Opinion
CV134005576S
11-27-2018
JEREMY D. #375682 v. WARDEN
UNPUBLISHED OPINION
OPINION
Bhatt, J.
The petitioner, Jeremy D., initiated this petition for a writ of habeas corpus, claiming that his trial counsel provided him ineffective legal representation. The petitioner seeks an order from the court vacating his conviction and sentence, and returning the matter to the criminal trial docket for further proceedings. The court heard evidence on August 6, 2018. Having considered the credible evidence and the arguments of the parties, the court denies the petition.
I
PROCEDURAL HISTORY
The petitioner was arrested and charged with one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(B)(2), one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(A), one count of risk of injury in violation of General Statutes § 53-21(a)(2) and one count of risk of injury in violation of General Statutes § 53-21(a)(1). The claims arose from allegations that the petitioner sexually assaulted the complainant, his minor daughter, during an overnight visit at the petitioner’s residence. The petitioner was represented at all relevant times by Attorney Howard Lawrence.
The petitioner elected to have a court trial. On March 23, 2012, the trial court found the petitioner guilty of sexual assault in the fourth degree and both risk of injury charges. On June 1, 2012, the trial court sentenced the petitioner to a total effective sentence of fifteen years of imprisonment, execution suspended after five years, with fifteen years of probation. The petitioner’s convictions were affirmed on direct appeal. State v. Jeremy D., 149 Conn.App. 583, 90 A.3d 979, cert. denied, 312 Conn. 913, 93 A.3d 596 (2014).
The petitioner initiated the present habeas petition on July 17, 2013. In his second amended petition, filed on February 27, 2017, the petitioner claims that his trial counsel, Attorney Lawrence, was ineffective in failing to: (1) properly represent the petitioner in plea negotiations by explaining and discussing the state’s evidence, the relevant case law and the alternatives to an admission with the petitioner; (2) take into consideration the petitioner’s cognitive limitations when conducting plea negotiations and explaining the plea process to the petitioner so that he could make a knowing, intelligent and voluntary decision in deciding to accept a plea offer or take his case to trial; (3) properly object to the state’s attorney’s examination and cross-examination of witnesses; (4) properly cross-examine the state’s witnesses; (5) present favorable testimony from the petitioner’s family members and friends; and (6) present a proper closing argument by emphasizing testimony inconsistencies and more favorable evidence. The respondent filed a return on May 22, 2018, leaving the petitioner to his proof.
The amended petition also set forth ineffective assistance of counsel claims alleging that trial counsel was ineffective in failing to utilize an investigator and failing to obtain and utilize a forensic evaluator. Both claims were withdrawn at trial.
A trial was held on August 6, 2018. The petitioner called Jason Germain, the state’s attorney, William Lamont, the petitioner’s stepfather, Attorney Kenneth Simon, and himself as witnesses. Both parties presented exhibits to the court, including relevant underlying trial transcripts, the petitioner’s arrest warrant and the mittimus. Facts will be set forth as needed in the discussion below.
II
DISCUSSION
"A criminal defendant’s right to the effective assistance of counsel ... is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution ... To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that "(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.
"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.’" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. "It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel’s acts or omissions were so serious that counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel’s performance, the habeas court is required to "indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ..." Strickland v. Washington, supra, 466 U.S. 689. Consequently, to establish deficient performance, the petitioner must show that, considering all of the circumstances, "counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms." Skakel v. Commissioner of Correction, 329 Conn. 1, 31, 188 A.3d 1 (2018). "Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Id.
Under the second prong of the test, the prejudice prong, the petitioner must show that "counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). Ultimately, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.
A
Ineffective Assistance in the Plea Bargaining Context
The petitioner first alleges that Attorney Lawrence was ineffective in failing to properly represent the petitioner in plea negotiations, and failing to take into consideration the petitioner’s cognitive limitations when conducting plea negotiations and explaining the plea process. The petitioner failed to sustain his burden of demonstrating either deficient performance or prejudice with respect to these claims.
"The defendant’s right to effective representation applies to all critical stages of a criminal prosecution, which extends to any plea negotiations ... [T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the [s]ixth [a]mendment right to effective assistance of counsel." (Citations omitted; internal quotation marks omitted.) Helmedach v. Commissioner of Correction, 329 Conn. 726, 733-34, 189 A.3d 1173 (2018). "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." (Citation omitted; internal quotation marks omitted.) Mahon v. Commissioner of Correction, 157 Conn.App. 246, 253, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015).
"To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." (Internal quotation marks omitted.) Id. "Where ... a petitioner rejects a plea offer, he must establish that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed." (Internal quotation marks omitted.) Barlow v. Commissioner of Correction, 150 Conn.App. 781, 794, 93 A.3d 165 (2014).
At the habeas trial, the petitioner testified that he had approximately five meetings with Attorney Lawrence, and that they discussed the maximum exposure the petitioner faced and the state’s evidence against him, including the forensic interview video. The petitioner indicated that he watched the forensic interview video prior to trial. The petitioner also testified that he had discussions with Attorney Lawrence on trial strategy issues, including whether to elect a jury trial or a bench trial, whether the petitioner should testify on his own behalf and which additional witnesses would be called to testify at trial.
The petitioner testified that he recalled two plea offers that were extended in his case, the first of which called for a sentence of thirty days’ incarceration followed by five years’ probation and the second of which required fifteen days’ incarceration followed by five years’ probation. He rejected both because he would not plead guilty to a crime he did not commit. Attorney Germain, the prosecutor in the underlying criminal trial, testified at the habeas trial that a notation in his case file indicated that the state offered the petitioner a plea to a risk of injury to a child charge with ten years of incarceration, suspended after five years, and fifteen years of probation, and that the offer was rejected by the petitioner on January 21, 2011 Petitioner’s Exhibit I. ("P. Ex. ___"). He testified that this was the only offer extended by the state to the petitioner. None of the transcripts provided by the parties reflect any other offers made to the petitioner. Thus, this court cannot find that there were offers extended to the petitioner beyond the one in P. Ex. I.
The petitioner has not presented any evidence in support of his claim that Attorney Lawrence failed to take his cognitive limitations into account during the plea bargaining process.
He has not presented any evidence of how his limitations affected his ability to understand the plea negotiation process or how they rendered his rejection of the offer involuntary or unintelligent. Further, he has not presented any evidence of what Attorney Lawrence should have done or how that would have altered his decision.
Moreover, the petitioner failed to prove that he was prejudiced by Attorney Lawrence’s alleged failures. The petitioner maintained his innocence and testified that he rejected the plea offers because he would not plead to a crime that he did not commit. Therefore, the petitioner has not shown that a reasonable probability exists that he would have accepted a plea offer and it would have been presented to the court.
The petitioner also testified that he was unaware of the possibility of an Alford plea or that the charges could be reduced. Attorney Germain did not recall whether the parties had discussed the possibility of the petitioner entering an Alford plea, but testified that he is unsure of whether he would have objected to it. Nevertheless, to prevail on this claim, the petitioner has to show that he would have wanted to and been able to plead guilty to these charges pursuant to the Alford doctrine and that the trial court would have accepted that plea and imposed a sentence that is more favorable. This he has not done. There is no evidence that an offer to plead guilty pursuant to the Alford doctrine was available to the petitioner, or that he would have accepted the offer because any such plea would still involve pleading guilty to sexual assault charges, or that the trial court would have accepted an Alford plea to these charges.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
In light of petitioner’s own testimony that he had several meetings with Attorney Lawrence, discussed important aspects of the case with him including the maximum exposure that he faced, the available evidence against him and the offer that was extended to him, in conjunction with the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, the court finds that the petitioner has failed to demonstrate that Attorney Lawrence’s performance in discussing the plea negotiations with the petitioner was deficient. Additionally, the petitioner was canvassed on record by the trial court and there was no indication that he did not understand the nature of the proceedings. Finally, the petitioner has adamantly maintained throughout that he did not commit these crimes and would not have pled guilty to any charges that involved sexual offenses. He has not met his burden of proving prejudice. Therefore, these claims are denied.
B
Failures During the State’s Case-In-Chief
The petitioner next alleges that Attorney Lawrence was ineffective in failing to properly object to the state’s attorney’s examination and cross examination of witnesses, and failing to properly cross examine the state’s witnesses. Specifically, the petitioner claims that Attorney Lawrence failed to object to certain testimony by the state’s forensic expert and the complainant’s mother, failed to cross examine the complainant’s mother and grandmother with the complainant’s statement or testimony and failed to cross examine the complainant as to whether someone other than the petitioner inappropriately touched her. The petitioner failed to sustain his burden of demonstrating either deficient performance or prejudice with respect to these claims.
"[C]ross examination is a sharp two-edged sword and more criminal cases are won by not cross examining adverse witnesses, or by a very selective and limited cross examination of such witnesses, than are ever won by demolishing a witness on cross examination ... The decision whether to cross examine a witness is peculiarly one for defense counsel and his judgment should be entitled to great respect by the court." (Internal quotation marks omitted.) State v. Clark, 170 Conn. 273, 287-88, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976).
In other words," ‘[a]n attorney’s line of questioning of a witness is a tactical decision. [As such, this] court will not, in hindsight, second-guess counsel’s trial strategy.’ ... Antonio A. v. Commissioner of Correction, [ 148 Conn.App. 825, 832, 87 A.3d 600]; see also Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 769-70, 953 A.2d 685 (after reviewing record from both criminal and habeas proceedings, Appellate Court agreed that examination of witnesses was exercise of sound trial strategy that would not be second-guessed), cert. denied, 289 Conn. 950, 961 A.2d 417 (2008)." Hilton v. Commissioner of Correction, 161 Conn.App. 58, 71, 127 A.3d 1011 (2015). "The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." (Citation omitted; internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010). "[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency." (Internal quotation marks omitted.) Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985).
The court reviewed the relevant testimony and evidence presented by the petitioner and finds that the petitioner failed to carry his burden of rebutting the strong presumption that Attorney Lawrence’s examination and cross examination of witnesses fell within the wide range of reasonable professional assistance. Attorney Lawrence did not testify in the habeas trial, nor was any other evidence presented that directly addressed Attorney Lawrence’s tactical reasons for questioning the witnesses in the manner that he did.
A review of the transcripts of the underlying criminal trial reveals that Attorney Lawrence repeatedly attacked the state’s case and exposed inconsistencies in the evidence. The trial court heard that the complainant denied that the petitioner had engaged in inappropriate behavior and had initially failed to report that the petitioner touched her when examined by family members; that the redness and bruising on the complainant was inconsistent with the timeline put forth in the allegations and that it was possible the bruising occurred when the complainant was not in the care of the petitioner. Attorney Lawrence also cross examined the various medical experts presented by the state to elicit testimony that there was no medical evidence of abuse and that the witnesses could not tell the court whether the complainant was actually sexually or physically abused. In light of the deference afforded to Attorney Lawrence’s trial strategy decisions, this court finds that the petitioner failed to prove that his performance was deficient.
Moreover, the court determines that the petitioner fails to create a reasonable likelihood that the outcome would have been different. "Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). Thus, the petitioner has not proven the prejudice prong of the Strickland analysis. As a result, the petitioner has failed to prove either deficient performance or prejudice, and these claims must be denied.
C
Failure to Present Favorable Evidence
The petitioner also alleges that Attorney Lawrence was ineffective in failing to present favorable testimony from the petitioner’s family members and friends. The petitioner failed to sustain his burden of demonstrating either deficient performance or prejudice with respect to these claims.
"[T]he presentation of testimonial evidence is a matter of trial strategy." (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 149 Conn.App. 681, 701, 89 A.3d 426, cert. granted on other grounds, 313 Conn. 901, 96 A.3d 558 (2014). "Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney ... without adequate explanation ... failed to call the witness at trial ... Furthermore, [t]he 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." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 681, 51 A.3d 948 (2012). "Further, we generally have upheld an attorney’s choice to call certain witnesses instead of others." Spearman v. Commissioner of Correction, 164 Conn.App. 530, 542, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).
William Lamont, the petitioner’s stepfather, testified at the habeas trial that he has known the petitioner since 2004, and that the petitioner was an attentive father. Lamont also testified that he did not personally observe the allegations made against the petitioner by the complainant, but acknowledged that he was not in their presence at all times. The petitioner testified that Attorney Lawrence informed him that he wished to question the petitioner’s neighbor, the petitioner’s brother and Lamont, but that he only called the petitioner’s neighbor to testify at the trial. The petitioner indicated that his neighbor was also a friend who was frequently in his residence. The petitioner further testified that the judge would not allow Attorney Lawrence to call all of the witnesses due to the number of state’s witnesses testifying.
The court finds that the petitioner failed to demonstrate that Attorney Lawrence’s failure to call Lamont to present favorable testimony at the petitioner’s trial constituted deficient performance. The record reveals that Attorney Lawrence did call Kevin Banks as a witness, the petitioner’s neighbor and friend, who testified that he spent a lot of time in the petitioner’s residence and that the petitioner was a wonderful person and a great father. Since Attorney Lawrence did not testify at the habeas trial, this court has no evidence before it from which to conclude that his failure to call Lamont as a witness was not a sound tactical decision, but rather deficient performance. Furthermore, the court does not find that Lamont’s testimony would have provided additional information that would have created a reasonable likelihood that the outcome of the petitioner’s criminal trial would have been different.
This court notes that despite the petitioner’s contention, Attorney Lawrence presented favorable evidence to the court. Through the testimony of a defense witness, he elicited evidence that a few weeks prior to the start of the criminal trial, the complainant had stated, during a meeting with a guardian ad litem, the victim’s advocate and the state’s attorney, that the petitioner did not touch her. See P. Ex. 14. Finally, the petitioner, through Attorney Lawrence, was able to present his theory of defense at the trial. A review of the transcripts makes clear that the trial court had ample testimony before it that the petitioner denied the allegations and was a loving, caring father to the complainant. This court cannot conclude that Attorney Lawrence’s performance was deficient or that petitioner was prejudiced by his performance. As a result, this claim must be denied.
D
Failures during Closing Argument
The petitioner further alleges that Attorney Lawrence was ineffective in failing to present a proper closing argument by emphasizing testimony inconsistencies and more favorable evidence. The petitioner also failed to prove this claim.
"[B]ecause closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument ... [W]e must review the comments complained of in the context of the entire trial." (Internal quotation marks omitted.) Langston v. Commissioner of Correction, 104 Conn.App. 210, 224, 931 A.2d 967, cert. denied, 284 Conn. 941, 937 A.2d 697 (2007). "[C]ounsel has wide latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should sharpen and clarify the issues for resolution by the trier of fact ... but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether ... Judicial review of a defense attorney’s summation is therefore highly deferential." David P. v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV-08-4002445-5 (May 19, 2014), aff’d sub nom David P. v. Commissioner of Correction, 167 Conn.App. 455, 143 A.3d 1158, cert. denied, 323 Conn. 921, 150 A.3d 1150 (2016), citing Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003).
The record reveals that Attorney Lawrence did in fact raise a number of inconsistencies during his closing argument. Attorney Lawrence emphasized the complainant’s testimony during which she denied the abuse occurred, and attacked the credibility of the state’s witnesses, including the complainant’s mother and the expert witnesses. Attorney Lawrence further stressed that there was no physical evidence or evidence of abuse. Based on its review of the record, the court finds that Attorney Lawrence’s summation fell within the wide range of reasonable professional assistance. The petitioner has failed to prove that the argument constituted constitutionally ineffective representation in light of the deference entitled to counsel’s closing argument. Furthermore, the criminal trial court, Crawford, J., found the petitioner was not guilty of the two more serious charges. This court finds that the petitioner failed to prove prejudice by demonstrating a reasonable likelihood that the outcome would have been different had Attorney Lawrence raised additional information during his closing argument. As a result, this claim must also be denied.
III
CONCLUSION
Accordingly, the petitioner’s habeas petition is denied.