Opinion
No. CV09-4002838-S
December 2, 2010
MEMORANDUM OF DECISION
The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus filed on January 9, 2009. Subsequently, counsel for the petitioner amended the petition on June 18, 2010. The amended petition asserts a claim of ineffective assistance by trial defense counsel, premised on two purported areas of deficiency. The respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief. The parties appeared before this court on August 6, 2010, for a trial on the merits. The court heard testimony from the petitioner, Cephas McBean, Walter Lawson, Anthony McKenzie, Abraham Hannah, and the petitioner's former trial defense counsel, Attorney John Stawicki. The petitioner presented numerous documents into evidence, primarily consisting of transcripts, but also including the appellate record and the decision from the Appellate Court affirming the judgments of conviction. After reviewing all the evidence presented, the court concludes that the petitioner has failed to meet his burden of proof. Thus, for the reasons stated more fully below, the petition for a writ of habeas corpus is denied.
FINDINGS OF FACT
1. The petitioner was charged in a substitute information with one count of murder, in violation of General Statutes §§ 53a-54a.
2. The petitioner was represented in the underlying criminal matter by Attorney John Stawicki. Although the petitioner was represented in the criminal matter by predecessor counsel, public defender George Flores, the claims in the amended petitioner only pertain to Attorney Stawicki's representation.
3. According to the Appellate Court's decision on the petitioner's, then defendant's, appeal, "[t]he jury reasonably could have found the following facts relating to two separate homicides. The first homicide occurred on the evening of November 15, 2003. Detective Michael Sheldon of the Hartford police department participated in the investigation of this crime, which occurred in the area of Farmington Avenue in Hartford. In this shooting, Smaely Tineo shot and killed Michael Zuckowski, also known as `Psyche.' Zuckowski and Lamar Williams, the victim in the present case, were friends. During his investigation, Sheldon learned that the victim was seen removing a shotgun from the scene at Farmington Avenue and handing it to Jasenia Rodriguez, who had witnessed Tineo shoot Zuckowski. Rodriguez was frightened and, following the victim's instructions, took the shotgun to her home.' The victim retrieved the shotgun later that night. Sheldon also became aware that Tineo `hung out' and `was friends' with a person known as `Clowny,' who was later identified as the defendant. About one hour after the shooting of Zuckowski, a video camera at a Taco Bell restaurant recorded the defendant, who performed at children's parties as a clown, riding his unicycle while wearing his clown attire in a parking lot across the street from the Zuckowski murder scene.
4. "With respect to the second homicide, which led to the prosecution that is the subject of this appeal, the jury reasonably could have found the following facts. During the early morning hours of November 16, 2003, Robert Riley went to 198-200 South Marshall Street in Hartford to purchase drugs from the victim. Riley, the victim and another person were in the hallway conducting their transaction while a fourth individual, Anthony Mickens, went upstairs. The defendant, wearing a mask, entered the building and shot the victim two times. Officer Michael Kot of the Hartford police department arrived on the scene and found the victim on a landing with no pulse and dilated pupils. It was later determined that the victim died as a result of bleeding from his gunshot wounds. The defendant was arrested on December 9, 2003, for this shooting.
5. "The jury found the defendant guilty of murder. The court sentenced the defendant to a total effective term of forty-two years incarceration." State v. Gonzalez, 106 Conn.App. 238, 240-41, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008).
6. Additional facts will be discussed below as necessary to address the petitioner's claims.
DISCUSSION OF LAW
The amended petition claims that the petitioner received ineffective assistance of counsel. "`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). `As enunciated in Strickland v. Washington, supra, 687, this court has stated: 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 . . . 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.) . . ." Bryant v. Commissioner of Correction, 290 Conn. 502, 510, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009), citing and quoting Sastrom v. Mullaney, 286 Conn. 655, 662, 945 A.2d 442 (2008).
"`To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment.' (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525, 903 A.2d 169 (2006). `In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Prevailing norms of practice . . . are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant . . .
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . 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 . . .
"Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.' (Citations omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 688-90." Bryant v. Commissioner of Correction, supra, 290 Conn. 512-13.
The petitioner first alleges that Attorney Stawicki failed to properly investigate and call several witnesses. "`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.) Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 402, 966 A.2d 780 (2009). Nevertheless, a criminal defendant's right to have the assistance of counsel is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
"This includes effective assistance not only at the trial itself but in preparation for the trial. `Adequate preparation for trial often may be a more important element in the effective assistance of counsel to which a defendant is entitled than the forensic skill exhibited in the courtroom. The careful investigation of a case and the thoughtful analysis of the information it yields may disclose evidence of which even the defendant is unaware and may suggest issues and tactics at trial which would otherwise not emerge.' Moore v. United States, 432 F.2d 730, 735 (3d Cir. 1970). Defense counsel should `conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case . . .' See 1 A.B.A. Standards for Criminal Justice (2d Ed. 1980) c. 4, standard 4-4.1, p. 4-53." Gaines v. Commissioner of Correction, 125 Conn.App. 97, 109-10 (2010).
According to the petitioner, Attorney Stawicki did not hire an investigator prior to the jury returning its guilty verdict. An investigation conducted prior to the trial would have resulted in Stawicki being able to call Abraham Hannah, Cephas McBean, Walter Lawson, Jr. and Anthony McKenzie as witnesses to impeach and undermine testimony presented by two state's witnesses, Charles McClairen and Trevor Bennett, who both did not testify at the habeas corpus trial.
At the criminal trial, "Charles McClairen testified that he had a felony narcotics conviction in 2000, and, at the time of his testimony, had pending charges of sale of a controlled substance and robbery in the first degree. McClairen knew the defendant as `Clown.' While incarcerated, McClairen spoke with the [petitioner] in late March or early April 2003, and the [petitioner] opined that he would not be convicted because the state would not be able to use an individual known as `Butter' as a witness against him . . . According to the [petitioner], without Butter's testimony, the state's case would fail. Later that day, after the defendant returned to the lockup from a court proceeding, he appeared dejected because his case was going to proceed. The [petitioner] then told McClairen that he had shot a person on South Marshall Street.
"McClairen sent a letter to the state's attorney's office in an effort to broker a deal with respect to his pending robbery charges. McClairen acknowledged that the state did not make any promise to him with respect to his testimony against the [petitioner]. He did admit that he hoped to get some consideration from the state and that he was not testifying `to be a good citizen,' but rather for the prospect of a reduction in jail time."
"Trevor Bennett testified that he had been convicted of a felony in 1999 and had several pending charges relating to a stolen firearm, as well as a violation of his probation. He also knew the [petitioner] as `Clown.' The [petitioner] and Bennett were cell mates in January 2004. The [petitioner] told Bennett that he and Tineo were `like brothers' and that Tineo was responsible for Zuckowski's death. Bennett also testified that the [petitioner] admitted to having killed the victim." (Footnotes renumbered.) State v. Gonzalez, supra, 106 Conn.App. 242-43.
"Bennett provided this information to the state's attorney's office because he' was `looking for some leniency.' `He further stated that the state did not promise or make any offer in exchange for his testimony against the [petitioner]. He also admitted that the only reason for testifying was a possible reduction in his jail time."
At the habeas corpus trial, the petitioner testified that he was initially represented by public defender George Flores. Flores represented the petitioner for approximately eighteen months until jury selection was underway. During jury selection, it became known that Attorney Flores had a conflict of interest and he was replaced by Attorney Stawicki, a special public defender, who assumed representation and picked a new jury. The petitioner further testified that Attorney Flores had utilized an investigator and that Flores' file was turned over to Attorney Stawicki. According to the petitioner, he told Attorney Stawicki that several inmates were plotting against him by indicating that he had admitted to murdering Lamar Williams. The petitioner further stated that he never met with an investigator working for Stawicki until after the trial resulted in a guilty verdict, after which he met with William Brewer, an investigator assisting Stawicki for purposes of a motion for a new trial argued shortly after the jury trial.
Cephas McBean testified at the habeas corpus trial that he is a convicted felon and presently is an inmate confined at Osborne Correctional Institution. McBean testified that he knew another inmate, Jonathan Ward, who had been a cell mate of McBean's and had tried to get McBean to lie about the petitioner being responsible for murdering Lamar Williams. McBean testified that he informed Ward that he would not get involved in blaming the petitioner for the murder. McBean met with Brewer and provided this information to him. McBean had no direct knowledge of the murder, however.
Several other currently incarcerated inmates presented similar testimony. Walter Lawson, Jr., a convicted felon, testified at the habeas corpus proceeding that Ward wanted him to lie about the petitioner being responsible for Williams' murder. Anthony McKenzie testified that although he never had a conversation with Ward, he overheard a conversation between Ward and Bennett. According to McKenzie, Ward and Bennett were plotting to get leniency from the state through their cooperation. Abraham Hannah, another convicted felon, indicated that he heard Bennett say that the petitioner did not shoot anybody. Lawson, McKenzie and Hannah were not, however, at the murder scene and had no direct knowledge or evidence regarding the murder.
Attorney Stawicki also testified at the habeas corpus trial. According to Attorney Stawicki, he spoke with predecessor counsel, the prosecutor and the investigator after he was appointed to replace public defender Flores. Attorney Stawicki testified that the investigation was complete at the time he became involved in the case, when Flores was already selecting a jury, and Stawicki began jury selection anew after assuming representation. Attorney Stawicki also testified that the state offered the petitioner a five-year sentence in exchange for his guilty plea. Stawicki further testified that he instructed the petitioner to not speak with anyone about the case. According to Attorney Stawicki, the petitioner told him of the conspiracy to frame the petitioner. Attorney Stawicki was concerned about getting the jury to believe that Ward, who was a friend of the decedent, was attempting to lay blame for the crime on someone who did not commit the crime instead of on the actual perpetrator. On cross-examination, Attorney Stawicki testified that although the petitioner told him of an inmate conspiracy during the trial, he would not have called McBean, Lawson, McKenzie and Hannah to testify as defense witnesses during the criminal trial.
After the trial, Lawson sent a letter to Attorney Stawicki about Ward's plot to frame the petitioner. Private investigator Brewer, who was hired by Attorney Stawicki, conducted an investigation and produced a report, which was entered into evidence as a full exhibit in the habeas corpus proceeding. According to this report, Attorney Stawicki wanted Brewer to "interview witnesses and try to determine if McClairen and Bennett gave false testimony." Petitioner's Exhibit 2, p. 1. Attorney Stawicki used the information obtained through Brewer's investigation to pursue a motion for a new trial premised on newly discovered evidence, which was denied by the trial court. On direct appeal, the petitioner challenged the trial court's denial of the motion for a new trial. The Appellate Court concluded "that the trial court lacked the authority to consider the [petitioner's] motion for a new trial on the basis of newly discovered evidence." State v. Gonzalez, supra, 106 Conn.App. 260.
Petitioner's Exhibit 2. Brewer's report summarizes the investigation conducted between July 20 and August 5, 2005. The report very early on notes that the petitioner was convicted in May 2005.
The Appellate Court summarized the following additional facts in addressing the claim that the trial court erred when it denied the petitioner's motion for a new trial. "Following the jury's verdict, the [petitioner] filed a motion for a new trial on May 25, 2005. He raised three grounds in this motion: first, the evidence of Zuckowski's murder by Tineo `was entirely prejudicial with no probative value'; second, the state's questions suggesting that Nicola Campbell, the defendant's girlfriend, was an alibi witness and then undermining her testimony led to the jury's belief that the defendant created a false alibi, thereby causing extreme prejudice; and third, Riley's testimony that he was approached nearly one month after the shooting by an individual who identified himself as `Clown' constituted prejudicial hearsay.
"On July 13, 2005, the court held a hearing on the [petitioner's] motion. At that hearing, the [petitioner] orally amended his motion for a new trial and sought relief on the basis of newly discovered evidence. This new information consisted of a claim of a jailhouse conspiracy to `frame' the defendant for the victim's murder. The [petitioner] believed that the leader of this conspiracy was an inmate named Jonathan Ward, and included Cefus McBean and McClairen, one of the jail-house informants who had testified against the [petitioner]. The prosecutor argued that the [petitioner] was aware of this information prior to the start of the trial, and, therefore, it did not constitute newly discovered evidence . . .
"On August 8, 2005, the court noted that the parties agreed that the motion for a new trial could be amended orally to include a claim of newly discovered evidence. Specifically, the state indicated that it had no objection . . . The court then proceeded to hear argument on the [petitioner's] motion for a judgment of acquittal and the motion for a new trial. Defense counsel stated that his investigator learned that Ward actively had sought out individuals to testify against the [petitioner] as a result of some personal animosity. The state responded that this information was known to the [petitioner], who told both his prior and current counsel. The court then denied the [petitioner's] motion for a new trial. The court stated: `To grant a new trial on something that certain inmates have indicated that they heard when they may or may not have been in the presence of others and that has not been confirmed as the comments indicated, at this point I think would be uncalled for." (Footnote omitted.) Id., 258-59.
Given all of the foregoing, the question presented to this court is whether Attorney Stawicki rendered deficient performance by failing to call McBean, Lawson, McKenzie and Hannah as defense witnesses to undermine the testimony presented by McClairen and Bennett. Even if it was deficient performance, the petitioner must additionally show that such deficient performance was prejudicial. This court's careful review of all documentary evidence and the testimony presented at the habeas corpus proceeding leads it to the conclusion that the petitioner has failed to meet his evidentiary burden of proof. At the time of trial, Attorney Stawicki's decision not to call these inmate witnesses was reasonable trial strategy. Subsequent to the jury verdict, Attorney Stawicki attempted to convince Judge Mulcahy, the trial judge, that these inmate witnesses and their assertions of an inmate conspiracy against the petitioner warranted a new trial. After hearing the four inmate witness's testimony in the habeas corpus trial, this court also finds that there is insufficient basis to grant the petitioner a new trial premised on Attorney Stawicki's purported failure to investigate the inmate conspiracy and call the four inmate witnesses.
The second alleged area of deficient performance by Attorney Stawicki is that he failed to properly object to Robert Riley's hearsay testimony that implicated an individual known as "Clown" as the individual who shot Lamar Williams. There was no evidence presented in support of this claim aside from the criminal trial transcripts. The petitioner asserts that Riley's observations and subsequent testimony are not reliable. Further, that Riley's testimony falls under none of the hearsay exceptions.
"[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . .' (Citation omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 801, 837 A.2d 849, cert denied, 268 Conn. 907, 845 A.2d 413, cert denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). An `[e]xperienced [litigator may] utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury.' (Internal quotation marks omitted.) State v. Davis, 76 Conn.App. 653, 665, 820 A.2d 1122 (2003)." Servello v. Commissioner of Correction, 95 Conn.App. 753, 761-62, 899 A.2d 636, cert. denied, 280 Conn. 904, 907 A.2d 91 (2006).
Here, there is no evidence to support the claim that Attorney Stawicki was not employing reasonable trial strategy and not exercising his professional judgment by not raising a hearsay objection. The habeas corpus proceeding shed no light upon his strategy. Lastly, although the petitioner argues that Riley's testimony falls under none of the hearsay exceptions, that does not mean that Riley's testimony would not be admitted under the residual exception embodied in § 8-9 of the Code of Evidence. The petitioner has failed to prove that Attorney Stawicki rendered ineffective assistance of counsel for failure to raise a hearsay objection to Riley's testimony.
Based on the foregoing, judgment shall enter denying the claims asserted in the amended petition for a writ of habeas corpus. Petitioner's counsel shall prepare and file the judgment file with thirty days.