Opinion
TSRCV144005764
07-13-2016
Johnny DuPigney v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Johnny DuPigney, seeks habeas corpus relief from a total, effective sentence of seventy years imprisonment, following a jury trial, for the crimes of murder and two weapons violations. The judgment of conviction was affirmed on direct appeal, State v. DuPigney, 78 Conn.App. 111, 826 A.2d 241 (2003); cert. Denied, 266 Conn. 919, 837 A.2d 801 (2003). The petitioner also twice sought post-conviction DNA testing, under General Statutes § 54-102kk, unsuccessfully, State v. DuPigney, 295 Conn. 50, 988 A.2d 851 (2010); and State v. DuPigney, 309 Conn. 567, 72 A.3d 1009 (2013).
The petitioner's amended petition sets forth counts based of actual innocence; a variety of prosecutorial misconduct claims; improper jury charges; the trial court's denial of a request to postpone the trial because of defense counsel's illness; ineffective assistance of trial counsel; and ineffective assistance of appellate counsel. Trial counsel was Attorney Donald Dakers, and appellate counsel was Attorney Neal Cone.
Due Process Claims
Because counts two through six can be decided on the same legal principle, the court addresses the claims of judicial error and prosecutorial misconduct collectively.
In counts two, three, and six, the prosecutor for the petitioner's criminal trial, Assistant State's Attorney David Strollo, allegedly engaged in improprieties that violated the petitioner's due process rights by mischaracterizing the expected testimony of missing defense witness Kevin Moore, as alibi evidence, without a good faith basis; by cross examining the petitioner as to whether he knew how to obliterate serial numbers on firearms based only on the petitioner's record of arrest, without conviction, for such a charge; and by improper argument based on evidence that had been ruled inadmissible during trial, respectively. In counts four and five, the petitioner asserts that the trial judge improperly instructed the jury regarding its consideration of the petitioner's interest in the outcome of the trial and by failing to postpone the trial until Attorney Dakers' health improved. In its return, the respondent has raised the special defense of procedural default regarding these counts.
In Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993). The burden of proving good cause and prejudice for procedural defaults rests with the habeas petitioner. Johnson v. Commissioner, supra, at 409.
In this case, the petitioner submitted no evidence of any good cause justifying his failure to assert these claims at trial or on appeal. Good cause must be external to the defense and be some factor besides attorney error. Jackson v. Commissioner, supra, at 137. The mere failure of counsel to recognize the factual or legal ground does not constitute good cause to excuse default. Parker v. Commissioner, 27 Conn.App. 675, 682, 610 A.2d 1305 (1992), cert. denied, 223 Conn. 909, 612 A.2d 57 (1992).
A review of the criminal trial transcript clearly discloses that each one of the purported due process violations occurred overtly on the record. The putative missteps and/or misconduct were recognizable as such as they happened. Attorney Dakers made objection to and argument against Attorney Strollo's cross examination of the petitioner about Kevin Moore and the defacing of firearms. Also, Attorney Dakers personally communicated to the trial judge the fact that he felt ill and the symptoms he was suffering. Of course, counsel was also present during summation and the jury charge. Attorney Cone had access to all the same information for appeal.
The petitioner offered no good cause for failing to criticize these supposed transgressions at trial or on direct appeal. As noted above, attorney error does not excuse procedural default, although such omissions may form the basis for an ineffective assistance claim as this petitioner has asserted in counts seven and eight of this amended petition. In light of these procedural defaults, the court must deny habeas corpus relief as to counts two through six.
Actual Innocence Claim
Habeas corpus relief in the form of a new trial based on actual innocence requires the petitioner to satisfy the criteria set forth in Miller v. Commissioner, 242 Conn. 745, 700 A.2d 1108 (1997).
The Miller criteria comprises a two-part test which requires a habeas petitioner asserting an actual innocence claim to prove, by clear and convincing evidence, that:
1. The petitioner is actually innocent of the crime for which he or she stands convicted; and
2. No reasonable factfinder would convict the petitioner of that crime after consideration of a combination of the evidence adduced at both the criminal trial and the habeas proceeding, Miller v. Commissioner, 242 Conn. 745, 747, 700 A.2d 1108 (1997); Gould v. Commissioner, 301 Conn. 544, 557-58, 22 A.3d 1196 (2011).
The first component of the Miller criteria requires the petitioner to produce affirmative proof that he did not purposefully participate in the murder and weapons charges for which he was convicted. " Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred, " Gould v. Commissioner, supra, at 563 (emphases in original). " Clear and convincing proof of actual innocence does not, however, require the petitioner to establish his guilt is a factual impossibility, " Id.
Before embarking on this analysis, the court must confront a preliminary question. In the Gould case, our Supreme Court recognized, in a footnote, that that Court has never decided whether the affirmative evidence of innocence must be newly discovered, Id., at 551, fn.8. The Supreme Court acknowledged, however that the Appellate Court has imposed such a requirement, Id. See, Ortiz v. Commissioner, 166 Conn.App. 635 fn.3, 145 A.3d 937 (2016).
Indeed, the Appellate Court has consistently and repeatedly demanded that affirmative proof of actual innocence be newly discovered, Corbett v. Commissioner, 133 Conn.App. 310, 315, 34 A.3d 1046 (2012); Vazquez v. Commissioner, 128 Conn.App. 425, 444, 17 A.3d 1089 (2011); Gaston v. Commissioner, 125 Conn.App. 553, 558-59, 9 A.3d 397 (2010); Weinberg v. Commissioner, 112 Conn.App. 100, 119, 962 A.2d 155 (2009); Grant v. Commissioner, 103 Conn.App. 366, 369, 928 A.2d 1245 (2007); Johnson v. Commissioner, 101 Conn.App. 465, 469-70, 922 A.2d 221 (2007); Batts v. Commissioner, 85 Conn.App. 723, 726-27, 858 A.2d 856 (2004); Clarke v. Commissioner, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999); Williams v. Commissioner, 41 Conn.App. 515, 530, 677 A.2d 1 (1996), appeal dismissed 240 Conn. 547, 692 A.2d 1231 (1997). This court is, of course, bound by these holdings of the Appellate Court.
" Newly discovered evidence" is " such that it could not have been discovered previously despite the exercise of due diligence, " Skakel v. State, 295 Conn. 447, 466-67, 991 A.2d 414 (2010). Due diligence is reasonable diligence, Id. The query to be answered is " what evidence would have been discovered by a reasonable [criminal defendant] by perservering application and untiring efforts in good earnest, " Id.
An examination of the trial testimony and evidence shows that the Appellate Court accurately summarized some of the evidence that pointed to the petitioner's guilt:
" Morris Lewis, the victim, and [Herbie] DuPigney, the defendant's brother, were partners in an illegal drug selling enterprise in New Haven. The drug sales were conducted primarily at 304 Winthrop Avenue. Other members of the operation included Nick Padmore, an individual known to the participants in the trial only as " Ebony" and Eric Raven. In December 1994, following the victim's incarceration, the defendant moved from Boston to New Haven to assist his brother in the drug operation. The defendant also enlisted an acquaintance from Boston, Derrick D'Abreau, to help with the drug sales. D'Abreau moved to New Haven in the beginning of January 1995.
The victim was released from jail on January 23, 1995. That day the victim telephoned [Herbie] DuPigney at the home of Carlotta [Grinnan]. Grinnan overheard the defendant tell his brother that the victim " was not going get a . . . thing."
On January 24, 1995, at about 9:30 p.m., the victim met with the defendant, the defendant's brother, [Herbie] DuPigney, D'Abreau, Padmore, Raven and " Ebony" at 304 Winthrop Avenue. Upon his arrival at the building, the victim told everybody to leave because that was his location to sell drugs. As the argument escalated, the victim slapped the defendant and threw a chair at him. The victim then broke a bottle and attempted to attack the defendant. D'Abreau and Raven retreated to a turquoise Dodge Neon. The victim then started swiping the bottle at the occupants of the vehicle through one of its open windows. While [Herbie] DuPigney attempted to calm the victim and get him away from the car, the defendant inquired if anybody had a gun. In response, D'Abreau gave the defendant a .380 caliber pistol. The defendant then pointed the gun at the victim and told him to back off.
[Herbie] DuPigney and the defendant then entered the turquoise Dodge Neon and left the scene. The group proceeded to Eric's apartment at 202 Sherman Avenue. The defendant was visibly upset, and stated that the victim was getting on his nerves and that he was going to kill him. After a few minutes, the defendant and his brother left.
The defendant and his brother rejoined Eric and D'Abreau at 202 Sherman Avenue approximately one hour later. Between 11:15 p.m. and 11:30 p.m., all four individuals proceeded to 300 Winthrop Avenue, where the drug operation had rented a fourth floor room facing Winthrop Avenue. At that time, the victim was playing dice with Padmore and " Ebony" in front of 304 Winthrop Avenue. [Herbie] DuPigney went down to the street to try to smooth things over with the victim. It was understood that if the attempt at reconciliation was unsuccessful, then the victim would be shot. The defendant, Eric and D'Abreau observed the scene from the apartment's window. After a few minutes of conversation between the parties and with no overt indication that an accord had been reached, the victim, Padmore and " Ebony" walked off in the direction of Edgewood Avenue. [Herbie] DuPigney called out to " Ebony." After " Ebony" started to return, the defendant and Eric abruptly left the apartment.
As the victim and Padmore approached the corner of Winthrop Avenue and Edgewood Avenue, the turquoise Dodge Neon approached them. The defendant exited the vehicle and fired several shots at the victim. A brief struggle ensued, after which the defendant fired more shots at the victim. The victim died of his wounds shortly thereafter, " State v. DuPigney, supra, 112-14.
" Aisha Wilson identified the defendant as the one who had argued with and later shot the victim.
On direct examination, Wilson testified that at approximately 9:30 on the evening of January 24, 1995, she witnessed the victim and three other people engaged in an argument outside her building. Wilson was able to identify two of those people as [Herbie] DuPigney and an individual known to her only as " Ebony." She recognized the third individual as someone whom she had seen in the neighborhood on a couple of earlier occasions, although she did not know his name. Her aunt told her that the third individual was [Herbie] DuPigney's brother.
The victim was yelling at the defendant, " Just shoot me, just shoot me." As the argument progressed, the victim broke a bottle and kicked over a chair. The victim then went after the defendant with the broken bottle. Thereafter, the defendant and his brother entered a turquoise colored car, while " Ebony" remained behind trying to calm the victim.
Later that same evening, at approximately 11:15 p.m., Wilson heard someone outside her apartment building yelling, " Help, help. Fire, fire." When she looked out of the window, she saw the victim bleeding and walking in the middle of the street. The same turquoise colored car in which the defendant and his brother previously had departed then returned. The individual that had been identified as [Herbie] DuPigney's brother, and whom she identified at trial as the defendant, exited the car and shot the victim.
Wilson later testified on cross examination that she could not see the shooter's face from the apartment. She stated, however, that the shooter was wearing the same clothing as she had seen " Herbie's brother" wearing and that he arrived in the same car in which the defendant had departed earlier that evening. On redirect examination, Wilson then testified that she and her aunt had witnessed the shooting and the events leading to it from the window of the apartment in which they lived. Wilson testified that her aunt identified the shooter as Herbie's brother, " State v. DuPigney, supra, 115-17.
" Padmore contacted the New Haven police shortly after the murder, claiming to have information regarding the crime. The police interviewed him on February 1, 1995. At that time, he provided the police with a taped statement identifying the defendant as the assailant. He also identified the defendant as the shooter from a photographic array and signed the defendant's photograph. Both the taped statement and the photograph were admitted into evidence under State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).
D'Abreau testified that he was an eyewitness to the murder. He observed the shooting from the fourth floor windows of the apartment building at 300 Winthrop Street and was able to identify the defendant as the assailant on the basis of the clothing that the defendant was wearing at the time of the murder. In addition to his personal observation, D'Abreau testified that the dispute over drug dealing had been discussed previously and that if the disagreements could not be resolved, the defendant was going to shoot the victim." State v. DuPigney, supra, 120-21.
The newly-discovered, affirmative evidence of actual innocence put forward by the petitioner is that Kevin Moore states that he heard Aubrey Rodney remark that Rodney killed the victim. Both Moore and Rodney were former partners with the victim in the illicit drug trade. Moore also knew the petitioner and his brother, Herbie.
Moore testified at the habeas hearing and avowed that shortly after he was released from a stint in prison in June 1996, Rodney uttered this admission. Rodney was also killed in August 1996. For purposes of this decision, the court treats Moore's testimony as newly available because, at the time of the petitioner's criminal trial, Moore had fled the area and was a fugitive with respect to his own criminal matters.
However, the court also finds that the petitioner has failed to prove, by clear and convincing evidence, that no reasonable jury would convict the petitioner of murdering the victim after consideration of an agglomeration of the original trial evidence with Moore's revelation. None of the other individuals who were undisputably at or near the murder scene mentioned the presence of Aubrey Rodney. Not even the petitioner nor his brother spoke of Rodney as being in the neighborhood that day. Indeed, Herbie DuPigney testified that it was Derrick D'Abreau, and not Rodney, as the person whom the victim identified as his assailant and D'Abreau who had admitted to committing the fatal deed.
If the late Aubrey Rodney were the true culprit, surely the petitioner or his brother would have noted his presence in the area. Instead of establishing the petitioner's innocence, Moore's testimony would have appeared to contradict the third-party perpetrator at whom Herbie DuPigney pointed the finger. Moore's information would have been inconsistent with that of every other witness at the crime scene. Moore's accusation runs the very high risk of portraying the defense as one of desperately resorting to any means, including contradicting other defense evidence by claiming that a now-voiceless individual must have been to blame. Directing the jurors in opposite directions may lead them nowhere or worse. Multiple defenses may be beneficial at times, but where defenses are logically divergent, each may weaken the other. In this case, too many confessions belie all.
The court denies relief as to the first count claiming actual innocence.
Ineffective Assistance Claim re Appeal
The measure of professional performance of appellate counsel is the same as for trial counsel when evaluating ineffective assistance claims and that is the first prong of the Strickland test, Couture v. Commissioner, 160 Conn.App. 757, 765, 126 A.3d 585 (2015); cert. denied, 320 Conn. 911, 128 A.3d 954 (2015). However, the prejudice prong of that test focuses on the outcome of the appeal rather than the underlying criminal case, Small v. Commissioner, 286 Conn. 707, 720-21, 946 A.2d 1203 (2008). Thus, the petitioner's burden as to prejudice is to establish, by a preponderance of the evidence, that there exists " a reasonable probability that, but for his counsel's error, he would have prevailed on his appeal, " Id.
In the eight-count, the petitioner alleges that Attorney Cone rendered ineffective appellate assistance by inadequately arguing that the prosecutor engaged in misconduct by mischaracterizing Diane Butler as a substitute alibi witness; by failing to argue that the prosecutor asked the jurors to do justice through guilty verdicts; by failing to argue that the prosecutor unfairly compared the petitioner and his brother to the Dickensian villain, Fagan; by failing to assert the trial court's refusal to admit the testimony of Kevin Moore's counsel, Attorney Christopher DeMarco, as error; and by failing to raise appellate claims pertaining to absent or erroneous jury instructions on the topics of the fallibility of eyewitness testimony, the credibility of immunized witnesses, and the use of the petitioner's interest in the outcome of his criminal case when evaluating his testimony.
At the habeas trial, the petitioner produced no expert witness who was critical of Attorney Cone's appellate representation. Nor did the petitioner call upon Attorney Cone to testify regarding his conduct of the petitioner's appeal.
The total absence of testimony concerning why certain issues were raised on appeal, but not others, leaves this court with a difficult task in assessing Attorney Cone's performance on behalf of his client. This is so because the habeas court " must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " Michael T. v. Commissioner, 319 Conn. 623, 632, 126 A.3d 558 (2015), (emphasis in original). " [T]hat is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy, " Id., (emphasis added). While this presumption does not immunize every action or inaction by appellate counsel from a finding of ineffectiveness, the habeas court is allowed to " entertain the range of possible reasons [for] counsel . . . proceeding as he did, " Id., 632-33. In other words, as in this case, where the habeas evidence sits bereft of any information concerning why such issue selections were made, purposefully or otherwise, the habeas court must search for plausible reasons supporting these choices.
The petitioner decries Attorney Cone's failure to attach the then customary jury instruction informing jurors that they may consider a defendant's interest in the outcome of the case when evaluating the defendant's credibility. At the time of the petitioner's criminal trial in 2000, that particular language had been approved by our Supreme Court, State v. Williams, 220 Conn. 385, 397, 599 A.2d 1053 (1991). It was ten years after the petitioner's appeal was decided that the Supreme Court elected to exercise its supervisory power to direct trial courts to employ a modified version concerning a criminal defendant's credibility analysis, State v. Medrano, 308 Conn. 604, 631, 65 A.3d 503 (2013).
In Medrano, the high Court rejected the argument that the former instruction was unconstitutional. The new directive applied only to future trials, Id. The state of the law in Connecticut at the time when Attorney Cone litigated the petitioner's appeal, 2000 to 2003, may very well have guided appellate counsel in selecting appellate issues. The court finds that the petitioner has failed to prove the performance component of the Strickland test with respect to this specification of ineffective assistance.
Next, the petitioner laments that Attorney Cone failed to assert that certain comments by the prosecutor violated due process. While a state's attorney must avoid low blows, she or he may strike hard ones. " The mere fact that the prosecutor employed the rhetorical device of incorporating a literary theme into his closing argument did not render his remarks improper, " State v. Thompson, 266 Conn. 440, 464-65, 832 A.2d 626 (2003). The prosecutor's passing comparison of the petitioner to the unsavory Fagan from Oliver Twist falls within the bounds of acceptable argument.
Nor did the prosecutor cross the boundary of fairness by exhorting the jurors to do justice by convicting the petitioner for the murder of the victim. The prosecutor never asked the jury to do justice for the victim's family or prodded them to base their verdicts on sympathy or any other unwarranted factors. Here, the prosecutor simply urged the jury live up to their oaths and find that the state had proven its case beyond a reasonable doubt. Again, basing a due process violation on the prosecutor's precatory argument would appear unlikely to succeed.
This court has observed that, in general, appellate arguments over the propriety of prosecutorial arguments seldom produce reversals of convictions, even when the language used was deemed improper. Often, comments that offend the sensibilities of the defense are found to comprise fair comment arising from the inculpatory nature of the evidence. Counsel are entitled to " a generous latitude" during argument, State v. Medrano, supra, 611. Also, when a prosecutor has transgressed in argument or questioning, the accused has the additional burden of proving that the cumulative effect of such improprieties " so infected the trial with unfairness as to make the convictions a denial of due process, " Id., 620.
None of the allegations of prosecutorial misconduct involve asking the jury to consider facts not in evidence nor misstatements of the law. The petitioner makes no allegation that the prosecutor injected personal opinion or claimed to have special, secret knowledge regarding the petitioner's guilt. The petitioner's criticisms of the prosecutor's conduct was more of the type undermining the believability of the petitioner or other defense witnesses. One essential function of the jury is to separate proven facts from evidence which merits less credence. A prosecutor is entitled, through fair argument, to attempt to persuade the jurors of the veracity of its evidence and convince them that the defendant committed the crimes charged beyond a reasonable doubt. Appellate counsel cannot be faulted for winnowing weaker issues such as these assault on the prosecutor's conduct. The petitioner has failed to satisfy his burden of proving, by a preponderance of the evidence, that Attorney Cone was deficient in not raising these claims on appeal.
The petitioner also contends that Attorney Cone ought to have addressed on appeal the correctness of the trial judge's ruling that Kevin Moore's counsel, Attorney Christopher DeMarco, was inadmissible. To give this contention context, additional facts are necessary. During the prosecutor's cross examination of the petitioner, the prosecutor probed whether a defense witness, Diane Butler, was a last-minute choice as an alibi witness because another potential alibi witness, Kevin Moore had fled the area. The petitioner denied that Moore was ever an alibi witness. As noted earlier, Moore was to be third-party culpability witness. On redirect examination of the petitioner, Attorney Dakers procured testimony that clarified that Moore was never regarded by the defense as an alibi witness.
Attorney Dakers also tried to present the testimony of Attorney DeMarco to reinforce this circumstance. The trial judge declined to allow Attorney DeMarco to testify because his testimony would be unhelpful for the jury.
This testimony was not offered to refute contrary evidence. Instead, it was offered to bolster the petitioner's characterization of Moore's expected testimony and to negate the premise of the prosecutor's question. From the perspective of appellate counsel, Attorney DeMarco's expected testimony may have appeared cumulative to that provided by the petitioner and liable to sidetrack the trial on a tangential matter, i.e., whether Moore was an alibi witness or not.
The trial judge specifically instructed the jury as follows:
Certain things are not evidence, and you may not consider them in deciding what the facts are. They include . . . arguments and statements by lawyers. The lawyers are not witnesses. What they have said during trial . . . is not evidence.
***
Additionally, comments made by counsel during the questioning of witnesses, and, in fact, the questions themselves, are not evidence.
Appellate courts presume that jurors follow such instructions, State v. Jamison, 320 Conn. 589, 607, 134 A.3d 560 (2016). This court assumes that appellate lawyers are aware of this presumption, also. Attorney Cone may have estimated that the cumulative and tangential aspects of this testimony, along with the trial court's admonition against regarding a mere question as any evidence of the existence of facts supposed by the question, made this a weak appellate issue, with poor prospects for success.
Finally, the petitioner asserts that Attorney Cone should have pressed the issue of a lack of particularized jury instruction concerning the weaknesses of eyewitness testimony and the credibility of immunized witnesses. To repeat, no expert evidence was proffered as to whether Attorney Cone acted unprofessionally in representing the petitioner for his appeal.
First, the petitioner introduced no evidence that this issue was preserved for appeal by a request to charge or objection. Preservation of such issues in the record of the trial proceedings is required before an appellate court needs to decide the issue, State v. Dixon, 318 Conn. 495, 500, 122 A.3d 542 (2015). The type of specific jury instruction identified by the petitioner in this habeas case is not constitutionally mandated, Id., 501. It is merely a prophylactic rule resulting from our Supreme Court's supervisory power, Id.
Second, a specialized, eyewitness identification jury instruction is unnecessary where the alleged perpetrator is well-known to the eyewitness, State v. Williams, 317 Conn. 691, 704-05, 119 A.3d 1194 (2015). In the present case, the witnesses who identified the petitioner as the shooter were his cohorts, with the exception of Aisha Wilson. She recognized the petitioner as the culprit but did not know his name or his kinship to Herbie DuPigney. Asserting such an appellate claim would have been futile in this case.
A similar fate would have awaited the issue of a lack of specialized credibility instruction with respect to a witness who has negotiated leniency with the state before testifying for the prosecution. Such convictions will only be overturned where " the trial court's failure to give [the] credibility instruction likely was so harmful that reversal is the only way to avoid manifest injustice to the defendant and to preserve public confidence in the fairness of the judicial proceedings, " State v. Jamison, supra, 607.
Here, the witness to whom the instruction would apply, in the petitioner's estimation, was Derrick D'Abreau. But his testimony was corroborated by other witnesses whose credibility was unburdened by such concerns, principally Nicholas Padmore and Aisha Wilson. The petitioner has failed to prove, by a preponderance of the evidence, that Attorney Cone was ineffective with respect to this allegation.
Therefore, habeas corpus relief is denied as to the eighth count of the amended petition.
Ineffective Assistance Claim re Trial Counsel
In the seventh count, the petitioner contends that Attorney Dakers was ineffective by failing to move to strike the testimony of Aisha Wilson; by failing to move for a mistrial; by cross examining Aisha Wilson about her failure to pick out a photograph of the petitioner from a photo array; by failing to prepare defense witnesses sufficiently; by inadequately cross examining Derrick D'Abreau, Carlotta Grinnan, and Aisha Wilson; by failing to call New York City Detective Santiago as a defense witness; by improperly advising the petitioner about a plea offer; by failing to object to certain questions posed by the prosecutor in cross examining the petitioner; by failing to object to improper argument by the prosecutor; and by inadequately requesting post-verdict forensic testing of a wool hat.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra . This standard of reasonableness is measured by prevailing, professional practice. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. DaEira v. Commissioner, 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id.
If it is easier to dispose of an ineffective assistance claim for failure to satisfy the prejudice prong of the Strickland standard, then the habeas court may address that issue directly, Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993).
As to the specification of ineffective assistance for failing to present the testimony of Det. Santiago, it must be noted that the petitioner never presented him as a witness at the habeas trial either. It is incumbent upon the petitioner to establish the ways in which defense counsel's failure to present a witness negatively affected the pertinent proceeding, Henderson v. Commissioner, 129 Conn.App. 188, 195, 19 A.3d 705 (2011). " [P]rejudice cannot be demonstrated with regard to trial counsel's failure to interview potential witnesses where petitioner fails to call those witnesses to testify at the habeas trial or offer proof that their testimony would have been favorable to him at the criminal trial." Id. Therefore, this allegation of ineffective assistance fails.
Regarding the remaining allegations of substandard representation by Attorney Dakers, the court addresses the prejudice prong of the Strickland standard directly because it is dispositive. Derrick D'Abreau, Aisha Wilson, Teresa Watts, Carlotta Grinnan, Felice Via, and Herbie DuPigney all agreed that Herbie possessed and traveled in a blue Dodge Neon on the evening the victim was shot and killed. Nicholas Padmore gave the police a statement, which became substantive evidence at the criminal trial under the holding of State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86 (1986), averring that he was standing right next to the victim, his occasional compatriot in drug trafficking, when that particular vehicle pulled up adjacent to them. The petitioner exited from the passenger side of the Neon, approached to within a few feet of the victim and Padmore, and began firing at the victim with a black 380 pistol. Padmore ran for cover. Shortly afterward, he heard several more shots. Padmore also related that the DuPigneys had had an argument with victim earlier that day.
None of the petitioner's allegations of poor representation by Attorney Dakers diminish the devastating impact of Padmore's recitation of events. D'Abreau supplemented Padmore's recollection by testifying that the DuPigneys coordinated the killing of the victim beforehand and confirmed Padmore's version of the initial attack by the petitioner. Aisha Wilson, a neutral witness, corroborated D'Abreau's statements regarding the second series of shots fired by the petitioner at the victim. She identified the petitioner as the gunman although she was unaware of his name nor his relationship to Herbie DuPigney until her aunt divulged that information.
Padmore lacked any apparent reason to fabricate his identification of the petitioner as the shooter. Padmore stood within one foot of the target of the shooting. Padmore sometimes worked as a drug seller in the area for both the victim and Herbie DuPigney. Nor was there any cause to doubt the accuracy of his knowledge and description of the blue Neon from which the killer emerged and which had been identified as the same one used by Herbie DuPigney and the petitioner by several other persons, including Herbie DuPigney and the petitioner. Padmore had no agreements with the state in exchange for his statement, and he claimed a total lack of memory when called as a prosecution witness.
No amount of additional preparation of defense witnesses, expanded cross examination of state's witnesses, or more favorable jury instructions detracted from the damning evidence against the petitioner supplied by Padmore. Nor would have objections to supposedly improper argument or questioning by the state's attorney have undermined the effect of the incriminatory statement uttered by one who stood so close to the line of fire that had to dive or run for safety.
The court has thoroughly reviewed the evidence and finds no legal basis for striking the testimony of Aisha Wilson. Whether she honestly and correctly identified the petitioner as the killer was a factual issue for the jury to decide. Questions such as whether her aunt's exclamation actually occurred and, if so, whether that identification influenced Aisha Wilson's recollections also were properly before the jury. As the Appellate Court aptly noted, her testimony regarding her aunt's declaration " could be subject to many interpretations, " State v. DuPigney, supra, 118.
It would have been a remarkable coincidence that both Padmore and Wilson erroneously mistook the petitioner for the victim's murderer. No evidence linked Padmore to Wilson, nor was testimony produced to show that the police, or anyone else, educated Wilson as to the contents of Padmore's statement.
Because of Padmore's largely untarnished identification of the petitioner as the victim's assailant and the blue Neon as the vehicle from which that assailant exited and the antagonism between the victim and the DuPigneys over drug turf, there is no reasonable probability that the alleged deficiencies by Attorney Dakers affected the jury's verdict in this case. The conjunction of that evidence with the confirmatory testimony of Wilson and D'Abreau was helpful to proving the petitioner's guilt beyond a reasonable doubt but not essential to that end. Instead, it was Padmore's statement that endowed the testimony of Wilson and D'Abreau with credence. The court concludes that the petitioner has failed to prove, by a preponderance of the evidence, that there exists a reasonable likelihood that, but for the professional representation alleged, the outcome of the petitioner's criminal trial would have been different.
For these reasons, the amended petition for habeas corpus relief is denied as to all counts.