Opinion
No. CV05-4000697
August 10, 2009
Memorandum of Decision
The petitioner, Michael Braham, alleges in his petition for a Writ of Habeas Corpus initially filed on September 28, 2005 and amended for the final time on November 17, 2006, that he was denied the effective assistance of counsel at his previous habeas trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution and consequently that he should now be allowed to withdraw his pleas of guilty under the Alford Doctrine. 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.
The petitioner has, in the past, been known as "Nambi Braham." In addition, the petitioner voluntarily waived his right to be represented by the Office of Public Defender and proceeded to represent himself.
Braham v. Warden, Docket No. CV98-0585938 filed December 11, 1998, dismissed April 11, 2001, Rittenband, J.T.R. Affirmed, Braham v. Commissioner, 72 Conn.App. 1, cert. denied, 262 Conn. 906 (2002).
North Carolina v. Alford, 400 U.S. 25 (1970).
The claim of ineffective assistance of counsel essentially complains that his habeas counsel, Atty. Judith Wildfleur, was ineffective in her representation before the initial habeas court and on appeal by not pursuing a claim against the trial defense counsel, Atty. Joseph Elder, that he unduly pressured the petitioner to accept a plea bargain and that he failed to properly advise the petitioner regarding his "intoxication defense" relative to his decision to plead guilty to murder. The petitioner argues that as a result of the ineffective representation by habeas counsel, Atty. Wildfleur, the habeas court made the erroneous decision that the trial defense counsel performed his duties to his client in a professional manner and did not find that the petitioner's plea of guilty was knowing, intelligent and voluntary. In light of this, the petitioner asks that he be allowed to withdraw his guilty plea and have his case restored to the docket.
The shorthand vernacular that has evolved to describe cases such as this is that this type of case is "a habeas on a habeas."
This mater initially came on for the trial of the habeas petition before this Court on January 31, 2007. As a result of numerous unrelated matters, such as scheduling problems for expert witnesses, the re-assignment of this judge to two different judicial districts, and requests for lengthy delay by the petitioner, the case was tried over ten trial days with the final day of trial being December 11, 2008. Given the extraordinary length of time involved in the trial of this matter, the parties requested post-trial briefs and the final brief was received on May 4, 2009.
The petitioner, his trial defense counsel, Attorney Joseph Elder, his habeas counsel, Atty. Judith Wildfleur, expert witnesses, Drs. Brian Pape and Robert Powers, Mr. Kwan Carter, Mr. Timothy Nealy, Mr. Daniel Kelly, Inspector Raymond St. Jacques, Mr. Matthew Schroeder, Atty. Leon Kaatz, testifying as an expert in criminal defense matters, as well as Senior Assistant State's Attorney Vicky Melchiore all testified at the trial. In addition, the Court received numerous transcripts, including those of the petitioner's plea and sentencing, as well as numerous other pieces of documentary material into evidence. The record in this matter is, in a word, voluminous.
The Court has carefully reviewed all of the testimony and documentary evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a criminal matter in the Judicial District of Hartford, under Docket Number CR96-0490258 entitled State v. Braham in which he was charged with murder in violation of CGS § 53a-54(a).
2. Attorney Joseph Elder, a private attorney that had been hired by the petitioner's parents to represent him in this case appeared on behalf of the petitioner.
3. During the course of this representation, Attorney Elder, thoroughly investigated the facts (including the version of events told by the petitioner) and became convinced that the state had a strong body of evidence arrayed against the petitioner. Attorney Elder's professional opinion was that the petitioner would, in all likelihood, be convicted and was quite likely to receive a lengthy sentence if the case were to be tried. Notwithstanding, Atty. Elder made all appropriate preparations for trial.
4. Based upon the charges, the petitioner's exposure to incarceration was substantial and potentially for the remainder of his life.
5. The petitioner waived his right to a Hearing in Probable Cause.
6. The facts surrounding the underlying crime are as follows: "On June 24, 1996, in the area of 104 Westbourne Parkway in Hartford, the petitioner shot and killed Jeffrey Murphy. The petitioner and the victim had attended a cookout that day where the petitioner consumed beer and smoked marijuana. The petitioner and the victim had engaged in an argument that began the previous night over a sale of drugs. The petitioner testified at the habeas trial that he had been angry about the continuing argument with the victim.
7. "According to the petitioner's [testimony at his first habeas trial], the victim threatened that he would `see' the petitioner when the petitioner did not have his gun. The petitioner interpreted that to mean that he and victim were `at war now.' [Mr. Braham] then withdrew his gun and tried to strike the victim with it, but the victim ran away. The petitioner proceeded to fire shots in the direction of the victim. One of the bullets struck the victim and killed him. The victim's cousin, Troy Murphy, witnessed the shooting and gave a statement to the police. The police seized the petitioner's shirt, which later tested positive for gunpowder." Braham v. Commissioner, 72 Conn.App. 1, 2-4 (2002).
8. The petitioner pled guilty to murder in front of Judge Clifford on January 22, 1998. Pursuant to the plea agreement with the state, the petitioner was sentenced to a term of 32 years incarceration.
9. On July 29, 2000, the petitioner filed his first petition for a writ of habeas corpus alleging that he was deprived of the effective assistance of counsel.
10. The petitioner was represented by Attorney Judith Wildfleur in this petition.
11. The matter came on for trial before the Court, Rittenband, JTR, on October 12, 2000. That petition was denied in a written Memorandum of Decision dated April 10, 2001.
12. The denial of the petition was affirmed by the Appellate Court. See Braham v. Commissioner of Correction, 72 Conn.App. 1, cert. den., 262 Conn. 906 (2002).
13. The Court will discuss additional facts as needed.
Discussion
The petitioner now comes before this Court alleging that he received ineffective assistance of counsel (Atty. Wildfleur) at his first habeas trial before Judge Rittenband and on the subsequent appeal. As a consequence, he necessarily alleges that Judge Rittenband made the wrong decision on his first habeas claim that he had been deprived of the effective assistance of trial defense counsel (Atty. Elder). The linchpin to the arguments of the petitioner is his claim that he had consumed prodigious amounts of alcohol and marijuana and was so intoxicated that he was unable to form the intent to commit murder, the crime to which he ultimately pled guilty.
There is a critical difference between the legal status of a person who has been accused of a crime as opposed to 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 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." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). The burden of proving a right to habeas relief rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra, at 422.
In the instant case, not only has the petitioner been convicted of these offenses, he has been convicted pursuant to his plea. "A valid guilty plea generally operates as a waiver of all defects in the prosecution `except those involving the canvass of the plea and the court's subject matter jurisdiction.' State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); State v. Satti, 2 Conn.App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn.App. 691 at 693 (1995). Moreover, "the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, . . . the plaintiff's plea of guilty was valid." Consiglio v. Warden, 160 Conn. 151 (1970).
The petitioner now asserts that he did not want to plead guilty to murder. He offered his opinion that the plea should have been to manslaughter because of his voluntary intoxication. He alleges that his plea of guilty to murder was coerced and involuntary. This assertion rings untrue, particularly given that the petitioner has entered a guilty plea under the Alford doctrine. It is important to keep in mind that "guilt, or the degree of guilt, is at times uncertain and elusive, an accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. McCoy v. United States, 124 U.S. App. D.C. 177, 179, 363 F.2d 306, 308 (1966)." See North Carolina vs. Alford, 400 U.S. 25 at 33 (1970).
In the instant case, the petitioner was charged with murder that would have, had he been convicted, exposed him to a lengthy sentence and perhaps as much as life in prison. It is clearly understandable then why this petitioner would have made the voluntary decision to plead guilty to murder under the Alford doctrine in order to minimize his potential exposure and obtain an earlier release from confinement. "Reasons other than the fact that he is guilty may induce a defendant to so plead . . . [and he] must be permitted to judge for himself in this respect. State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). By making the pragmatic decision to plead guilty, even though he may have believed himself to have a colorable defense, the petitioner obtained a plea agreement that led to a sentence of thirty-two years and avoided a potential prison sentence that would have meant imprisonment for the rest of his natural life.
The petitioner was 22 years old at the time of his plea. He has a maximum release date of June 23, 2028 at which time he will be 53 years of age. By making the pragmatic decision to accept a plea agreement, even though he asserts that he was only guilty of manslaughter, the petitioner will be able to be released back into the community while still a, relatively speaking of course, man in his middle ages. Had he gone to trial and the state convicted him on all counts (a probable event given the nature of the evidence available to the state), it is likely that he would have been spending the remainder of his natural life behind bars. This is precisely the situation that is permitted by North Carolina v. Alford, 400 U.S. 25 (1970).
In the instant case, it is clear that the petitioner's plea is voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. The Court engaged in a full canvass of the petitioner to determine the providence of his plea, the petitioner was represented by counsel, and fully understood the import of what he was doing. Consequently, there is nothing in this record to permit a finding that this guilty plea is anything other than valid.
The ultimate decision as to how a criminal defendant pleads, guilty, not guilty or nolo contendre, rests exclusively with the individual charged with the crime. A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. It is not, and never has been, for the trial defense counsel to decide the plea that his client should enter. It is clear in this case that the petitioner voluntarily chose to plead guilty even though he clearly appears to be not completely happy with his having to do so. The fact that the choice is distasteful to the petitioner does not make the petitioner's plea involuntary.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
Nevertheless, the petitioner is entitled to the effective assistance of counsel in reaching that decision. Since "a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, 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 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721 (2002). Consequently, an attorney who fails to conduct an adequate investigation such that he or she is prevented from offering his client proper counsel in regard to making the decision to plead may well be providing ineffective representation.
That is the thrust of the petitioner's argument in this case, of course. He asserts that Attorney Elder was ineffective in the advice he gave the petitioner insofar as the strength of the state's case and the strength of the defense case. The facts of this case, as alleged by the state are strong in favor of the petitioner's guilt to the crime of murder. The petitioner was seen arguing with the victim, both of them were competing sellers of marijuana and there was bad blood between the two. Moreover, the petitioner admitted shooting the victim. What is particularly compelling in this case are several additional facts: (1) at no time did the prosecutor consider backing off from the murder charge and reducing the charge to manslaughter; (2) even had there been a trial and the petitioner acquitted of murder, there is a virtual certainty that the jury would have convicted of the lesser offense of manslaughter with a firearm. This lesser included offense carried a maximum sentence of forty years incarceration. Therefore, even had the petitioner been successful in his assertion of voluntary intoxication as negating the element of intent for murder, the petitioner is again virtually certain to have received a sentence in excess of the thirty-two years he did for murder.
"The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, CT Page 12899 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, `a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.'" Buckley v. Warden, 177 Conn. 538 at 542-43 (1979).
Now, the petitioner comes to Court claiming that his trial defense attorney did not adequately consider the level of his intoxication and unduly pressured him to plead. The petitioner claims that not only did his trial defense counsel fail him, but that his habeas counsel did as well by not presenting the evidence of his intoxication to the first habeas court. In support of that the petitioner introduced the testimony of several other attendees at the cook-out to show that he had been intoxicated. He also produced the expert testimony of Dr. Brian Pape, a forensic toxicologist who offered an opinion that the petitioner's blood alcohol content (BAC) should have been in the vicinity of .23 rendering him substantially impaired. The Respondent countered with the testimony of Dr. Robert Powers, a state employed forensic toxicologist who reached a lower figure for BAC of .13. The evidence presented to this court clearly shows that the trial defense counsel did not pursue this voluntary intoxication defense. However, the evidence also clearly shows that the petitioner never informed him that he was so intoxicated, do an outstanding job of investigating and representing the petitioner. There has been nothing presented to this court that would permit a finding that the plea was in any way induced by any sort of undue influence and pressure from the trial defense counsel.
Any claim of ineffective assistance of counsel must of course, satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d (1984), before the Court can grant relief. 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." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "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 petitioner makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. 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 result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "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." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner, 234 Conn. 139, at 151 (1995). Given this, the petitioner must first prove that the performance of his first habeas counsel was deficient in that she failed to present the evidence by which the first habeas court would have found that his trial defense counsel was deficient in the manner in which he conducted his pretrial activities and negotiated a plea agreement for the petitioner. Then, the petitioner must prove that, but for both of his attorneys' inadequacies, he would have pled not guilty, gone to trial and been acquitted. The evidence presented to the habeas court is completely devoid of any evidence by which this Court could conclude that the petitioner wanted to continue to plead not guilty much less that had he so done he would have been acquitted in the resulting trial.
It is not necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) (`[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It is clear that the petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of either his first habeas counsel or his trial defense counsel. When a defendant pleads guilty he or she relieves the state of an enormous burden in having to go forward with proof of guilt. A guilty plea is often thought of as the first step on the long road to rehabilitation and a beginning of a return of the offender to being a productive member of society. In return, the state will generally recommend that a penitent defendant receive a lower sentence. A plea bargain is in the nature of a contract, albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still 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, infra at 694. Here, the petitioner voluntarily entered into this plea bargain; was ably represented by counsel who did conduct an adequate pretrial investigation; and, the petitioner freely made the choice to give up his constitutional right to a trial in order to obtain favorable consideration upon sentencing. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
The petitioner asserts that his voluntary intoxication was such that his trial defense counsel should have negotiated a plea to manslaughter. However, it is clear that the prosecution was adamant and unwavering in its position that the charge of murder was not going to be reduced to manslaughter. Given this, there is nothing that Atty. Elder could have done to force that to happen. Likewise, there is no evidence that Atty. Wildfleur could have presented to Judge Rittenband that would have convinced him that the trial defense counsel was ineffective.
The petitioner has been found guilty pursuant to his own plea. He enjoyed the representation of a competent counsel and the Court has found that his plea of guilty is knowing, intelligent and voluntary. The petitioner has been actively engaged in seeking to avoid liability for his actions on that day of July 1996 in which he took the life of another individual. Indeed, Attorney Elder was probably right on the mark when he told the petitioner in response to a question he had posed during this habeas trial that the petitioner "is smart and has been seeking to set up a claim of ineffective assistance of counsel from the beginning in order to avoid serving the full sentence." Nothing presented to this Court, to the prior habeas Court or on appeal can lead one to any other conclusion but that: prior habeas counsel was constitutionally effective in her representation, both at trial and on appeal; trial defense counsel was constitutionally effective in his representation; the "voluntary intoxication defense" concocted by petitioner is non-persuasive and that this conviction for murder is anything other than reliable and proper.
The Petition for a Writ of Habeas Corpus is denied.