Opinion
No. CV 03 0825061
February 24, 2005
MEMORANDUM OF DECISION
On April 22, 2003, the petitioner filed a petition for a writ of habeas corpus, which was amended on May 26, 2004. The amended petition alleges that the petitioner was deprived of his right to effective assistance of counsel under the sixth and fourteenth amendments of the United States Constitution and Article First, section Eight, of the Connecticut Constitution. Specifically, the petitioner alleges that his trial counsel, Attorney J. David Griffin, failed to adequately investigate the factual basis for the charges against him. The petitioner contends that his attorney failed to contact and secure two eyewitnesses who made statements tending to exculpate him and contradicting the testimony of the prosecution's primary witnesses. The matter came before this court on December 2, 2004, for a habeas trial on the merits, at which time there was testimony from Attorney William Dow, Connecticut State Trooper Henry Arroyo, petitioner's trial counsel and two eyewitnesses, Edwin Lara and Barbara Raven. For the following reasons, the petition will be granted.
Other testimony was also provided during the habeas trial, however, it has proven to be irrelevant to the outcome of this decision.
FINDINGS OF FACT
On July 10, 2000, the decedent, Johanna Hernandez, her sister and two children were traveling in the right lane of Interstate 91 south. Without signaling, a truck veered into the decedent's lane. The decedent made a hard turn toward the breakdown lane to avoid a collision and lost control of her SUV, which proceeded to roll down an embankment to the road below. The decedent was ejected from the vehicle and killed, but the other passengers survived. At no time did the truck make contact with the decedent's vehicle. The petitioner was driving a truck, a white cab without a trailer, in the lane directly to the left of the decedent at the time of the accident.
An eyewitness, William Dietz, followed the petitioner from the accident scene and obtained his license plate number. Dietz then notified the police that the petitioner caused the accident and failed to stop. Trooper Arroyo conducted the accident investigation. The petitioner was subsequently arrested and charged with two counts of evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224(a), and one count of negligent homicide with a motor vehicle in violation of General Statutes § 14-222a. Attorney Griffin represented the petitioner in the underlying criminal matter. At the petitioner's criminal trial, Dietz, and the decedent's sister, Waleska Hernandez, testified on behalf of the prosecution. Both witnesses testified that a white cab, without a trailer, swerved into the decedent's lane. Attorney Griffin did not present any evidence or witnesses in support of the petitioner's defense. Because Attorney Griffin let the state rely on its own witnesses, the jurors did not hear testimony from eyewitnesses Lara or Raven. On May 16, 2002, the petitioner was convicted of negligent homicide with a motor vehicle and acquitted of the evasion of responsibility charges. The petitioner's conviction was affirmed on appeal and certification to the Connecticut Supreme Court has been granted. The certified appeal is still pending.
General Statutes § 14-224(a) provides, in relevant part: "Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury . . . or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator's license number and registration number to the person injured or to any officer or witness . . ."
General Statutes § 14-222a provides: "Any person who, in consequence of the negligent operation of a motor vehicle, causes the death of another person shall be fined not more than one thousand dollars or imprisoned not more than six months or both."
State v. Arrington, 81 Conn.App. 518, 840 A.2d 1192 (2004).
State v. Arrington, 268 Conn. 922, 846 A.2d 881 (2004). The petition for certification for appeal is limited to the following issue: "Did the Appellate Court properly determine that the trial court's ruling precluding evidence of a prosecution witness' intent to file a civil action against the defendant was harmless error?"
"A defendant should not be required to await the outcome of his appeal upon other issues before pursuing his claim of incompetent counsel. If his claim is meritorious, he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal." State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986).
At the habeas hearing it was established that Attorney Griffin had access to Trooper Arroyo's accident investigation report prior to the petitioner's criminal trial. The report contained written statements from eyewitnesses Dietz, Lara and Raven. The report also included a reference to an oral statement from Raven to Trooper Arroyo made on September 14, 2000. Dietz indicated in his written statement that the truck involved in the accident was a white cab without an attached trailer. Raven, in her written statement, stated that she witnessed a "big white 18 wheeler" veer into the decedent's lane. In the oral statement obtained by Trooper Arroyo, however, Raven indicated that a tractor without a trailer swerved into the decedent's lane. Trooper Arroyo testified that he had intended to follow-up the September 14 phone conversation by getting a supplemental written statement from Raven. However, he never did follow-up by getting a written statement.
At the habeas trial, Raven clarified her description of the truck that swerved into the right lane, and testified that it was a cab with a trailer attached. It is undisputed that the petitioner was driving a cab without a trailer attached. Also at the habeas trial, Lara testified that he heard horn bursts coming from what he believed to be the decedent's vehicle, but he did not see the truck swerve into the decedent's lane. This testimony was consistent with his written statement.
DISCUSSION OF LAW
"Habeas corpus provides a special and extraordinary legal remedy for illegal detention . . . The deprivation of legal rights is essential before the writ may be issued . . . Questions which do not concern the lawfulness of the detention cannot properly be reviewed on habeas corpus . . . When a habeas petition is properly before a court, the remedies it may award depend on the constitutional rights being vindicated . . . Further, any remedy must be commensurate with the scope of the constitutional violations that have been established." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 258 Conn. 804, 815, 786 A.2d 1091 (2002).
This court has agreed to hear the petitioner's habeas case, even though he is not currently incarcerated. "[P]ursuant to General Statutes § 52-466, a Connecticut habeas court has subject matter jurisdiction only over those cases brought by a petitioner who is `illegally confined or deprived of his liberty' under the challenged conviction. Ford v. Commissioner of Correction, [ 59 Conn.App. 823, 826, 758 A.2d 853 (2000)] . . . Federal cases interpreting the custody requirement indicate that to satisfy the requirement, the petitioner must be under some legal restraint, e.g., imprisoned or paroled, at the time the petition is filed. See Maleng v. Cook, 490 U.S. 488, 491-93, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) . . ." (Citation omitted; internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 83 Conn.App. 10, 14, 847 A.2d 1080 (2004). Firstly, since the petitioner only has a sentence of six months suspended after sixty days to serve, if the habeas trial were to be deferred to the time he is incarcerated, it would not likely be decided before he finished his sentence. Secondly, the petitioner's conviction carries ramifications beyond incarceration. His loss of his commercial drivers license effectively puts him out of business. That constitutes a deprivation of a legal right. The petitioner is not incarcerated at the present time because he is out on appeal bond, pending the decision of his case before the Supreme Court. If the petitioner's appeal is sustained, his right to be at liberty will cease immediately. Therefore, this court agreed to try this case while the petitioner is out on bond.
The right to counsel is "guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, section eight of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel." State v. Mason, 186 Conn. 574, 577, 442 A.2d 1335 (1982). The right to effective assistance of counsel, however, is not equivalent to the right to perfect representation. Washington v. Meachum, 238 Conn. 692, 732, 680 A.2d 262 (1996).
In Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings . . ." Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1994). Connecticut follows the two-part Strickland analysis for ineffective assistance of counsel claims in habeas corpus actions. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992). For a habeas petitioner to prevail on a constitutional claim of ineffective assistance of counsel, he must establish, by a preponderance of the evidence, both deficient performance and actual prejudice. Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002), citing Bunkley v. Commissioner of Correction, supra, 455.
To satisfy the performance prong, "the [petitioner] must show that counsel's performance was deficient." Strickland v. Washington, supra, 466 U.S. 687; see also Copas v. Commissioner of Correction, supra, 234 Conn. 154. The proper measure of attorney performance is simply an objective standard of reasonableness. Strickland v. Washington, supra, 688; Copas v. Commissioner of Correction, supra, 154. The petitioner "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland v. Washington, supra, 690; see also Quintana v. Warden, 220 Conn. 1, 5-6, 593 A.2d 964 (1991) (clarifying the reasonably effective assistance standard adopted in Strickland v. Washington). "The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland v. Washington, supra, 690. "[T]he effectiveness of trial counsel must [only] be assessed on the basis of what was known or should have been known to counsel at the time of his or her decisions." Toccaline v. Commissioner of Correction, CT Page 3578 80 Conn.App. 792, 815, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
As to the second component of the Strickland test, "the defendant must show 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." Strickland v. Washington, supra, 466 U.S. 687; see also Copas v. Commissioner of Correction, supra, 234 Conn. 154-55. "[A] successful petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, the results of the proceeding would have been different." Tatum v. Commissioner of Correction, 66 Conn.App. 61, 65, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001), citing Copas v. Commissioner of Correction, supra, 147. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, supra, 694.
1. Deficient Performance
The petitioner asserts a claim of ineffective assistance of counsel based on his attorney's failure to investigate the accounts of two eyewitnesses, Lara and Raven. To resolve the issue, this court must first examine whether Attorney Griffin's decision not to contact Raven and Lara, and call them to testify, was reasonable under the circumstances. "A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings." Copas v. Commissioner of Correction, supra, 234 Conn. 153. The failure to conduct an adequate pretrial investigation may constitute ineffective assistance of counsel. Strickland v. Washington, supra, 466 U.S. 691.
See also A.B.A., Standards for Criminal Justice Prosecution Function Defense Function (3d Ed. 1993) c.4, standard 4-4.1, p. 181-84. Standard 4-4.1, Duty to Investigate, states in relevant part:
"Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction."
This court will first address Attorney Griffin's failure to investigate Lara as a potential witness. Attorney Griffin testified at the habeas trial that after he reviewed Lara's written statement he concluded it would be harmful to the petitioner's case. Lara's statement indicated that he heard a horn coming from what he believed to be the decedent's vehicle. One of the elements the state had to prove beyond a reasonable doubt to convict the petitioner of evading responsibility was knowledge that he was involved in the accident. Attorney Griffin testified that Lara's written statement was not helpful to the petitioner's case because it created "an indication that somebody in the area would have stopped or looked or have seen something." Although it may have been wise for Attorney Griffin to at least contact Lara to verify his statement, based on the information he had at the time, it was not unreasonable that he declined to do so. "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, supra, 234 Conn. 154. "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.) Baillargeon v. Commissioner of Correction, supra, 67 Conn.App. 721.
Moreover, the evidence before this court demonstrates that Attorney Griffin considered the usefulness of Lara's statement and made a strategic decision not to call him to testify to limit the possibility that the jury would convict the petitioner on the most serious charges against him. "[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . ." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 801. Trial strategy involves decisions concerning the presentation of testimonial evidence. Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). Defense counsel will not be deemed ineffective for failing to call a potential witness unless the petitioner offers evidence demonstrating what the witness would have testified to had he been called at trial. Id. In addition, there must be "some showing that the testimony would have been helpful in establishing the asserted defense." State v. Talton, 197 Conn. 280, 297, 497 A.2d 35 (1985).
Because Lara never testified at the criminal trial, the testimony he gave at the habeas hearing must be evaluated to determine whether it would have been helpful to the petitioner's defense. "The habeas court is the sole arbiter of the credibility of witnesses and the weight to be given to their specific testimony." (Internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn.App. 68, 77, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001). Lara testified at the habeas trial that he heard a horn. Eyewitness Dietz testified at the criminal trial that, although he did not hear a horn, after the petitioner veered into the decedent's lane he reacted as if a horn had been blown because he quickly moved back into the center lane. Lara's testimony regarding the horn would not have been helpful because it supports an inference that the petitioner knew he was involved in the accident. Such an inference would have put the petitioner at risk of being convicted on two felony evading counts. Attorney Griffin's decision not to call Lara to testify was reasonable under the circumstances. Consequently, Attorney Griffin's performance was not deficient concerning his failure to investigate Lara as a potential trial witness.
This court is not convinced, however, that Attorney Griffin's decision not to contact Raven was similarly reasonable. The "failure to conduct an adequate investigation is not a matter of trial tactics. Counsel must make his decisions on an informed basis." Siemon v. Stoughton, 184 Conn. 547, 557, 440 A.2d 210 (1981). Raven described the truck that swerved into the decedent's lane in her written and oral statements. In her written statement, given the day of the accident, Raven described the truck as a "big white 18 wheeler" with red lettering on the right side. It is important to note that the petitioner's truck did not have red lettering on the right side. Raven told Trooper Arroyo during a phone conversation in September, however, that the white truck was a cab without a trailer attached. The description of the truck is significant because evidence that a tractor trailer was involved in the accident, as opposed to just a cab, could possibly exculpate the petitioner.
At the habeas trial, Attorney Griffin testified that he relied on Raven's written and oral statements when he made his decision not to talk with her. He stated that he thought Raven's statement was "ambiguous" and that she would "not [be] a very favorable witness." Attorney Griffin further testified: "[W]ords that she used in the particular statements seemed to indicate that she would interchange particular words: truck with SUV. Tractor could have been construed as a tractor trailer . . ." Although not entirely clear, Raven's written statement that an "18 wheeler" caused the accident is inconsistent with Dietz's statement that the offending vehicle was a white cab without a trailer. It is unreasonable that Attorney Griffin would decline to at least contact Raven and inquire about the different descriptions she gave regarding the truck. He could not have fully assessed the value of Raven as a potential trial witness without first speaking to her and gaining clarity regarding what she actually saw.
Attorney Griffin also testified that his office "may have sent a subpoena" to Raven's last known address, but that she was never actually served. Raven testified at the habeas trial that she never received a subpoena.
The excuse that Raven would not be easy to locate does not have any impact on this court's determination that she should have been contacted. Raven's address and phone number were provided in the. accident investigation report. Although that information may not have been current at the time Attorney Griffin was working on the petitioner's case, Raven testified at the habeas trial that she never moved out of Connecticut, between July 2000 and May 2002. Raven could have been located had a little effort been put into a search. Under the circumstances, further investigation to determine the accuracy of Raven's statements was required to establish a factual basis for the petitioner's defense. Consequently, this court determines that Attorney Griffin's failure to investigate Raven was unreasonable given the information he had available to him at the time of the petitioner's trial. The petitioner has satisfied the first prong of the Strickland test.
Attorney Griffin's testimony indicated that difficulty locating Raven at least partly influenced his decision not to contact her. He also testified that he thought it would be better for the defense's case if she did not appear at trial. At the petitioner's criminal trial, however, Attorney Griffin stated during the cross examination of Trooper Arroyo that Lara and Raven would be called to testify:
Q: "And you also talked to Barbara Raven."
A: "Yes."
Q: "And she was directly behind the Toyota SUV."
A: "Yes."
[State]: "I'm going to object, your Honor. Let them testify."
Mr. Griffin: "They will, your Honor."
Trial Transcript pp. 99-100.
Raven testified that she lived in the state of Connecticut from the time of the accident in July 2000, to the time of the criminal trial in May 2002.
2. Prejudice
This court must next determine whether Attorney Griffin's deficient performance prejudiced the petitioner's defense. In other words, is there a reasonable probability that had Attorney Griffin called Raven as a witness, her testimony would have cast reasonable doubt on the state's case? Whether counsel's error was prejudicial, and deprived the petitioner of a fair trial, "depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case . . . the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 254, 630 A.2d 577 (1993), cert. denied, 516 U.S. 1140, 116 S.Ct. 972, 133 L.Ed.2d 892 (1996).
Although this language specifically pertains to factors to be considered when determining whether an error committed by a trial court was harmless, its application is analogous to this court's evaluation concerning the prejudicial impact of counsel's deficient performance.
Raven's testimony at the habeas hearing demonstrates that she would have been helpful in establishing the petitioner's defense. Although Raven's written and oral statements were inconsistent, she repeatedly described the truck involved in the accident as a cab with a trailer attached. Her testimony at the habeas trial never wavered on that point. She further testified that the cab of the truck was old, because it did not have a sleeping compartment. The petitioner's cab did have a sleeping compartment.
Although Raven also testified at the habeas trial that she heard the decedent blow her horn as the truck veered into her lane, the potential risk created by this testimony does not outweigh the benefit created by Raven's testimony regarding the description of the truck. As previously discussed, Attorney Griffin made a reasonable, strategic decision not to use Lara as a witness because testimony about a horn might have indicated that the petitioner had knowledge he was involved in the accident. Lara's testimony, however, differs significantly from Raven's because it does not provide a similar description of the offending truck. Raven's description of the offending truck (a cab with a trailer) would tend to exculpate the petitioner.
Raven specifically stated: "The cabin was [an] old one . . . Like, the new ones, I believe you can sleep in. They are wider . . . This was an old one."
Dietz and Hernandez testified in support of the state's case and identified a photograph of a cab, with a sleeping compartment and without a trailer, as the truck that veered into the decedent's lane. The truck in the photograph was the cab driven by the petitioner the day of the accident. Raven's habeas testimony identifying the offending truck as a cab with an attached trailer directly contradicts the testimony given by Dietz and Hernandez. Because Raven was not called as a witness during the criminal trial, and the petitioner himself did not take the stand, the jury was never presented with any evidence indicating that anyone other than the petitioner caused the accident. If Raven was called to testify at the criminal trial, the jury could reasonably have credited Raven's testimony regarding the description of the truck instead of the identifications given by Dietz and Hernandez, thus creating reasonable doubt in the state's case. Consequently, there is a reasonable probability that Raven's testimony would have created reasonable doubt of the petitioner's guilt. This court finds that Attorney Griffin's failure to investigate Raven as a potential trial witness was prejudicial to the petitioner's defense.
This court is also aware of the recent Appellate Court decision in the underlying criminal case. State v. Arrington, 81 Conn.App. 518, 840 A.2d 1192 (2004). The Appellate Court found error in the trial court's refusal to allow Hernandez to be cross examined on her potential financial interest in the outcome of the trial. Id., 521. At the time of the criminal trial, she had a civil action pending against the petitioner for injuries sustained in the accident. Id., 520.
The Appellate Court, however, found the error to be harmless, because all of the evidence at the trial indicated that the petitioner was driving the "swerving" truck. Id., 521. The Appellate Court noted that the only testimony at trial regarding causation was testimony from Hernandez and Dietz. Id. Raven testified at the habeas trial that the truck that caused the SUV to spin out of control was a cab with a trailer attached. She was adamant about that portion of her testimony. If she had been called to testify at the criminal trial, and remained steadfast as to that issue, there is a reasonable probability that the Appellate Court might have found the error to be harmful. This further supports a finding that the petitioner was prejudiced by counsel's failure to thoroughly investigate in this case.
CONCLUSION
The petitioner has satisfied both prongs of the Strickland test, thus proving he was deprived of his right to effective assistance of counsel under the federal and Connecticut constitutions. Accordingly, the petition for habeas corpus is GRANTED. The court orders that the verdict be set aside, and that the petitioner be granted a new trial in the criminal court.
By the Court,
Hon. Jonathan J. Kaplan