Opinion
No. CV08-4002726
August 17, 2011
MEMORANDUM OF DECISION
This matter comes before the court for trial upon the petition of Alex Garcia (the "petitioner") challenging the legality of his detention and seeking the issuance of a writ of habeas corpus. Specifically, the petitioner is challenging his conviction by a jury of one count of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a(a), two counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-59(a)(1), two counts of assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59(a)(4), one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59(a)(1), and one count of conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59(a)(4). The petitioner was sentenced in 2007 to a total effective term of 40 years of incarceration. His conviction was subsequently affirmed. State v. Garcia, 115 Conn.App. 766, 973 A.2d 1278, cert. den., 294 Conn. 903, 982 A.2d 648 (2009).
Subsequent to the filing of the petition, counsel was appointed to represent the petitioner. Counsel thereafter amended the original petition. The amended petition alleged two counts. The first count alleged ineffective assistance of counsel on the part of his trial attorney, Jeffrey Beck, in numerous respects including, without limitation, counsel's alleged failure (i) to negotiate a plea agreement or inform the petitioner of any plea offer, (ii) to adequately investigate the circumstances that formed the basis of the prosecution, (iii) to interview prosecution witnesses or other known witnesses who could have provided favorable testimony at trial, and (iv) to retain a ballistics expert. The second count alleged that newly discovered evidence established that the petitioner is actually innocent of the crimes for which he stands convicted.
As observed by the Appellate Court, the jury could have found the following facts: "On July 30, 2004, Rudy Ortiz, the president of the Danbury Latin Kings, was involved in a fight with several young men from Stamford. Ortiz was angry about the fight and wanted revenge. Ortiz crafted a plan to seek his revenge and arranged for Sabrina Colon, who knew one of the men from Stamford, Keven Louis, to invite the Stamford men to Danbury. On August 2, 2004, the five victims from Stamford, Louis, Cliff Certillian, Kenny Poteau, Herbie Servil and Stanley Bruno, arrived at a basketball court at Eden Drive in Danbury. Waiting in the bushes to ambush the five Stamford men were Ortiz, Juan Macias, Luis Guzman, Ulises Collazo, the defendant and a few others. As the five Stamford victims walked onto the basketball court, Macias and the defendant followed them. After a prearranged signal, the defendant threw the first punch, and the remaining Danbury men ran out from the bushes to continue the assault. Gunshots were heard. The defendant had a nine millimeter assault rifle and shot Louis once in the leg and at least once more in the abdomen. Servil suffered twelve to thirteen separate stab wounds on his back, abdomen and right arm, one of which damaged his liver. Bruno ran off but was either shot or stabbed in the back, an injury which resulted in a collapsed lung." Id., at 768.
Notwithstanding the many claims alleged in the amended petition, most were not pursued and, therefore, are deemed abandoned. See, e.g., Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796-97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010). The petitioner neither advanced, nor attempted to advance, any newly discovered evidence to support the second count alleging actual innocence. As regards the first count, alleging ineffective assistance of counsel, petitioner's counsel in his closing argument conceded that he was focusing on two subparagraphs of the first count alleging that trial counsel (i) failed to subpoena a witness — Michelle Gonzalez — to testify that the petitioner and Ortiz (the head of the local Latin Kings gang) did not get along and (ii) failed to retain a ballistics expert to challenge the State's ballistics evidence.
To the extent that testimony on any remaining claims of ineffective assistance of counsel was received, albeit not argued by petitioner's counsel, the court finds that such testimony failed to support the petitioner's claims. For example, one of the claims in the amended petition alleged that trial counsel failed to negotiate a plea agreement or neglected to inform petitioner of any proposed plea agreement. Attorney Beck, however, testified that he did negotiate an offer of 20 years of incarceration (substantially less than petitioner's exposure and ultimate sentence) and the petitioner himself acknowledged having been so informed and chose to take the case to trial. Another claim alleges that trial counsel failed to adequately investigate the case or secure the assistance of an investigator to do so. Attorney Beck, however, testified credibly to his diligent efforts to investigate the matter, and the petitioner himself acknowledged speaking with Attorney Beck's investigator (thus establishing that Attorney Beck did retain an investigator) and furthering knowledge discussions with Attorney Beck.
The law regarding claims of ineffective assistance of counsel is well established. As the Appellate Court observed in Bosque v. Commissioner of Corrections, 130 Conn.App. 383 (2011), "[T]o prove a constitutional claim of ineffective assistance of counsel, a habeas petitioner must establish both deficient performance on the part of counsel and actual prejudice as a result of counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). `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 . . . To satisfy the prejudice prong, a [petitioner] 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 . . . [A] reviewing court can find against a petitioner on either ground, whichever is easier.'" (Citation omitted; internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 835, 970 A.2d 721 (2009).
"'A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.' (Emphasis in original; internal quotation marks omitted.) Davey B. v. Commissioner of Correction, 114 Conn.App. 871, 876, 971 A.2d 735 (2009)."
The petitioner's first claim that trial counsel was ineffective because he failed to subpoena Michelle Gonzalez and call her as a witness is flawed in many respects. First and foremost, he claims that, had she been called, she would have testified that petitioner and Ortiz did not get along and, therefore, petitioner would not have helped Ortiz fight the individuals who had come up from Stamford. At his habeas trial, however, petitioner failed to call Gonzalez as a witness and the Court can only speculate as to what her testimony would have been. This lack of proof fails to establish prejudice and, accordingly, is fatal to the petitioner's claim. Nieves v. Commissioner, 51 Conn App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999) ("The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense."); Williams v. Commissioner, 90 Conn.App. 431, 437, (2000) ("The petitioner's bare assertions that [a witness] was a crucial alibi witness simply do not establish prejudice.").
This fatal flaw aside, Attorney Beck testified that he and his investigator had difficulty convincing witnesses to come forward and the petitioner himself acknowledged that Gonzalez did not want to come to court. Attorney Beck knew that, at best, she would be a reluctant witness. He also knew that she was the mother of petitioner's child and, therefore, her testimony would likely be viewed with great skepticism because of this bias. Moreover, petitioner's claim that he and Ortiz did not get along with each other seems to be of little consequence given the surrounding facts. Attorney Beck acknowledged as much. Petitioner's claim is undermined by records of phone calls between himself and Ortiz leading up to the incident. Additionally, Ortiz was only one of many individuals known to the petitioner who were present at the scene. Several of petitioner's friends were there as well, including Juan Macias, Juan Melendez and others.
Given the foregoing, this Court would have attached little weight to the proposed testimony of Gonzalez even had she been presented as a witness. Finally, the testimony which Gonzalez might have offered (had it even been available) pales in significance by comparison to the strength of the State's case. The petitioner acknowledges he was present at the scene and that he did possess a weapon alleged to have been used in the assault. He was identified by a least two others as the individual who was firing a weapon at the time, and he acknowledges having made threatening statements to an eyewitness if that individual implicated him in the crime. Based on all of the foregoing, the Court finds the petitioner has failed to establish deficient performance on the part of trial counsel or the resulting prejudice required to sustain the petition.
Petitioner's remaining claim is that trial counsel was ineffective because he failed to retain a ballistics expert. It is unclear to the Court what purpose would have been served by the retention of a ballistics expert. As Attorney Beck observed, the State's ballistics expert at trial could not conclusively link the weapon that was found with the bullet fragments that were recovered (he could, at best, state that there were certain similar class characteristics). Attorney Beck was understandably comfortable with this finding and legitimately concerned that the retention of an expert might generate a more damaging conclusion.
In his closing argument, habeas counsel also suggested that a ballistics expert could have concluded that the recovered weapon was inoperable at the time of the incident. This is problematic in many respects. First, the petitioner acknowledges that there were many things he did not tell Attorney Beck, one of them being his claim that the weapon in his possession was inoperable. Petitioner can hardly be heard to complain that his trial attorney was ineffective because he didn't investigate an issue as to which the petitioner himself allegedly had knowledge but nevertheless failed to disclose during the course of the representation. Second, it is unclear how a ballistics expert could opine that the weapon was inoperable at the time of the incident. As the State's expert testified at trial, the weapon was recovered from a swamp (petitioner acknowledged that the weapon was "ditched" in a swamp at some time following the shooting) and, while inoperable when recovered with mud and muck, it was thereafter cleaned of the debris, test-fired and found to be operable in all respects. Third, it is legally irrelevant whether the weapon held by the petitioner was operable at the time of the incident. He was convicted either as an accessory or a co-conspirator as to all charges. Hence, whether or not the weapon he had was operable is inconsequential to the jury's determination of accessorial or conspiratorial culpability, i.e., he could be guilty as an accessory or co-conspirator even if it were found that he was not the shooter. Finally, and apart from the foregoing, the same flaws which were fatal to the petitioner's claim regarding the failure to call Ms. Gonzalez are likewise fatal to his claim regarding the failure to retain and call a ballistics expert at trial. No such expert was called at the habeas trial and, absent such testimony and a determination of what its impact would have been at the underlying trial, this Court can find no prejudice arising from the failure to retain and call such an expert at trial (even assuming that trial counsel's performance in this regard was deficient). Further, and as previously noted, the State presented a strong case against the petitioner and the nature of the expert testimony hypothetically suggested by petitioner, even if adduced, would be insufficient to establish the prejudice necessary to sustain the petition. Accordingly, as to this claim as well, the Court finds that petitioner has failed to establish deficient performance on the part of trial counsel or the resulting prejudice which must be shown.
Judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall prepare a judgment file and file it with the clerk within thirty days of the date of this decision.