Opinion
No. CV 99-0433207 S
October 22, 2004
MEMORANDUM OF DECISION
The petitioner, by counsel, has filed a third amended petition for a writ of habeas corpus. The petition alleges that he is in the custody of the Commissioner of Correction following convictions of felony murder, attempted robbery, and assault. The petition further alleges that the petitioner's confinement is illegal in that he was deprived of effective assistance of counsel in violation of his state and federal constitutional rights at both his criminal trial and his first habeas trial, and in that he is actually innocent of the crimes for which he was convicted.
The petitioner was charged in the Judicial District of Fairfield with one count of felony murder in violation of General Statutes § 53a-54c, one count of attempted robbery first degree in violation of § 53a-49 and 53a-134(a)(1), and one count of assault first degree in violation of section 53a-59(a)(1). After a jury trial, he was found guilty on July 28, 1989 of all charges, and on September 8, 1989 he was sentenced by the court (Ford, J.) to the custody of the respondent for a total effective term of fifty years, which sentence he is now serving. The convictions were upheld on direct appeal. State v. Hopkins, 222 Conn. 117 (1992). The petitioner was represented at trial and sentencing by Attorney Frank Riccio.
In 1994, the petitioner filed a petition for a writ of habeas corpus alleging that Mr. Riccio was ineffective in that he did not prepare adequately for trial in various respects, and in that he did not preserve timely objections to the trial court's supplemental charge. After a full evidentiary hearing before the court (Sullivan, J.) the petition was denied on June 25, 1996. The judgment was affirmed by the Appellate Court. Anthony Hopkins v. Commissioner of Correction, 47 Conn.App. 910 (1997). The petitioner was represented by Attorney Michael Moscowitz on that petition. The petitioner then filed a petition for a writ of habeas corpus in the United States District Court for the District of Connecticut. The petition was denied by the trial court (Alfred V. Covello, Chief Judge), the denial was affirmed by the United States Court of Appeals for the Second Circuit on September 6, 2001, and a petition for a writ of certiorari was denied by the United States Supreme Court on April 15, 2002.
In this case the original petition was filed on December 6, 1999, and the court heard the third amended petition on September 30, October 21 and October 22, 2003. The petition made several claims with respect to Mr. Riccio's alleged ineffectiveness, most of which were not pursued in the petitioner's brief and are deemed to be abandoned. The only claims related to ineffectiveness of trial counsel which have been briefed are that Mr. Riccio "failed to properly investigate the alibi defense, locate and interview additional witnesses who could have corroborated the one alibi witness that testified," and that "Mr. Riccio did not interview Raymond Jeffries, who was the co-defendant, or Mr. Jeffries' alibi witnesses." As far as first habeas counsel Moscowitz is concerned, the brief alleges that he was "ineffective because he failed to fully investigate and follow-up on leads to alibi and exculpatory witnesses that were available to testify in 1989 at the criminal trial and in 1996 at the first habeas trial."
The petitioner is entitled to receive effective assistance of both trial counsel and habeas counsel.
The petitioner's right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. "The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chace v. Bronson, 9 Conn.App. 674, 678, 564 A.2d 303 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263, 573 A.2d 330 (1990). "In order to prevail in a habeas corpus challenge, `the petitioner "must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct 468, 7 L.Ed.2d 417, reh. Denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962)." D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984).' Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989)." Sherbo v. Manson, 21 Conn.App. 172, 180-81, 572 A.2d 378 (1990). "In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal." Magnotti v. Meachum, 22 Conn.App. 669, 674, 579 A.2d 553 (1990); see Biggs v. Warden, 26 Conn.App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). "`A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.' Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989)." Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct. 512, 108 L.Ed.2d 514 (1989).
"With regard to the performance component of this inquiry, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Aillon v. Meachum, supra, 211 Conn. 357. "The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980).' "What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation." Peoples v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981).' Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985)." Giannotti v. Warden, 26 Conn.App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); see also Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991). CT Page 16202
"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.' . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; see also Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Williams v. Warden, 217 Conn. 419, 586 A.2d 582 (1991).
Robert Jeffery v. Commissioner of Correction, 36 Conn.App. 216, 218-20.
The Supreme Court opinion affirming the convictions found that the jury could reasonably have found the following facts.
In the early morning hours of August 27, 1988, Dorothy Hopkins, a prostitute and drug addict, was soliciting on the corner of Barnum Avenue and Kossoth Street in Bridgeport. Her husband and pimp, Earl Hopkins, was nearby. Keith Kochiss approached Dorothy Hopkins in his car, which she entered. They proceeded to drive around the area. When they agreed upon a price for her services, Kochiss parked his car on Maple Street, closed the window, locked the car and unzipped his pants. As she was about to perform a sexual act, Dorothy Hopkins saw the defendant, who was her brother-in-law, approach the car with another individual. Both of the men who approached the car were black. The defendant demanded that Kochiss turn over his money. When Kochiss attempted to reach for the ignition key, the defendant fatally shot him in the head through the closed window. The bullet went through Kochiss' head and entered Dorothy Hopkins' body.
The defendant then put his hand though the shattered window and turned the ignition key. The car lunged forward and crashed into a tree. As Dorothy Hopkins crawled out of the car, Wanda Carter came running by. Dorothy Hopkins asked Carter to summon her husband from the park. When the police arrived at the scene, they found Dorothy Hopkins staggering about the street. The window on the driver's side of Kochiss' automobile was shattered and the interior was covered with blood. Kochiss was slumped over in the driver's seat. After arriving at the hospital, Dorothy Hopkins was briefly interviewed by the police and said only that she had been robbed by two black males. Subsequently, Dorothy Hopkins gave the police a written statement implicating the defendant as the person who had shot Kochiss. She also testified to that effect at the defendant's probable cause hearing.
State v. Hopkins, 222 Conn. 117, 120.
The first claim of ineffectiveness of trial counsel Riccio is that he failed to properly investigate the petitioner's alibi defense in that he did not locate and interview additional alibi witnesses who could have corroborated the one alibi witness who testified. The alibi witness, in the criminal trial, who was put on the stand by Mr. Riccio, was Robert Wesley Johnson, a friend of the petitioner from Bridgeport. In this habeas trial the petitioner introduced Exhibit H, which consists of pages 1066-72 of the criminal trial transcript, and is a portion of the direct testimony of Johnson. The exhibit does not include all of the direct testimony or any of the cross-examination of Johnson. In this partial transcript Johnson testified that he and the petitioner went to New York City at about 6:00 p.m. on the day before the murder, that they first went to the Bronx where they picked up Johnson's friend, Kevin Barzey, that about 9:30 or 10:00 p.m. the three men stopped at the home of Valerie Speller, who was the sister of Johnson's girlfriend, so as to introduce her to the petitioner, that after a few minutes the three men drove to the Latin Quarter club in Manhattan, where they were admitted sometime after 11:00 p.m., that Valerie and her sister Arlene Speller arrived an hour or two later, that the five of them stayed at the club until it was almost light out and that they then went to Valerie's house where they stayed for the weekend. At the habeas trial Riccio testified that he thought Johnson had been a credible witness and that he did not think it was necessary to call any other witnesses with respect to the alibi.
At the habeas trial the petitioner offered the testimony of Arlene Speller, who testified on September 30, 2003. Speller testified that she remembered being with the petitioner, Johnson, and her sister Valerie Speller in New York on August 26 and 27, 1988. She did not mention Mr. Barzey. She testified that she had not talked to or heard from either the petitioner or Johnson since August 27, 1988, and she was unaware that the petitioner had been accused of committing crimes in Bridgeport in the early morning of August 27, 1988. Two or three weeks before her testimony she was contacted by an investigator on behalf of the petitioner who asked her if she remembered Robert Johnson and Anthony Hopkins and that Hopkins was charged with murder. She told the investigator that she couldn't remember who he was talking about. Speller testified that a couple of days later that "it came to her" that the investigator was talking about the petitioner, who she knew as "Ant" and Johnson, who she knew as "Wes." She then called the investigator back. She testified that after fifteen years she could remember the specific dates that the petitioner was in New York because it was near her son's birthday, which was August 22, and because they had had a lot of fun. There was no evidence that Speller had any notes or record concerning the 1988 visit. She was unable to recall what she did on August 26, 1989 or 1990. Her testimony about what they did in New York was inconsistent in various respects with the partial testimony of Johnson at the criminal trial which was offered as Exhibit H. There is no evidence that Speller was available to testify at the time of the criminal trial in 1989. In his brief the petitioner concedes that "it is speculative whether Ms. Speller would have been available to testify in 1988," but notes that she was available in 2003 for the habeas trial without a subpoena.
Riccio was a very experienced criminal defense attorney at the time of the criminal trial in 1989. He had represented the petitioner on at least one previous criminal trial. In order to prove deficient performance by Riccio in not calling additional alibi witnesses, the petitioner must rebut the strong presumption that his decision was sound trial strategy. The only portions of the criminal trial record which were put in evidence in this habeas trial were the aforementioned Exhibit H, which was a portion of Johnson's testimony, Exhibit B, which was a portion of the examination of Lt. Lindquist of the Bridgeport police department concerning police records of gunshots in Bridgeport the night of the crimes, and Exhibit E, which was a portion of the cross-examination by Riccio of Earl Hopkins, a brother of the petitioner, concerning Earl's whereabouts on the night of the crimes. Based on the entire record offered in this habeas trial, the court finds that the petitioner has failed to rebut the presumption that Riccio's decision with respect to calling additional alibi witnesses was sound trial strategy.
In addition to proving deficient performance by Riccio in not calling additional alibi witnesses, which the court has found the petitioner failed to prove, in order to prevail in his habeas corpus action the petitioner must also prove that he was prejudiced by his attorneys performance. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, supra, 687. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 691. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id., 693. Rather, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 694. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id., 695. Fair v. Warden, supra, 408. After considering the entire record offered in this habeas trial, the court finds that the petitioner has failed to prove prejudice with respect to the decision by Riccio not to call additional alibi witnesses.
The second claim of ineffectiveness by Riccio made by the petitioner in his brief is that Riccio did not interview Raymond Jeffries or Jeffries' alibi witnesses. The petitioner and Jeffries had been identified by the assault victim, Dorothy Hopkins, as the two perpetrators of the murder and assault. Jeffries claimed that he was at a party at the tine the crimes were committed and that he had witnesses to support this claim. The trial court did not find probable cause as to Jeffries, and he was then charged with conspiracy to commit robbery first degree and conspiracy to commit assault first degree. He was released on bail and was not tried with the petitioner. He was represented by Attorney William Schippel, who advised Riccio that if Jeffries were called as a witness, he would invoke his fifth amendment privilege. Therefore, Riccio could not call Jeffries as a witness in the criminal trial, and there was no evidence concerning an alibi by Jeffries. Jeffries eventually pleading guilty, under the Alford doctrine, on May 7, 1990 to conspiracy to commit robbery second degree.
The claim that Riccio was deficient in not calling Jeffries or the claimed alibi witnesses for Jeffries is without merit. Riccio was precluded from calling Jeffries as a witness knowing that he would invoke his fifth amendment privilege against self incrimination. State v. Dennison, 220 Conn. 652, 660 (1991). There being no evidence of an alibi being claimed by Jeffries, any evidence in support of that alibi would have been evidence bearing on a collateral issue and inadmissible. In addition to finding that the petitioner has failed to prove deficient performance by Riccio in this regard, the court also finds, based on the entire record, that the petitioner has failed to prove any prejudice as a result of Riccio's performance.
Moscowitz represented the petitioner in the first habeas trial which was heard in 1996. The petition was dismissed by Judge Sullivan and the dismissal was affirmed by the Appellate Court. In the instant petition the petitioner claims that Moscowitz was ineffective because he failed to fully investigate and follow up leads to alibi and exculpatory witnesses that were available to testify in 1989 at the criminal trial and in 1996 at the first habeas trial. It is claimed that Moscowitz's failure in this regard "likely affected the outcome of Petitioner's . . . first habeas trial." The record in this habeas trial included the entire transcript of the 1996 habeas trial.
Moscowitz testified, in connection with his failure to call either of the Speller sisters as additional alibi witnesses and thus demonstrate that Riccio was deficient in not calling them in the criminal trial, that he was unable to locate them in 1996. There was no evidence that either of them were available as witnesses in 1996. The court finds that the petitioner has failed to prove that Moscowitz was deficient in the first habeas trial in not producing additional witnesses to support the petitioner's alibi, and that the petitioner has failed to prove any prejudice arising from Moscowitz's conduct in this regard.
The petitioner also claims that Moscowitz was ineffective in the first habeas trial in not locating and offering witnesses concerning the alleged alibi of Jeffries, and thus prove that Riccio was ineffective in the criminal trial in not calling these witnesses The court has already found that the petitioner has failed to prove that Riccio was ineffective with regard to this claim. The court finds that the petitioner has failed to prove either deficient performance by Moscowitz or any prejudice caused by Moscowitz's performance with respect to this claim.
The final claim made by the petitioner is that he is actually innocent of the crimes of which he was convicted. The standard of proof in a habeas action where the petitioner presents a claim of actual innocence is well established in Connecticut jurisprudence. "[T]he proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997); accord Clarke v. Commissioner of Correction, 249 Conn. 350, 355, 732 A.2d 754 (1999).
The court finds, based on the evidence contained in the very limited portions of the transcript of the original criminal trial which were offered in evidence, and the evidence offered in the habeas trial, that the petitioner has failed to prove by clear and convincing evidence that he is actually innocent of the crimes of which he was convicted, and he has also failed to establish that after considering all of the evidence and the inferences drawn therefrom, that no reasonable fact finder would find the petitioner guilty of the crimes.
For the reasons above stated, the third amended petition is dismissed.
William L. Hadden, Jr. Judge Trial Referee