Opinion
No. CV04-0004540
June 7, 2007
MEMORANDUM OF DECISION
The petitioner, Marshall Brown alleges in his petition for a Writ of Habeas Corpus initially filed on May 6, 2004 and amended for a final time on February 26, 2007, that his convictions for: two counts of attempted murder in violation of CGS §§ 53a-49(a)(1) and 53a-54a; two counts of kidnapping in the first degree in violation of CGS § 53a-92(a)(B)(2)(A); and one count of carrying a pistol without a permit in violation of CGS § 29-35(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. He specifically claims to have been deprived of the effective assistance of both trial defense counsel and appellate counsel.
The only evidence presented to this court in connection with the claim of ineffective assistance of appellate counsel is the submission of the appellate record and briefs as well as the testimony of appellate counsel. Upon a review of these materials it is clear to this habeas court that there has been no deficiency in the performance of Atty. Wescott, consequently, the count alleging ineffective assistance of appellate counsel is summarily dismissed.
This matter came on for trial before this Court on May 8, 2007 and again on May 30, 2007 at which time testimony was received from the petitioner, his appellate counsel, Atty. William Wescott, and his trial defense counsel, Atty. Donald O'Brien. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Hartford, under Docket Number CR01-178492 entitled State vs. Brown. The petitioner, after a trial to the jury, was convicted of all counts.
2. The petitioner was sentenced by the court, Mulcahy, J., to a total effective sentence of thirty-six years to serve.
3. Attorney Sarah Bernstein initially represented the petitioner, however she was replaced and Attorney Donald O'Brien represented the petitioner at trial. The petitioner was represented by Attorney William Wescott on appeal.
4. Prior to the appointment of Atty. O'Brien, the petitioner had filed a speedy trial motion. Upon appointment of Atty. O'Brien as the special public defender, the petitioner voluntarily withdrew his speedy trial motion.
5. The jury reasonably could have found the following facts. "The defendant met Pauline Lindo in 1992. They dated for several months in 1992 and resumed their relationship in 1997. In May 2001, however, Lindo ended the relationship and told the defendant that she was dating someone else. The defendant responded negatively to Lindo's decision and told her that he did not want to break up. He called her home frequently and began stopping by her house to wait for her to return from work.
6. "On June 4, 2001, the defendant quit his job as a result of being reprimanded by his boss. After leaving work, he withdrew $800 from a bank and went to Sigourney Street in Hartford, where he purchased a Raven .25 caliber semiautomatic handgun from a man he knew from the neighborhood. Before the defendant left, the man loaded the gun with six rounds and instructed the defendant on how to use it.
7. "At approximately 11:30 a.m., the defendant proceeded to a health care center in Manchester where Lindo was working as a certified nurse's assistant. He approached her in the dining room of the facility as she was serving lunch to the patients. Lindo told the defendant that he would have to wait to speak with her until after her shift ended. At about the same time, Wanda Dawe, the charge nurse at the facility, asked Lindo to take a patient to a hospital. Upon hearing this request, the defendant pulled a gun out from behind his back and put it to Lindo's head. He grabbed her and pulled the trigger, but the gun did not fire. The defendant flipped a switch on the gun and pulled the trigger several more times, but the gun still did not fire. Lindo pleaded with the defendant to leave the dining room and to stop pulling the trigger on the gun. The defendant grabbed Lindo by the shirt and pulled her into a nurses' station nearby. While in the nurses' station, the defendant struggled with Lindo and continued to pull the trigger of the gun. Although the gun made a clicking noise each time that the defendant pulled the trigger, it did not fire a gunshot.
8. "In the meantime, several of Lindo's coworkers tried to come to her aid. Maxine Cosgrove, a cook and dietary aide, heard Lindo yelling from the nurses' station. She approached the room and told the defendant to leave Lindo alone. As he continued to struggle with Lindo, the defendant turned and pointed the gun at Cosgrove. Cosgrove ran to the next office and called 911. Joanne Thulin, a nurse supervisor at the facility, and Dawe also tried to assist Lindo. While Thulin was attending to a patient, she heard that there was a fight in the nurses' station and immediately went to find out what was happening. She saw the defendant and Lindo struggling and then noticed that the defendant was holding a gun. When she saw the gun, she backed out of the room and ran to another part of the facility where she called 911. Dawe also heard that there was an altercation in the nurses' station between the defendant and Lindo. She ran to help Lindo, but as she entered the room, the defendant pointed the gun at her and then raised it above his head. She ran out of the building with Thulin and called the police.
9. "In addition, Benny Ingenito, a maintenance worker at the facility, entered the building as these events were unfolding. He walked past the nurses' station and saw the defendant and Lindo struggling. Ingenito stopped in front of the door, at which point the defendant pointed the gun toward him. Ingenito backed away and left the building. Donna Hennessey, another charge nurse, also tried to assist Lindo; She was serving lunch to a patient when she heard a loud commotion coming from the dining room area. As she approached the nurses' station, Hennessey saw the defendant beating Lindo. Hennessey entered the room and pulled the defendant away from Lindo. The defendant grabbed Hennessey by the neck and put the gun to her head, pulling the trigger twice. Again, the gun failed to fire, although it made the same clicking noise that Lindo heard before. Hennessey wrestled herself away from the defendant and ran down the hall to call the police.
10. "After Hennessey escaped, Lindo twisted the defendant's arm, causing him to drop the gun. She kicked it to Hennessey, who had returned to help her, and Hennessey picked it up and ran out of the room. The defendant tried to chase her, but Lindo pushed him to the floor. He stood up and ran out the back door of the facility. He got into his car and quickly drove toward the exit of the parking lot, where he was stopped by the police."
State v. Brown, 97 Conn.App. 837, 839-41, (2006), cert. den. 280 Conn. 944 (2006).
11. 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 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 . . . 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, 229 Conn. 397 at 422-23 (1994). The burden of proof in a habeas petition is on the petitioner.
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's 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. 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 defendant 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 performance may have been substandard, will result in denial of the petition.
A habeas court knowing the outcome of the trial, "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 attorneys 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).
In the instant case, the petition contains allegations involving the failure of the petitioner's counsel to obtain and use allegedly exculpatory material, however, there is a total lack of proof supporting these allegations. The petitioner has failed to introduce any evidence at the habeas trial, aside from his own self serving statement that he did not commit the crimes alleged, that could even remotely be called exculpatory. The allegation against his previous counsel is serious, however, it is totally without any support. Another allegation in the petition is that the counsel failed to use the prior Whelan statements of Rivard, Hall and Lindo. Notwithstanding this allegation, the habeas court is unaware of what may, or may not, be contained within these alleged statements (even assuming that they might have been admissible at trial) because the statements were never produced at the habeas trial. Finally, the petition alleges that the trial defense counsel failed to properly cross examine the witnesses. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 US. 668 at 688 (1984).
The Court finds the petitioner's version of events to be wholly lacking in credibility and in stark contrast with the believable testimony and evidence presented at the criminal trial.
Counsel are cautioned against filing allegations in petitions for which they lack a good faith basis to believe are true. Any factual statement in a pleading that is certified by counsel is implicitly presented to the court as one for which there is some good faith belief on the part of the counsel that there is evidence available to support that assertion.
Justifiably, then, the burden of persuasion in a habeas case rests with the petitioner 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, 229 Conn. 397 at 419 (1994). There is, therefore, a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
Moreover it is not even 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).
In the instant case, the petitioner has failed to present any affirmative evidence that would support a finding of ineffective assistance by counsel for failure to properly cross examine the witnesses. This Court was not presented with any real evidence, other than an unsupported assertion of innocence by the petitioner. Simply put, there is essentially no credible evidence that Attorney O'Brien was, in any way, ineffective. Indeed, if it is possible, there was even less that Attorney Wescott was ineffective.
The Strickland standard for ineffectiveness has not even come close to being met on either of the two prongs. It is indisputable that a criminal defendant is entitled to the representation of trained and competent legal counsel, however, "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1984)." Yarborough v. Gentry, 540 U.S. 1 (2003).
Accordingly, the Petition for a Writ of Habeas Corpus is denied.