Opinion
No. CV-01-0451770
December 8, 2008
MEMORANDUM OF DECISION
The petitioner has filed a petition for a writ of habeas corpus, alleging ineffective assistance of counsel against his trial and appellate counsel. In his second amended petition, he claims that his trial attorney rendered ineffective assistance at trial because: (1) counsel failed to adequately prepare petitioner for his testimony based on all the evidence; and (2) counsel failed to adequately cross-examine an investigating detective. A hearing was held on October 8, 2008 and after submission of briefs by the parties, argument was held on December 8, 2008. At the hearing the court heard testimony from the petitioner and his former counsel from trial, Attorney Thomas Conroy. Petitioner also entered nine exhibits, which included the trial and sentencing transcripts, the record on appeal, both parties' briefs to the Appellate Court and the decision of the Appellate Court. It is noted at the outset that the court read the complete trial transcript so that the claims directed at trial counsel were examined in detail.
The parties stipulated that count two, against the appellate counsel, should be granted and the petitioner's appellate right to petition for certification from the decision of the Appellate Court be restored. The court entered judgment in accordance with the stipulation on October 8, 2008, and amended the order on December 8, 2008 to permit the time frames for compliance to begin on December 8, 2008.
The petitioner was convicted after a jury trial of conspiracy to commit burglary in the first degree in violation of C.G.S § 53a-48(a) at 53a-101, conspiracy to commit robbery in the second degree in violation of C.G.S § 53a-48(a) at 53a-135 and aggravated sexual assault in the first degree in violation of C.G.S. § 53a-70a(a)(4). He was sentenced on June 8, 2001 to a total effective sentence of thirty-five years imprisonment.
The petitioner's conviction was upheld; State v. Jackson, 75 Conn.App. 578 (2003).
STANDARD OF REVIEW
The law governing the standard of proof for establishing ineffective assistance of counsel is well-established.
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense. "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." Id. 689.
Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims.
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, 19 Conn.App. 674, 678, 564 A.2d 303 (1989) . . . He must also show "that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial." Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, [ 195 Conn. 636], 640 [1986]; Chace v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). Williams v. Bronson, 21 Conn.App. 260, 263 (1990).
Strategic or tactical choices of counsel are not subject to challenge. Strickland v. Washington, supra, 689.
Finally, our courts have repeatedly stated that "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Henderson v. Commissioner of Correction, CT Page 19460 104 Conn.App. 557, 572 (2007), cert. denied, 285 Conn. 911 (2008). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335 (2002).
The petitioner's claims must be evaluated in light of these standards.
DISCUSSION
The court finds the following facts to be proven by a preponderance of the evidence. The petitioner was arrested by warrant on April 30, 1996. Attorney Conroy was appointed, on October 20, 2000, as a special public defender to represent the petitioner. Prior to Conroy's appointment, petitioner was represented by the public defender for the New Haven judicial district. At the time he represented the petitioner, Attorney Conroy had been licensed to practice law in the state of Connecticut for eighteen years and was engaged in the private practice of law. He was experienced in the practice of criminal law. In 1984, Attorney Conroy tried his first felony "Part A" trial in Bridgeport, and after the hung jury verdict, he started to focus on criminal work. Since the late 1980s Conroy worked as a contract special public defender for the New Haven public defender's office. In his career, Attorney Conroy tried over approximately thirty felony criminal trials.
Prior to the jury's verdict, the defendant had posted bond.
Attorney Conroy continues to be licensed to practice law in Connecticut, and since 2003 has been employed as an attorney with the Public Defender's Office.
Upon his appointment as petitioner's counsel, Attorney Conroy obtained the file from the public defender's office and reviewed the police reports and statements. He met with the petitioner and reviewed the reports with him, as well as discussed the case with him. Petitioner and Attorney Conroy discussed the facts of the case, and the petitioner's version of what occurred on the night of the incident. Attorney Conroy conducted investigation into petitioner's version and through his interviews with petitioner's mother and former wife, sought to corroborate that version. Attorney Conroy's strategy for the defense of the case was based upon the explanation that the petitioner gave to the police after the incident, and which he maintained at trial; namely, that he, too, was a victim of the two masked intruders and not a participant in the crimes.
Conroy was not certain whether the woman was petitioner's wife or ex-wife in 2000.
Prior to the trial, Conroy met with petitioner in preparation for trial. They discussed the advantages and disadvantages of petitioner's testimony at trial, and that if petitioner chose not to testify, Conroy would request a "no adverse inference" jury instruction. They also discussed the testimony of the investigating detective William Piascyk. Attorney Conroy did not recall many specifics of his conversations with petitioner in preparation for trial, but after seven years Conroy did recall that the defense strategy was that, while the facts of the crime were basically undisputed, the defendant's role in it was as he maintained from the beginning — that he was a victim forced to engage in the criminal conduct and not a willing participant in any crime. Conroy discussed with petitioner the fact that the case relied on petitioner's credibility and advised him that, in this case, he needed to testify in his own behalf. The petitioner did testify at trial, and the state did not cross-examine him.
Jury selection for the trial began on March 9, 2001 and evidence began on March 19, 2001. The jury returned a verdict of guilty on March 22, 2001 as to all three counts.
Petitioner's allegations that Attorney Conroy neither adequately prepared him to testify nor cross-examine Det. Piascyk stem from petitioner's claims that he told Attorney Conroy certain information that Conroy failed to use to exonerate him. For instance, petitioner claimed that:
-he told Conroy that the wedding ring he wore on the night he was arrested was not the ring taken from him during the incident but a replacement he bought later;
-he told Conroy that he never told the police that his uncle and cousin were involved in the crime, but only that his uncle was on the telephone;
-he told Conroy that Piascyk told him to say he was smoking embalming fluid at the time of the crime and that the detective told him not to return to the apartment where the crime occurred;
-he told Conroy that Piascyk said that petitioner "would not get away with this like O.J. [Simpson]"; and
-Conroy should have questioned him about his reluctance to participate in the sexual assault.
The problem with petitioner's argument, however, is that some of the information was put before the jury at the trial. The petitioner was questioned by Conroy about the sexual assault and petitioner testified that he was forced to do so at gunpoint by the masked men and that he was afraid because they threatened him. The petitioner told the jury that he did not know the two masked men and that his uncle's name came up in his conversation with the detective only because his uncle had called his apartment the night that the police were there. Further, the petitioner told the jury that the wedding ring he was wearing at the time of his arrest was purchased just a few months prior to his arrest but after the crime.
In fact, the Appellate Court noted this in its recitation of the facts. 75 Conn.App. 578, 583, n. 6.
As to his "failure" to cross examine Piascyk about his warning to petitioner not to return to the crime scene, Conroy testified that he did not find the detective's statement to be inappropriate, in light of the circumstances of the case, wherein two masked men forced their way into an apartment, restrained the individuals therein and directed the petitioner, who was not a resident, to perform sexual acts upon the victim, and he complied. The court finds that Conroy was well within the standards of reasonableness in choosing not to pursue that line of cross-examination. Trial tactics will not be questioned when they fall into the standards of reasonableness.
Attorney Conroy had no recollection of petitioner informing him about Piascyk's suggestion that petitioner claim he was smoking embalming fluid or that petitioner wouldn't "get away with" the crime. Even if he had known of these claims, it would have been well within Conroy's trial strategy not to introduce those statements. This was a case wherein the defendant's credibility was pitted against that of the victims, eyewitnesses and investigators of the crime. Petitioner's strategy at trial was to persuade the jury that he was forced to participate in this crime, despite the fact that the police did not subscribe to that theory. To inject such incredulous claims, in an attempt to impeach Piascyk, could only have hurt petitioner's argument to the jury as it would have detracted from the sound cross-examination regarding the investigation. While petitioner may have liked his trial counsel to have emphasized these arguments, this court will not, in hindsight, second-guess counsel's trial strategy. See Watson v. Commissioner, 111 Conn.App. 160, 172 (2008).
The burden that petitioner must meet is that counsel's performance was deficient and that, had it not been for counsel's ineffectiveness, there is a reasonable probability that the outcome of his trial would have been different. The petitioner cannot meet this high burden. Nothing about attorney Conroy's performance fell below the objective standard of reasonableness. Accordingly, there is no reason for this court to consider where there is a reasonable probability that the outcome would have been different.
CONCLUSION
The petition for a writ of habeas corpus on count one of the second amended petition is DENIED. The petition on count two is GRANTED.
See footnote 1, infra.