Opinion
No. CV 05-4000330
May 4, 2009
MEMORANDUM OF DECISION
The petitioner, Terance Elsey, alleges in his petition for a Writ of Habeas Corpus initially filed on February 7, 2005, and amended on June 18, 2008, and again on July 30, 2008, and for a third time on September 2, 2008, that he was denied the effective assistance of trial counsel and appellate counsel, that he was denied due process in that the state failed to disclose exculpatory evidence, that the state improperly elicited evidence from petitioner, that trial counsel, had a conflict of interest in that he had represented the brother and son of the victims prior to trial, and that appellate counsel had failed to brief the issue of prosecutorial misconduct on appeal, all in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and article first, sections eight and nine of the Connecticut Constitution. For reasons set forth more fully below, the petitioner has failed to meet his burden of proof and the petition shall be denied.
This matter came to trial on December 3, 2008 and January 5, 2009. The Court heard testimony from the petitioner, his former trial counsel, Herman Woodard, Sidney Cooper, who testified about Wayne Stephens and his reputation for lack of veracity, Attorney Thomas Farver who offered expert testimony, and Senior Assistant State's Attorney Louis Luba, Jr. In addition petitioner entered into evidence transcripts of the trial and sentencing, a transcript of Wayne Stephens' hearing on his Motion for Modification of Sentence, a Motion for Giglio Material filed by Attorney Woodard, a letter from Attorney Woodard to the Statewide Grievance Committee, the state's witness list, court records of Richard Stevens, a letter from petitioner's appellate counsel, Richard Cramer, a copy of the appellate decision, and a police incident report. Respondent offered a copy of a transcript of the resentencing in accordance with the appellate court decision, a copy of a transcript requesting a sentence modification, a copy of the information, the sentence modification application, the judgment, two motions for modification of sentence, the judgment file, the arrest warrant application, the search warrant, and a Hartford Police Incident Report. The court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACTS
1. The petitioner was a defendant in a criminal case in the Judicial District of Hartford under docket number CR00-187607. He was charged with Accessory to Arson in the first degree, in violation of C.G.S. § 53a-8 by way of § 53a-111a(1); Conspiracy to Commit Arson in the first degree, in violation of C.G.S. § 53A-48 by way of § 53a-111a(1); Criminal Attempt to Commit Assault in the first degree, in violation of C.G.S. § 53a-49 by way of § 53a-59(a)(1); Conspiracy to Commit Assault in the first degree, in violation of C.G.S. § 53a-48 by way of § 53a-59(a)(4); and three counts of Reckless Endangerment in the first degree, in violation of C.G.S. § 53a-63.
2. The matter was tried to a jury on January 22, 23, 24 and 28, 2002, the Hon. Kevin P. McMahon presiding.
Petitioner's Exh. 1, 2, 3, and 4.
3. The jury could have reasonably found the following facts to be true regarding the underlying offenses. "On January 12, 2000, three people were residing in a house in New Britain. At about 12:30 a.m., the occupants heard numerous gunshots. Several bullets entered the house through the windows and the walls. Some of the bullets entered a living room, where one of the victims, a young man, was watching television. The young man dove to the floor and told the other victims to call the police. One of the other victims called the New Britain police.
4. "The sound of the gunshots alarmed other people in the neighborhood and caused them to look out the windows in their homes. A woman living next door to the victims' house looked out her window and observed a small fire burning on the side of the victims' house. The fire, located at the ground level, was approximately five feet wide and one foot tall. It died out on its own within a few minutes but caused minor damage to the house. In addition to surprising the woman, the gunshots startled two men in the house across the street from the victims' house. The two men saw two or three unidentified men near the victims' house and called the police. The men in the house then observed the unidentified men run to a black Pontiac Grand Am car. Both of the men in the house noted that the unidentified man who got into the backseat of the car was wearing a flannel shirt with a white pattern. The car left the scene, and the men in the house were unable to determine if there was a license plate on the car.
5. "Minutes after the gunfire, a Newington police officer saw a black Pontiac Grand Am car without a rear license plate heading northbound on the Berlin Turnpike. The officer stopped the car and noticed that there were three men inside. The man in the rear seat was wearing eyeglasses and a white or light colored shirt. The officer was aware, via a Newington police broadcast, of the earlier shooting in New Britain. The officer spoke to the driver of the car, who claimed that he had no identification. He was able to provide only the rental agreement for the car. The driver explained that he had just come from the New Britain area. The officer suspected that the men in the car were associated with the shootings and fire, but before the officer could conduct further investigation, the car sped off. The officer gave chase but was unable to catch up to the car. Two other police cruisers and one state police trooper joined the chase.
6. "The chase, which continued with the police vehicles reaching speeds of 100 miles per hour, ended abruptly when the Pontiac smashed into a concrete wall after turning off an exit in Hartford. The state police trooper was the first to reach the scene and witnessed two men, who had been sitting in the front seats, running away. The man in the backseat, wearing a light colored shirt, left the car and, ignoring the trooper's commands, ran from the scene of the accident. Other local police and state police trooper units arrived on the scene, but despite the presence of a K-9 unit, were unable to locate the three men. The police brought to the accident scene the two men who had witnessed the events at the victims' house. Both men stated that the car at the scene of the accident was the same black Pontiac Grand Am that the unidentified men had entered outside the victims' house.
7. "The police then turned their attention to the car. They learned that Robert Lane had rented the car. Robert Lane is the father of Ahmad Lane, a friend of Ronald Hughes, the defendant's cousin. Inside the car, the police found a pair of wire rimmed eyeglasses, a cell phone registered to the defendant and another cell phone registered to Hughes. The police also discovered latent fingerprints on the car. The latent fingerprints matched the defendant's known fingerprints for his thumb, and index and middle fingers. In addition, the gasoline cap of the car was missing.
8. "Further investigation of the cell phones revealed that there were at least eight calls made between the defendant's cell phone and Hughes' cell phone between 9:30 and 10:30 p.m. earlier that evening. In addition, there was a call from the defendant's cell phone to a female friend of the defendant at 11:55 p.m., approximately thirty-five minutes before the crimes at issue. The defendant's cell phone account was active, but it was deactivated the day after the incident.
9. "The police also investigated the scene at the victims' house. Near the scene of the fire, the police found a cigarette lighter and a champagne bottle with a burned label and gasoline inside. The police also found five nine-millimeter shells, all from the same gun, and a .22 caliber bullet. Inside the victims' house, the police recovered three nine-millimeter bullets and two .38 caliber bullets. There were eight bullet holes in the house, which, along with the presence of the two different caliber bullets, led the police to believe that at least two different guns were involved in the shooting.
10. "Twelve days after the shooting, the police searched the defendant's house. The police recovered various paraphernalia related to the defendant's cell phone that was found in the car, a new cell phone, an unfired .22 caliber round, a photograph of the defendant wearing wire rimmed eyeglasses, an empty eyeglass case that fit the recovered eyeglasses, a pair of contact lenses and a blank application for a pistol permit. Notably, there was not another pair of eyeglasses in the defendant's apartment. The .22 caliber round was the same as the one recovered at the scene of the crimes. A master optician compare the wire rim eyeglasses recovered at the scene of the car crash with the defendant's contact lenses. The master optician testified that "[t]hese particular eyeglass lenses [that were found in the car] do match these contact lenses [that were found in the defendant's apartment]. So, these eyeglasses would work for whoever wears these contact lenses." When asked, "Did anyone other than the person wearing these contact lenses wear these glasses?" the master optician replied, "That would be unlikely because it's a very strong prescription and because they match at that certain level of strength."
State v. Elsey, 81 Conn.App. 738, 740-743, 841 A.2d 714, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004).
11. "The police also learned that the defendant's family and the victims had a previous relationship. A son of one of the victims had lent his car to a friend. That friend used the victim's car to rob Hughes, the defendant's cousin. The next day, the defendant's brother said to a son of one of the victims, "I can't get you, so I know where your mom lives and I'm going there tonight." The son testified that the defendant's brother knew where the mother resided. The defendant was subsequently arrested, tried and convicted."fn2
12. Following a trial of the case to a jury, the petitioner was convicted of all counts as charged and was, thereafter, sentenced by the Court, McMahon, J., to a total effective sentence of thirty-five years, suspended after fifteen years, with five years probation.
Petitioner's Exh. 5, p. 35.
13. The petitioner was represented at all times in the trial court by Attorney Herman Woodard, Jr. Mr. Woodard testified that he had held the position of prosecutor in G.A. 14 in Harford and had worked for the firm of Halloran Sage for a period of three years. At the time he represented petitioner, Mr. Woodard was a sole practitioner whose practice consisted mostly of criminal defense work and some personal injury matters. He had handled approximately twenty criminal trials prior to his representation of petitioner.
14. Attorney Woodard further testified that he discussed the facts of the case with the petitioner when he was first retained. He then met with the prosecutor and obtained police reports and discussed these with petitioner and his investigator, Mr. Gates at various times prior to trial. In addition he filed discovery motions and a Motion for Giglio Material. From the response to the Giglio Motion he learned that a Wayne Stephens would be testifying for the state at trial. The fact that on January 9, 2002, Mr. Stephens received a sentence modification was not disclosed in the response to the motion. Nor did petitioner ever tell Attorney Woodard or his investigator that he had grown up with Wayne Stephens.
Petitioner's Exh. 6.
Petitioner's Exh. 7, p. 10.
Petitioner's Exh. 10.
Petitioner's Exh. 8.
15. Attorney Louis Luba testified that Attorney Woodard was noticed "late" in the trial that the state was calling Wayne Stephens as a witness. He also stated that he did not give Wayne Stephens any preferential treatment for testifying.
16. Attorney Woodard discussed with petitioner the fact that he had represented in the past someone named Richard Stephens, but not a Wayne Stephens. Just before trial he learned that the Richard Stephens he had represented was related to the victims. He discussed this fact with the petitioner. The petitioner never informed him at any time that he was concerned about his representation or the strategy he was using in preparing for and following through at trial.
17. The petitioner appealed from the judgment of conviction. On appeal, the petitioner raised three claims: first, that there was insufficient evidence to support his conviction; second, that the prosecutor committed prejudicial misconduct during closing arguments; third, that petitioner's rights to be free of double jeopardy were violated by his separate sentences for the conviction of the three conspiracy counts. The Appellate Court affirmed the judgment as to the first two grounds, and reversed and remanded the matter to the trial court on the third ground with direction to combine the conspiracy convictions and for resentencing. State v. Elsey, 81 Conn.App. 738, 841 A.2d 714, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004).
18. Additional facts shall be discussed as necessary.
DISCUSSION
The third amended petition raises claims in five counts: first, a due process violation premised on the failure to disclose exculpatory evidence; second, a due process violation based on his privilege not to incriminate himself; third, a claim that the petitioner's trial defense counsel operated under an actual and/or potential conflict of interest; fourth, ineffective assistance by trial defense counsel; and fifth, ineffective assistance by appellate counsel.
I.
In the first count, the petitioner alleges that his right to due process was violated because the state failed to disclose exculpatory evidence. According to the petitioner's allegations, the state added Wayne Stephens to the witness list on January 17, 2002, five days before the start of the petitioner's criminal trial. Wayne Stephens' testimony was the only evidence that the state provided as to motive. Two weeks before trial, on January 9, 2002, Wayne Stephens received a modification on his sentence in CR99-77552 in the Superior Court, Judicial District at New London, by the Honorable Susan Handy, Judge. At the time of the petitioner's trial, Wayne Stephens had sentence modifications pending in two other cases, CR97-158197 and CR97-0158701, which were modified less than two weeks after testifying in the petitioner's criminal trial.
According to the petitioner, the state did not disclose the foregoing information regarding Wayne Stephens' sentence modifications. The petitioner asserts that there is a reasonable probability that, had the information about the sentence modifications been disclosed in time for them to be used by the defense during the petitioner's criminal trial, that he would have been acquitted of some or all of the offenses with which he was charged. The petitioner further asserts that the state's failure to so disclose deprived him of a fair trial and violated his rights under the Fifth, Sixth and Fourteenth Amendments to the Unites States Constitution and Article First, Sections Eight and Nine, of the Connecticut Constitution. The respondent raises procedural default as an affirmative defense to the claim in count one premised on the fact that the petitioner failed to raise this due process claim on direct appeal. The petitioner's reply denies that procedural default applies to the clam in count one.
"In discussing the principles that govern review of a respondent's affirmative defense that a habeas claim is procedurally defaulted, [our Supreme Court has] recognized that, as a general rule, [t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule . . . [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or . . . some interference by officials . . . would constitute cause under this standard . . . A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing . . ." (Citation omitted.) Borrelli v. Commissioner of Correction, 113 Conn.App. 805, 812 (2009).
The petitioner argues that procedural default does not apply to the type of claim he is raising in count one — a violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The court agrees with the petitioner if a Brady violation had occurred and was unknown at the time of trial or during the ensuing appeal, then the occurrence of such a violation is sufficient cause and likely also prejudice to excuse the procedural default. Accordingly, the court concludes that the petitioner has not procedurally defaulted as to claim one.
"The United States Supreme Court has held that `the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' Brady v. Maryland, [ supra]; State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990). To establish a claim under Brady, the petitioner must establish that (1) the evidence allegedly suppressed was favorable to him, either because it was exculpatory or impeaching, (2) the evidence was suppressed by the state, either willfully or inadvertently, and (3) prejudice resulted from its absence. State v. Ortiz, 280 Conn. 686, 717, 911 A.2d 1055 (2006)." Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 389 (2009).
The petitioner's first requirement here is showing that the evidence allegedly suppressed was, in fact, favorable to him. The evidence shows that on November 30, 2001, a motion for modification of sentence was filed in the judicial district of New London by Attorney Robert Pickering, who represented Wayne Stephens in docket number CR99-0077552. The motion indicated that Stephens had been granted parole as of June 22, 2001. Earlier in 2001, Stephens had a federal detainer placed on him and was going to be deported once his sentences had expired or he was released from parole. Because Stephens would not be on probation following the expiration of his sentences, he sought the sentence modification to facilitate and advance the deportation date and expressed so in the sentence modification motion. Respondent's Exhibit G. The witness list submitted by the state in State v. Terance Elsey, which is dated January 7, 2002, does not identify Wayne Stephens as a witness. Petitioner's Exhibit 9. After a hearing on January 9, 2002, Judge Handy granted the motion for modification of sentence.
Apparently on January 12, 2002, Attorney Woodard filed a motion for Giglio material. On January 17, 2002, the state disclosed Wayne Stephens as an additional witness by way of an addendum to the original witness list and as a response to the petitioner's Giglio request. Petitioner's Exhibit 10. The addendum and response indicates that: "No specific consideration has been promised or received in exchange for information or testimony in relation to this investigation or prosecution." Id. The petitioner's criminal trial commenced on or about January 22, 2002. Wayne Stephens testified on January 24, 2002. Petitioner's Exhibit 3, at pgs. 488-96.
The motion is dated January 12, 2001. The certification indicates, however, that the motion was hand-delivered to the state's attorney for G.A. 15 on January 12, 2002.
See Gigilo v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). "Our Supreme Court has recognized that `[i]mpeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused.' (Internal quotation marks omitted.) State v. Monteeth, 208 Conn. 202, 213, 544 A.2d 1199 (1988); see also Giglio v. United States, [ supra]; State v. Ortiz, 280 Conn. 686, 717, 911 A.2d 1055 (2006). The purpose of requiring the state to disclose impeachment evidence to a criminal defendant is `to ensure that the jury knows the facts that might motivate a witness in giving testimony . . .' (Internal quotation marks omitted). State v. Paradise, 213 Conn. 388, 400, 567 A.2d 1221 (1990), overruled in part on other grounds by State v. Skakel, 276 Conn. 633, 693, 888 A.2d 985, cert. denied, U.S. 127 S.Ct. 578, 166 L.Ed.2d 428 (2006)." Walker v. Commissioner of Correction, 103 Conn.App. 485, 492-93, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).
On March 4, 2002, Attorney Pickering filed a second motion for modification of sentence dated February 25, 2001. Respondent's Exhibit H. This second motion indicated that Mr. Stephens had successfully pursued a sentence review in G.A. 12 in Manchester subsequent to the January 9, 2002 sentence modification granted by Judge Handy. The Manchester sentence modification was requested and granted on the identical ground as Judge Handy's prior modification: to effectuate Mr. Stephens' deportation more expeditiously. The second motion for modification of the New London sentence again identified as the only purpose for the modification of Mr. Stephens' sentence that it would result in his immediate deportation. After a hearing on March 13, 2002, Judge Handy denied the second motion for sentence modification. Respondent's Exhibit C.
The motion is dated February 25, 2001, but the certification indicates copies were mailed out on February 27, 2002. The first page bears a date stamp indicating the motion was filed in judicial district of New London on March 4, 2002.
Attorney Pickering indicated during the hearing that there were two grounds that supported granting the motion. First, that the modification would advance Mr. Stephens' deportation. Second, that Mr. Stephens had "grown" during his approximately two-year term of incarceration. Attorney Pickering communicated to Judge Handy that "[Mr. Stephens] testified in a matter for the state, which was highly unusual. The Wayne Stephens [he] knew of old would never have even talked to the state. So, I'm offering that, not so much as justification for the motion it's rather to show you that Mr. Stephens has grown up and is more of a law abiding citizen now than he was before." Id., at pg. 3. Judge Handy then asked the state for its position. The prosecutor responded as follows: "Your Honor, I think Mr. Stephens already got consideration from our office." Id. The prosecutor subsequently reiterated ". . . that Mr. Stephens ha[d] already received enough consideration from [his] office." Id., at pg. 4.
Judge Handy also used the term consideration. First, Judge Handy indicated that she gave Mr. Stephens consideration when he originally was sentenced to two and one-half years instead of the three years requested by the state, to be served concurrently instead of consecutively. Judge Handy again used the term `consideration' when she reduced Mr. Stephens' sentence in January of 2002, indicating she thought she had given him "ample consideration in [his] requests." Id., at pg. 5.
The appearance of the term `consideration,' especially if understood in the context of contract law, would at first glance easily lend itself to support a claim that Mr. Stephens received some benefit as a result of testimony in State v. Elsey. Such a claim would be relying, however, on a distorted understanding of the term `consideration' as used during the March 13, 2002 hearing. It is quite clear that the context in which the term `consideration' was used during the March 13, 2002 hearing was in the generic sense; that is, thoughtful or sympathetic regard for others or something that should be considered in decision making. Furthermore, there was no indication whatsoever in either the January 9, 2002 or March 13, 2002 transcripts that Mr. Stephens received the sentence modification in exchange for testifying for the state. Furthermore, Attorney Luba testified at the habeas corpus trial that he did not give Wayne Stephens any preferential treatment for testifying.
Based upon the foregoing, the court concludes that the petitioner has failed to show that the evidence allegedly suppressed was favorable to him, either because it was exculpatory or impeaching. There is no evidence that the state had an agreement with Mr. Stephens and that he would derive some benefit in exchange for his testimony. The claim in count one is without merit.
II.
The petitioner's claim in count two also asserts a due process violation, although this claim is premised on prosecutorial misconduct arising from elicitation of evidence from a witness. More specifically, the petitioner alleges that "[d]uring its case-in-chief, the state elicited evidence from the case's primary investigator, Detective Michael Baden, that the petitioner, prior to his arrest had failed to show up for a scheduled interview with the police." Third Amended Petition, at pg. 4. The petitioner claims such elicitation unconstitutionally burdened his right not to incriminate himself. The respondent's return raises procedural default as a defense to the claim in count two because the petitioner did not raise this due process claim either during the criminal or on appeal. The petitioner's reply asserts as cause and prejudice ineffective assistance of counsel for failing to pursue this claim on direct appeal. The petitioner further indicates that "[t]he factual basis supporting the petitioner's claims are set forth in counts four and five." Reply, at pg. 2.
Given the foregoing, the court will address the due process claim in count two within the context of the claim of ineffective assistance in counts four and five, the ineffective assistance of trial and appellate counsel claims.
III.
The third count alleges that the petitioner's trial counsel, Attorney Woodard, had an actual and/or potential conflict of interest. Attorney Woodard had previously represented Richard Stephens, the brother and son of the victims, prior to the petitioner's criminal trial. According to the petitioner, Wayne Stephens, Richard Stephens' brother, was one of the state's primary witnesses against the petitioner.
Attorney Woodard testified at the habeas corpus proceeding that he discussed with the petitioner the fact that in the past he had represented someone named "Stephens." Attorney Woodard reviewed the police reports, including a New Britain Police report that mentioned Wayne Stephens, brother of Richard Stephens. The fact that Wayne Stephens was mentioned in a police report did not, according to Woodard's testimony, make him aware who Wayne Stephens was or that he was related to the victims or to a prior client. However, just prior to trial, Attorney Woodard learned that the Richard Stephens he had previously represented was related to the victims of the offenses the petitioner was being prosecuted for, as well as to Wayne Stephens. Attorney Woodard discussed this development with the petitioner, who never informed him at any time that he was concerned about his attorney's representation or trial strategy. The petitioner testified, however, that if he had known that that Attorney Woodard had previously represented Richard Stephens, he would have looked for another attorney to represent him. The court does not find this testimony by the petitioner to be credible and, accordingly, credits Attorney Woodard's testimony over that of the petitioner.
". . . [T]he United States Supreme Court [has cautioned] that `the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance.' (Emphasis added.) Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). `To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party.' (Emphasis added.) Danner v. United States, 820 F.2d 1166, 1169 (11th Cir. 1987), cert. denied, 484 U.S. 1012, 108 S.Ct. 713, 98 L.Ed.2d 663 (1988)." Blakeney v. Commissioner of Correction, 47 Conn.App. 568, 584-85, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). See also Holmes v. Commissioner of Correction, 107 Conn.App. 662, 665, 946 A.2d 291, cert. denied, 288 Conn. 905, 953 A.2d 649 (2008).
The petitioner here has failed to show any specific instances that indicate there was such impairment or compromise of his interest for the benefit of another party. Thus, the petitioner has failed to demonstrate that Attorney Woodard was operating under an actual or potential conflict of interest.
IV.
In the next count, the petitioner alleges ineffective assistance by Attorney Woodard premised on an enormous number of deficiencies. These many alleged deficiencies can, however, be handily grouped to facilitate the discussion of the claims. The standard this court must apply to these clams is well-established."A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [ 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995) . . . It is axiomatic that the right to counsel is the right to the effective assistance of counsel . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006) . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied. (Citations omitted; internal quotation marks omitted.) Sastrom v. Mullaney, [ 286 Conn. 655, 661-62, 945 A.2d 442 (2008).]" Mozell v. Commissioner of Correction, 291 Conn. 62, 77 (2009).
1.
The first grouping of claims directed against Attorney Woodard begins with the allegation that he failed to properly investigate the state's sole motive witness, Wayne Stephens. Such investigation would have revealed favorable and available evidence of his receipt of sentence modifications around the time of his testimony. Such investigation would also have revealed evidence of the availability of witnesses who could provide testimony that would impeach Wayne Stephens' credibility and his testimony. Attorney Woodard's decisions regarding the case were based upon this lack of investigation. Furthermore, Woodard additionally failed to: seek a continuance to investigate Wayne Stephens; object to the late endorsement of him as a motive witness; request a pretrial determination of the reliability of his testimony; request that the court limit the purposes for which his unsubstantiated testimony was used at trial; move that the court order the state's attorney to disclose and present any information corroborating his testimony; file a motion to exclude his testimony; object to his hearsay testimony; properly cross-examine him concerning the circumstances and reliability of his identification testimony; and request cautionary jury instructions in regards to his testimony.
"While it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility . . . In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation, but by demonstrable realities . . . One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence." (Internal quotation marks omitted.) Torres v. Commissioner of Correction, 84 Conn.App. 561, 566-67, 854 A.2d 97 (2004).
The court has already extensively addressed Wayne Stephens in the context of count one. That prior discussion fully addresses the allegation pertaining to his receipt of sentence modifications. As to the allegation pertaining to Stephens' reliability, the petitioner did present testimony from Sidney Cooper, who had known Wayne Stephens since their teenage years. Cooper testified that Wayne Stephens had a poor reputation for truth and was not a good person. However, on cross-examination Cooper admitted that if he had known about the petitioner's criminal trial, he would not have contacted Attorney Woodard and volunteered to testify. Cooper himself also had numerous felony convictions, which itself would call into question his own veracity should he have testified.
While the petitioner has averred many claims against Attorney Woodard and his purported failures vis-a-vis Wayne Stephens, the petitioner has not presented any concrete evidence that affirmatively proves deficient performance. Even assuming such deficient performance, the petitioner has not demonstrated that there is a reasonable probability that, but for Woodard's alleged unprofessional errors, the result of the proceeding would have been different.
2.
The second and third groupings of allegations pertain to fingerprint and gun evidence. According to the petitioner, Attorney Woodard failed to conduct any investigation into the reliability of the state's fingerprint and gun evidence. Such investigation would have revealed the unreliability of the evidence. Attorney Woodard also is alleged to have failed to consult with experts concerning the fingerprint and gun evidence. Such consultations would have enabled him to impeach the reliability of the evidence had he also called the experts as witnesses during the criminal trial.
The petitioner presented testimony from Attorney Farver, his expert witness on the standards of representation by criminal defense counsel. Attorney Farver offered his opinions in support of the petitioner's claims. What the petitioner has not proven, however, is that the fingerprint and gun evidence in fact were unreliable, that any investigation would have determined such evidence was unreliable, or that consultation with experts and calling them as witnesses would have resulted in the outcome of the criminal trial being any different. While the petitioner has presented opinions about what was done or not done by Attorney Woodard, he has in no way proven that he received ineffective assistance of counsel.
3.
The next grouping of allegations pertains to the sequestration of witnesses. Thus, Attorney Woodard is alleged to have failed to request a sequestration order in a timely manner, request a hearing into a violation of a sequestration order imposed by the court, and file a motion to preclude Wayne Stephens' testimony after he admitted violating the sequestration order. As elaborated on in the petitioner's pre-trial brief, these allegations arise from Wayne Stephens' testimony that indicated his mother spoke to him about the criminal trial and, potentially, her testimony prior to him testifying.
"The right to have witnesses sequestered is an important right that facilitates the truth-seeking and fact-finding functions of a trial . . . Sequestration serves a broad purpose. It is a procedural device that serves to prevent witnesses from tailoring their testimony to that of earlier witnesses; it aids in detecting testimony that is less than candid and assures that witnesses testify on the basis of their own knowledge. Geders v. United States, [ 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)] . . .; see also State v. Falby, 187 Conn. 6, 26-27, 444 A.2d 213 (1982) ("[t]he obvious purpose of sequestering a witness while another is giving his testimony is to prevent the one sequestered from shaping his testimony to corroborate falsely the testimony of the other"). In essence, it helps to ensure that the trial is fair . . . A trial court must take full account of the significant objectives advanced by sequestration in discerning the proper scope of a sequestration order." (Internal citations and quotation marks omitted.) State v. Nguyen, 253 Conn. 639, 649-50, 756 A.2d 833 (2000).
The petitioner acknowledges that "[a] violation of a sequestration order does not automatically require a new trial . . . The controlling consideration is whether the defendant has been prejudiced by the violation . . . The burden rests on the party requesting the sequestration to show that the violation was prejudicial . . . If the prejudice resulting from the violation is likely to have affected the jury's verdict, a new trial must be ordered." (Internal citations omitted.) State v. Robinson, 230 Conn. 591, 599, 646 A.2d 118 (1994).
The petitioner argues that "[d]espite the sequestration order, it is likely that Wayne Stephens learned of the substance of his mother's testimony prior to testifying himself." Petitioner's Brief, at pg. 24. The petitioner also argues that it is certain that Wayne Stephens' testimony was influenced by his mother's testimony, that his exposure to his mother's testimony likely compromised both the reliability and integrity of his testimony. "In the context of the entire record — including especially the facts that Wayne Stephens was the sole motive witness and that his testimony was completely uncorroborated and based on hearsay — it is clear that the petitioner was deprived of a fair trial." Id.
The court disagrees that this is so clearly shown. The petitioner has not proven, has not made it a demonstrated reality, that he in fact was deprived of a fair trial because the sequestration order may have been violated. The court concludes that the petitioner has failed to prove by a preponderance of the evidence this fourth grouping of allegations.
4.
The fifth grouping of allegations pertains to Detective Baden's testimony. The petitioner asserts that Attorney Woodard failed to object to the improper elicitation of testimony by the state on direct examination of Detective Baden, who testified that the petitioner failed to appear for a scheduled police interview. Woodard also failed, according to the petitioner, to create an adequate record for appeal by failing to object to Baden's testimony and request curative instructions from the court. In count two, which alleged a due process violation, the petitioner averred that the elicitation of this testimony from Baden unconstitutionally burdened his right not to incriminate himself.
"[T]he [f]ifth [a]mendment, in its direct application to the [f]ederal [g]overnment, and in its bearing on the [s]tates by reason of the [f]ourteenth [a]mendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt . . . Our legislature has given statutory recognition to this right by virtue of its enactment of . . . [General Statutes] § 54-84 . . . In determining whether a prosecutor's comment has encroached on a defendant's right to remain silent, we ask: `Was the language used manifestly intended to be, or was it of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?' . . . To determine the natural and necessary impact on the jury, the court looks to the context in which the statement was made . . ." (Internal citations and quotation marks omitted.) State v. Wilson, 111 Conn.App. 614, 630-31, 960 A.2d 1056 (2008), cert. denied, 290 Conn. 917 (2009).
The petitioner relies heavily on Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000), for the claim that the prosecutor's questioning at issue in this claim violated his right not to incriminate himself. In Combs, the court joined several other circuits by concluding ". . . that application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime." Id. The facts in Combs involved the prosecution's use of a statement made by Combs to a police officer and the trial court's sua sponte jury instruction concerning the purposes for which the jury could consider that statement. The Circuit Court analyzed the prosecution's statement as a comment on pre-arrest silence, although Combs's statement itself referred not to silence but to his right to an attorney. Id., at pg. 279. The court specifically indicated that "Combs's statement is best understood as communicating a desire to remain silent outside the presence of an attorney." Id. Combs clearly is distinguishable from the facts of the instant case. The petitioner's failure to meet with Detective Baden after the petitioner indicated he wanted to speak with him in no way implicated his fifth amendment right not to incriminate himself. It stretches rational comprehension beyond all reasonable limits to argue that not showing up at an arranged appointment is the equivalent of a statement made directly to police interpreted, as in Combs, to communicate a desire to remain silent. The petitioner's failure to meet with Baden involved no invocation of the right to remain silent outside the presence of an attorney. The claim of violation of the petitioner's right not to incriminate himself is without merit.
5.
The petitioner also has a claim that cannot be grouped together with other alleged failures by Attorney Woodard. This claim is the purported failure to follow up on the trial court's postponed ruling on its objection to the state's failure to present DNA evidence. The petitioner has not presented any evidence regarding this claim. Accordingly, the courts finds that that claim has been abandoned.
V.
The petitioner's final claim is that his appellate counsel, Attorney Richard Cramer, rendered ineffective assistance. "`A criminal defendant's right to the effective assistance of counsel extends though the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution.' Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, U.S., 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). . .'To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must show [1] that counsel's performance was deficient and [2] that the deficient performance prejudiced the defense. See Strickland v. Washington, [ supra].' Ortiz v. Commissioner of Correction, 92 Conn.App. 242, 243-44, 884 A.2d 441, cert. denied, 276 Conn. 931, 889 A.2d 817 (2005). When a petitioner is claiming ineffective assistance of appellate counsel, his burden is to prove that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal. Small v. Commissioner of Correction, supra, 721-24." Charles v. Commissioner of Correction, 112 Conn.App. 349, 350-51, 962 A.2d 868, cert. denied, 290 Conn. 922 (2009).
The petitioner asserts that Attorney Cramer failed to raise and brief the following issue on appeal: prosecutorial misconduct involving the eliciting of testimony from Detective Baden regarding the petitioner's failure to appear for a scheduled interview. The petitioner here has not demonstrated that he would have prevailed on appeal had Attorney Cramer raised this unpreserved claim and, additionally, been successful in having an appellate tribunal address the claim on the merits. Based upon the evidence presented, the court is unable to conclude that appellate counsel rendered ineffective assistance of counsel.
Lastly, the petitioner's claim against Attorney Cramer includes the somewhat unusual allegation that Cramer failed to object to and correct the state's false assertion to the court that the petitioner's convictions were drug-related. The petitioner asserts that there is a reasonable probability that, but for such failure, the outcome of the sentencing proceeding would have been different as the petitioner would have received a lesser sentence. The resentencing resulted from the double jeopardy violation stemming from two of the conspiracy convictions, which were vacated by Judge Handy on July 27, 2004. In accordance with the Appellate Court's remand, the convictions were vacated and combined. There was no effect on the petitioner's total effective sentence. The petitioner has not presented any evidence whatsoever regarding this claim and the court concludes, therefore, that it is without merit.
CONCLUSION
Based upon all the foregoing, the petitioner has failed to meet his burden of proof on the claims raised in this habeas corpus petition. Judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall submit a judgment file to the clerk within thirty days of the date of this decision.
It is so ordered.