Opinion
No. CV 05 4000419
March 13, 2008
Memorandum of Decision
The petitioner was tried on and convicted of first degree robbery and first degree assault in 2000. He received a sentence of 20 years. The Appellate Court affirmed. State v. Iannazzi, 68 Conn.App. 456, 791 A.2d 677 (2002). The petitioner then filed a habeas corpus petition, which the habeas court, Rittenband, J.T.R., denied in 2003. The Appellate Court summarily affirmed. Iannazzi v. Commissioner of Correction, 86 Conn.App. 901, 859 A.2d 980 (2004). The petitioner has now filed a second habeas petition.
I
In count one of the new petition, the petitioner alleges that the failure of the trial court, D'Addabbo, J., to canvass the petitioner regarding his decision not to testify in his own defense violated his constitutional rights. The respondent, in its return, raises the defense that the petitioner has procedurally defaulted by failing to raise this issue in his direct appeal. The petitioner failed to file the requisite reply specifying the reasons for his default. See Practice Book § 23-31[c].
In the interests of finality, the court will overlook the petitioner's pleading deficiency. Counts two, three, and four of the petition respectively allege that trial, appellate, and habeas counsel were all ineffective in failing to raise this issue, an allegation which, if proven, would constitute cause for failing to raise it earlier. See Carpenter v. Commissioner of Correction, 274 Conn. 834, 844, 878 A.2d 1088 (2005). The inquiry thus evolves into whether there was deficient performance by counsel on this issue and whether the petitioner was prejudiced thereby. See id., 845. See also Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006) (requiring proof of both deficient performance and prejudice to establish ineffective assistance of counsel); Henderson v. Commissioner of Correction, 104 Conn.App. 557, CT Page 4183 569, 935 A.2d 162 (2007) (requiring proof of both cause and prejudice to overcome procedural default).
The petitioner inadvertently labeled both the count alleging ineffective assistance of appellate counsel and the count for habeas counsel as count three. The court will refer to the count concerning habeas counsel as count four.
In State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990), our Supreme Court stated: "The defendant argues that, as an incident to [a defendant's right to testify], the trial judge has an affirmative duty to canvass the defendant to ensure that his waiver of his right to testify is knowing, voluntary and intelligent. We do not believe that federal law contains any such requirement in a case such as this where the defendant has not alleged that he wanted to testify or that he did not know that he could testify . . . The accused must act affirmatively. While the due process clause of the Fifth Amendment may be understood to grant the accused a right to testify, the `if' and `when' of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney." (Internal citations and quotation marks omitted.) Id., 404-05.
In this case, the petitioner did not take any meaningful affirmative actions at his trial to suggest an invocation of the right to testify. See State v. Hobson, 68 Conn.App. 40, 45-46, 789 A.2d 557 (2002) (defendant's statement "May I say something, Your Honor" did not evince intent to testify or serve to notify court of his alleged intention). Further, the trial judge did make at least a brief inquiry of the petitioner on this issue. At the conclusion of the state's case in the criminal trial, defense counsel Robert Berke represented that the defense would rest without presenting any evidence. After further discussion, the trial judge inquired directly of the petitioner whether he understood what was going on and whether he had time to discuss this matter with his attorney. The petitioner answered in the affirmative to both questions. (Exhibit 7, pp. 84-86.)
The petitioner did file a motion in limine to exclude his prior convictions in the event that he did testify. There is no evidence in the criminal trial record that this motion represented a desire to testify rather than an inquiry into the circumstances that would govern if the petitioner did testify. In any case, after the court ruled on the motion, there was no further indication that the petitioner desired to testify. (Exhibit 4, pp. 13-23; Exhibit 7, pp. 64-70.)
In view of these considerations, the petitioner cannot prove deficient performance by prior counsel. Given that there was at least a brief judicial inquiry of the petitioner concerning his decision not to present a defense, it was not unreasonable for trial counsel to refrain from asking for further canvassing. Further, because the petitioner did not take any affirmative actions at trial to indicate a desire to testify, there was no merit, under Paradise, to any claim of error on appeal or collateral review based on failure to canvass. At a minimum, appellate or habeas counsel could reasonably have concluded that to raise a weak claim of failure to canvass would detract from their stronger claims. See Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). Thus, the petitioner has not overcome the presumption that there were valid strategic reasons for counsel not to raise this issue. See CT Page 4184 Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).
The petitioner has also failed to prove prejudice. The petitioner did not explain in the current proceedings what he would have stated had he testified in his criminal trial. On the other hand, the record does establish that the petitioner had numerous prior criminal convictions and that the trial judge would have allowed at least some of them in for impeachment purposes had the petitioner testified. (Exhibit 4, pp. 13-23; Exhibit 7, pp. 64-70.) Given this record, the petitioner has not proven that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458. Accordingly, the petitioner has not proven either prong of an ineffective assistance of counsel claim. Therefore, with respect to the claim that the trial judge failed to canvass the petitioner concerning his decision not to testify at the criminal trial, the petitioner has not proven both cause and prejudice for the procedural default in count one and has not proven ineffective assistance of counsel in counts two, three, and four.
II
Count one also alleges that the trial court violated the petitioner's constitutional rights by admitting into evidence the victim's in-court identification of the petitioner and his out-of-court identification from a photo array. The respondent alleges procedural default and, based on the direct appeal, res judicata. See State v. Iannazzi, supra, 68 Conn.App. 459-63. The petitioner contests the procedural defenses only with regard to his subsidiary claim that the trial judge failed to provide the jurors with an instruction warning them about the risks of misidentification that arise when the police fail to advise the witness that the perpetrator's photo may or may not be in the array. Because this more limited claim is based solely on State v. Ledbetter, 275 Conn. 534, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082 (2006), which our Supreme Court decided after the trial, appeal, and first habeas petition in this case, the petitioner has established cause for his procedural default.
The respondent also filed a separate motion to dismiss count two of the petition, which alleged ineffective assistance of trial counsel on the identification issue. The premise of the motion was that the petitioner had raised the ground of ineffective assistance of trial counsel in his first habeas petition. The court granted the motion on February 27, 2008.
The reason that the petitioner has cause — the fact that Ledbetter was not decided until 2005 — nonetheless leads to the conclusion that he cannot establish prejudice. Ledbetter held, based on the Court's supervisory authority that, unless there is no significant risk of misidentification, trial courts must provide an instruction to the jury warning the jury of the risk of misidentification in those cases where: "(1) the state has offered eyewitness identification evidence; (2) that evidence resulted from an identification procedure; and (3) the administrator of that procedure failed to instruct the witness that the perpetrator may or may not be present in the procedure." Id., 579. Although there is no dispute the trial judge in the present case did not provide the instructional warning, it is also clear that the trial judge had no obligation to do so. The Ledbetter Court expressly stated that the specific jury instruction it had adopted was "for use by our trial courts in such cases in the future . . ." Id. The Court did not reverse the conviction in the case before it despite the apparent absence of such an instruction in the underlying trial. Id., 580. It is thus apparent that the Ledbetter ruling, by its own terms, was prospective only. Plainly, it does not apply to cases, such as the present one, in which the conviction was final long before the Court's ruling. See Marone v. Waterbury, 244 Conn. 1, 10-11, 707 A.2d 725 (1998) ("Although it is true that judgments that are not by their terms limited to prospective application are presumed to apply retroactively . . . this general rule applies to cases that are pending and not to cases that have resulted in final judgments"). The petitioner suffered no cognizable prejudice from the trial court's failure to provide a Ledbetter instruction in his case because there was no legal obligation to provide the instruction. Accordingly, because the petitioner has not proven both cause and prejudice, the petitioner's identification claim is not properly before the court.
III
The petitioner's third claim is that counsel on his direct appeal to the Appellate Court, attorney Tracey M. Lane, was ineffective because she failed to petition for certification to our Supreme Court. The court rejects this claim because there were no issues in the appeal worthy of certification. See Gipson v. Commissioner of Correction, 67 Conn.App. 428, 432, 787 A.2d 560 (2001). Under our rules: "Certification by the supreme court on petition by a party is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefor . . ." Practice Book § 84-2. The issues in the Appellate Court were the admissibility of the identification, the sufficiency of the evidence, and the propriety of a comment made by the prosecutor during closing argument. See State v. Iannazzi, supra, 68 Conn.App. 459-70. These issues were routine and fact-bound, the decision of the court was not in conflict with any other decision, and the court was unanimous. There was thus no basis for certification. See note 3 supra. Accordingly, appellate counsel was not ineffective in failing to file a petition for certification.
In full, § 84-2 provides: "Certification by the supreme court on petition by a party is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of the reasons which will be considered:
(1) Where the appellate court has decided a question of substance not theretofore determined by the supreme court or has decided it in a way probably not in accord with applicable decisions of the supreme court.
(2) Where the decision under review is in conflict with other decisions of the appellate court.
(3) Where the appellate court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by any other court, as to call for an exercise of the supreme court's supervision.
(4) Where a question of great public importance is involved.
(5) Where the judges of the appellate panel are divided in their decision or, though concurring in the result, are unable to agree upon a common ground of decision."
IV
The petitioner's final claim is that counsel in his first habeas petition, attorney Trudy Condio, was ineffective because she allegedly allowed a key witness for the respondent, State's Attorney John Connelly, to engage in an ex parte discussion with Judge Rittenband prior to testifying. The petitioner admitted in testimony that he did not know what Connelly and Judge Rittenband talked about. We presume that public officials have acted legally and properly. See Fonfara v. Reapportionment Committee, 222 Conn. 166, 177, 610 A.2d 153 (1992). The petitioner presents no evidence to overcome the presumption here. Although prosecutors and judges should always strive to avoid even the appearance of impropriety, there is simply no basis to conclude that Connelly and Judge Rittenband discussed anything related to the case on trial. Further, there is no evidence that Condio knew about this discussion or that in any way she was responsible for its occurrence. Thus, the petitioner has failed to prove that the performance of habeas counsel was deficient or that any deficient performance resulted in prejudice to his habeas case.
V
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.