Opinion
No. CV 01-0453279
October 28, 2008
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
In a two-count amended petition, this habeas corpus petitioner claims ineffective assistance of both trial counsel and appellate counsel.
His convictions were affirmed in State v. Davis, 69 Conn.App. 717 (2002). Upon the granting of certification solely on the questions of sentence enhancements, his enhanced sentences were affirmed in State v. Davis, 263 Conn. 136 (2003), in a per curium decision.
The facts as set out in the appellate court decision follow:
In the early morning hours of August 17, 1997, the defendant was a passenger in a vehicle in Hartford with two other individuals. The three men decided to rob a drug dealer and the defendant drove one of the occupants to his car so that he could retrieve his gun. The three men drove around Hartford but could not find a drug dealer to rob. At one point in their travels, the men unsuccessfully attempted to rob a man at a pay telephone near Prospect Avenue. Eventually, the defendant and one of the other men exited the car and came upon the victim, James Boland, who had just been dropped off in front of his house. Boland, a member of the neighborhood block watch program, was armed and proficient in the use of firearms. As the defendant and one of the other men approached Boland, a gunfight ensued in which Boland returned fire. Boland and the defendant both suffered gunshot wounds.
A neighbor, Lillian Ferdinand, heard the gunshots from her second floor apartment. She saw a motorcycle with two men on it stop in the vicinity of Boland's house. She heard someone say "get lost" or "get the 'f' out of here," and the men on the motorcycle rode away. From a different vantage point, she saw Boland crouched and leaning against a fence. He was holding his check and said to her, "Lily, I've been shot . . . call the police." She called the police, went downstairs and saw Boland lose consciousness and fall to the ground.
Another neighbor, Nicholas Couloute, heard the gunshots from his third floor window. He saw the defendant lying in the driveway apron next to Boland's home. Couloute went outside and approached the defendant. As Couloute approached, the defendant propped up on his elbow, pointed a gun at him and said "get the f— out of here." Couloute retreated to his house and saw a motorcycle with two men on it approach the defendant. The defendant pointed a gun at the driver and said "get the f— out of here." Couloute returned to his house and both he and his wife saw that the defendant was wounded in the leg. Both Couloutes watched as a red, four-door Buick pulled up to the defendant. Two individuals helped the defendant into the backseat and drove away.
Hartford police arrived at the scene and Boland was pronounced dead at 1:32 a.m., from a gunshot wound to the chest. Hartford police informed other local police departments that a suspect in a homicide had sustained a gunshot injury and had left the scene in a red vehicle. At about 4 a.m. Middletown police informed Hartford police that an individual had arrived at Middlesex Hospital with gunshot wounds to his leg and arm. The defendant was subsequently transported to Hartford Hospital by the Life Star helicopter.
Nicolas Couloute and Thomas Staunton, the passenger on the motorcycle, were taken to Hartford Hospital to identify the defendant. Both Couloute and Staunton positively identified the defendant as the man they saw lying in the driveway area. Couloute also identified the red Buick, owned by the defendant's brother, as the vehicle that drove the defendant from the scene of the shooting. Based on the hospital identification, an arrest warrant was issued for the defendant.
The defendant was admitted to Hartford Hospital after undergoing surgery for bullet wounds to his left leg and arm. Two uniformed Hartford police officers guarded the defendant's hospital room and he was restrained to his bed by a leg shackle. After his surgery, the defendant requested to speak with the officers who had applied for the warrant for his arrest. Two detectives interviewed the defendant and he gave an oral statement inculpating himself in the victim's death. The defendant was discharged from the hospital and transported to the Hartford police station and placed under arrest. While at the police station, the defendant also gave a written statement inculpating himself.
At trial, Benjamin Brown, one of the occupants of the vehicle on the day of the murder, testified for the state. He confirmed that the defendant and the other individual left the vehicle and confronted the victim, and that the defendant was wounded in the confrontation. Brown further testified that when he helped rescue the defendant from the victim's driveway, the defendant stated that he thought he shot the victim.
Following a jury trial, the defendant was found guilty of felony murder, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree and carrying a pistol or revolver without a permit. The defendant was sentenced to a total effective term of 100 years in the custody of the commissioner of correction. Pursuant to § 53-202k, the court also sentenced the defendant to five additional years imprisonment, consecutive on each of the charges of felony murder, attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree for a total enhancement of fifteen years.
STANDARD OF REVIEW
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.
Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims:
"The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn.App. 674, 678, 564 A.2d 303 (1989). He must also show "that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial." Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge. ( Strickland, supra.)
With respect to appellate counsel, our Supreme Court has recently revised the standard for claims of ineffective assistance. In Small v. Commissioner, 286 Conn. 707 (2008), the court stated the new standard to require a petitioner to show a reasonable probability that he would have prevailed on the direct appeal but for appellate counsel's error. Id., at 720-22.
Unaffected by this decision is the burden of the petitioner to demonstrate that the issue not raised has merit. Counsel's failure to pursue meritless claims are not considered conduct falling below the level of competent representation as defined by our courts. ( Sekow v. Warden, 216 Conn. 678, 690 (1990); Mozell v. Commissioner, 51 Conn.App. 818, 820-21 (1999).)
The petitioner's claims must be evaluated in light of these standards.
DISCUSSION I
Initially, the court will treat as abandoned the ineffective presentation involving a public defender investigator transferring to the state's attorney's office.
There wasn't even a suggestion at the habeas trial that somehow this tainted the prosecution and trial of the petitioner and it was not briefed.
Similarly, the litany of failings stated in the amended petition have not been briefed and are treated as abandoned.
II
The petitioner's remaining claims of ineffective assistance of trial counsel evolve out of counsel's attempts to suppress statements the petitioner gave to Hartford detectives on August 18 and 19, 1997.
The petitioner relies on the testimony of a toxicologist who gave his opinion that the petitioner's cognition was impaired back in 1997 by a variety of drugs prescribed at the hospital.
When questioned further, the witness defined this "impaired cognition" to be a "thinking and perception" alteration. He made no connection between the ingestion of any mediation and his statements to the police and in fact appeared to assume that all the medication ordered was also administered to the petitioner. The hospital record does not indicate this to be so.
Of significance, was the witness' statement that this cognitive impairment would last from 12 to 24 hours after they were stopped. The last medication received by the petitioner was at 7:15 p.m. on August 18, 1997. His second statement was given on August 19 after 1:30 p.m. In that statement, the petitioner related names, times and places and activities in great detail. That the police could have collected such material without his input defies belief.
Totally rebutting the petitioner's claim is the evidence contained in the hospital record. Nurses' notes keep referring to his conditions as active and alert. He is described as asking appropriate questions and is aware of his situation. In one fascinating conversation he acknowledges that he's "up for murder." And that he's "tired of running." This appears in the nursing notes, which the petitioner's legal expert said she would have read because "it's the little details that everything shows itself. It's in the nursing notes." (Tr. P. 98.)
Testimony of two Hartford police officers also supports the respondent.
There would be no purpose served by reciting further discrepancies in this theory. This court adopts the conclusion of the Appellate Court and finds the petitioner's statements at the hospital and at the police station were voluntary and that he understood his Miranda rights and the consequences of waiving them.
III
The petitioner's claim that the identification made by two eye witnesses at the hospital should have been suppressed has also been addressed by the Appellate Court and found wanting.
The most compelling argument against the petitioner's position is that the police were looking for a murder suspect and an all points bulletin for the tri-state area was in effect. The safety of citizens and law enforcement personnel was in jeopardy.
This was hardly the time to "hold the presses" while we attempt to put together a photo array. The petitioner's injuries and condition were also a factor.
Everything about this identification, save for its being suggestive, was proper. However, the petitioner's argument here is that there was a police officer available who could have compiled a photo array. The investigating detective may have been mistaken, but no access to the photo files was available till the next day when an employee would open the office.
IV
The court concludes that there was nothing surrounding the suppression attempts to suggest ineffective assistance. The motions would have been denied in any case
But this petitioner was also unsuccessful in showing that he was prejudiced by the failure of his counsel's efforts.
The case against the petitioner was overwhelming. In addition to a cooperating accomplice, the state had DNA evidence indicating the defendant's blood in and on the barrel of the murder weapon. His blood was also found at the crime scene.
His decision to seek medical attention in Middletown instead of a nearby Hartford hospital is hardly indicative of someone who has nothing to hide.
And finally, there is his statement to a nurse, recited above, in which his guilt is certainly indicated. The petitioner's claim that he was so mentally impaired that he remembered nothing is simply not credible.
V
As for the allegation that appellate counsel was ineffective, the court's conclusions above apply.
The petitioner has not shown that but for the alleged errors of appellate counsel, he would have prevailed on his appeal.
Meritless claims at the trial level do not take on a golden glow at the appellate level.
Appellate counsel was not ineffective, but even if she were, no prejudice has been demonstrated.
CONCLUSION
The petition is denied. The petitioner has satisfied neither prong of the Strickland test.