, is by witness testimony and personal identification in court. Because Gonzalez was not present at the petitioner's criminal or habeas trials, the evidence presented through the written report is merely speculative.
Actual Innocence
The petitioner also alleges that he is actually innocent of the crimes of which he stands convicted. It is well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege that the petitioner's state or federal constitutional rights have been violated. See Summerville v. Warden, supra, 229 Conn. 422. However, in order to prevail in such a claim, a petitioner must overcome two very large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner of Correction, 242 Conn. 745, 791-92, 700 A.2d 1108 (1997). Unlike the original criminal trial in which the petitioner (then the defendant) enjoyed the presumption of innocence with the burden of proving his guilt beyond all reasonable doubt resting upon the prosecutor, in the habeas proceeding, the burden of proof rests upon the petitioner. This is so because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, supra, 427. Furthermore, there is a strong societal interest "in not degrading the properly prominent place given to the CT Page 13351-ks original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility . . ." Id.
The burden of proof in a habeas proceeding in which the claim is actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." Miller v. Commissioner of Correction, supra, 242 Conn. 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
There is also a threshold question regarding the issue of whether the allegation of actual innocence should even be considered by this Court. Although having been presented with several opportunities to do so, the Connecticut Supreme Court has declined to resolve the question of "whether a habeas petitioner's claim of actual innocence must be based on new evidence," therefore leaving it "an open question in our habeas jurisprudence." Clarke v. Commissioner of Correction, 249 Conn. 350, 358, 732 A.2d 754 (1999). The Appellate Court, however, has concluded that a claim of actual innocence must be supported by newly discovered evidence. Clarke v. Commissioner of Correction, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 358, 732 A.2d 754 (1999), citing Williams v. Commissioner of Correction, 41 Conn.App. 515, 527, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). "This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) CT Page 13351-kt Batts v. Commissioner of Correction, 85 Conn.App. 723, 726-27, 858 A.2d 856, cert. denied, 272 Conn. 907, 863 A.2d 697 (2004). "Due diligence does not require omniscience . . . Due diligence means doing everything reasonable, not everything possible . . . The petitioner for a new trial must be diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted." (Citations omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, supra, 41 Conn.App. 528-29.
Pursuant to the above standard, the petitioner has not submitted any newly discovered evidence and has therefore failed to make the threshold requirement by which a claim of actual innocence may be pursued. The only evidence that approaches being newly discovered is the testimony provided by the petitioner and his two codefendants, now inmates serving time for their participation in the underlying crime in this case. The petitioner, as is his right, did not testify at his criminal trial. In the absence of some sort of persuasive evidence that the petitioner suffered from a transitory amnesia or some other impediment at the time of his original trial that prevented him from testifying as to the events of January 3, 1996, his own testimony cannot ever be considered to be newly discovered. All of the matters to which the petitioner testified before the habeas court were within his knowledge at the time he was initially tried. The petitioner has an absolute right to use the protections of the Fifth Amendment as a shield and remain silent, but he cannot use it as a sword to seek a new trial at a significantly later time by deciding to testify years later. As for the petitioner's codefendants, Jose Garcia and Luis Delvalle, their involvement in and knowledge of the case was also known to the petitioner at the time of the criminal trial and therefore cannot be considered newly discovered evidence. Even if this Court, extending a significant amount of latitude toward the petitioner, considered the testimony of both inmates to be newly discovered evidence, the testimony presented was of such limited credibility that it is neither clear nor convincing. The clear and convincing standard that this Court must apply "should operate as a weighty caution CT Page 13351-ku upon the minds of all judges and it forbids relief whenever the evidence is loose, equivocal or contradictory." (Internal quotation marks omitted.) Miller v. Commissioner of Correction, supra, 242 Conn. 795.
The state has an interest "in maintaining the fairly obtained conviction of one whom it sincerely believes is guilty, and in not being required to maintain that status by way of a second trial years later, when its evidence of guilt may be less reliable than when it was fresh." Miller v. Commissioner of Correction, 242 Conn. 745, 792, 700 A.2d 1108 (1997).
In the present case, the petitioner was found guilty following a contested trial to a jury. As previously discussed, the petitioner enjoyed the representation of competent counsel who, upon review of the trial transcripts, presented a cogent defense of his client. The jury was simply not persuaded. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that jury's verdict and order a new trial. Here, there is no basis upon which to do so. The petitioner has failed to meet his burden of proving actual innocence with clear and convincing evidence and that no reasonable finder of fact would conclude that the petitioner is guilty.
Accordingly, the Petition for a Write of Habeas Corpus is denied.