Opinion
No. 566940
October 29, 2004
MEMORANDUM OF DECISION
By his amended petition of December 11, 2003, petitioner seeks a writ of habeas corpus. The petition spells out petitioner's claims in five counts. The first count alleges that petitioner was denied equal protection of the law because of the jury panel procedure followed at his trial. The second count alleges ineffective assistance of counsel because of his attorney's failure to raise the federal equal protection challenge to the jury panel selection procedure. The third count alleges that petitioner was denied equal protection of the law as guaranteed by the Constitution of the State of Connecticut. The fourth count alleges ineffective assistance of counsel and that his attorney failed to raise an equal protection challenge to the jury selection process based upon the Connecticut Constitution. The fifth count alleges ineffective assistance of counsel in that his attorney failed to investigate and pursue evidence and witnesses revealed to the attorney before and during the trial.
Respondent has either denied or claimed insufficient information to form a belief to the essential allegations of all counts of the complaint. Respondent has also interposed a defense of procedural default and laches to all counts.
Habeas corpus is a civil proceeding and not an equitable proceeding. Laches is an equitable defense which is not applicable in a legal action.
It is undisputed that petitioner was tried by jury in the Judicial District of New London on criminal charges and was convicted of criminal attempt to commit murder, assault in the first degree and criminal mischief in the third degree. He was acquitted of a robbery charge. As a result of his conviction on January 19, 1993, a total effective sentence of forty years and six months consecutive to a sentence he was then serving was imposed.
At present, petitioner is a sentenced prisoner in the custody of petitioner serving the sentences imposed on January 19, 1993.
After petitioner was arrested on the charges for which he was tried, Attorney Bruce Sturman, public defender for the New London Judicial District, was appointed to represent him. Attorney Sturman represented petitioner in all aspects of the trial, including preparation before trial and the appeal after trial. It is petitioner's claim that Attorney Sturman's representation was constitutionally deficient.
I.
Petitioner appealed his conviction to the appellate court. The list of preliminary issues filed with the court was placed in evidence by petitioner and is as follows:
(1) Whether the court erred in allowing the consolidation of CR10-199203 and CR10-206256?
(2) Whether the court erred in granting the state's motion in limine allowing the defendant to be shackled during trial?
(3) Whether the court erred in denying defendant's motion for judgment of acquittal on the charges of attempted murder and assault in the first degree?
(4) Whether the court erred in sentencing the defendant to consecutive sentences for attempted murder and assault in the first degree?
(5) Such other error as might become apparent after a review of the transcript.
There is nothing in evidence in the present action that would indicate that any other issues were presented to the appellate court.
The appellate court affirmed petitioner's conviction by memorandum decision dated February 1, 1994. State v. Jones, 33 Conn.App. 934-35 (1994).
At the start of petitioner's criminal trial in 1993, when the array of potential jurors was brought in to be introduced to the case, petitioner, an African-American, perceived that it did not include any minority persons. He pointed this out to Attorney Sturman. Attorney Sturman testified in the habeas proceeding that he could not recall if any minority persons were in the initial array, but he did recall petitioner raising the issue with him. All agreed that there were no minority persons on the jury when the trial was heard.
No motion or other proceeding to alert the court of any complaint concerning the racial makeup of the array was made.
Jerome McKibben, Ph.D gave credible evidence at the habeas trial to the effect that at the time of petitioner's criminal trial in 1993, the African-American population of the New London Judicial District was 4.9 percent. The African-American population within the City of New London at the time was 17.1 percent. There was also testimony that the Latino population of the New London Judicial District at the time was 5.19 percent and 17.1 percent in the City of New London. There was no evidence of the racial composition of jury panels within the New London Judicial District at the time, and there was no evidence concerning the selection process then in use.
In his appeal, petitioner could have raised his claim that the jury selection procedure used at his trial violated his right to a jury drawn from a fair cross section of the community by excluding particular groups from the jury array resulting in a deprivation of his right to equal protection under the law. State v. Haskins, 188 Conn. 432 (1982). This claim, however, was not among the issues raised by petitioner in his appeal.
Respondent claims that since petitioner failed to raise the constitutional claim in his direct appeal, the claim is procedurally defaulted and cannot be raised by the habeas corpus procedure at this late date.
The position of the appellate court in matters such as we have here where a litigant seeks to raise, by way of a habeas petition, a claim not challenged at trial or on direct appeal, long after the event was made clear in Bowers v. Commissioner of Corrections, 33 Conn.App. 449 (1994), at page 451 where the court stated:
"This court strongly disfavor[s] collateral attacks upon judgments because such belated litigation undermines the important principle of . . ." (Citations omitted; internal quotation marks omitted.) Daley v. Hartford, 215 Conn. 14, 27, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990). Therefore, we will review the claim only where the petitioner demonstrates "good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation . . ." (Citations omitted.) McIver v. Warden, 28 Conn.App. 195, 198, 612 A.2d 108, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992), quoting Giannotti v. Warden, 26 Conn.App. 125, 129, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).
Cause turns on "whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule . . . [For example,] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . would constitute cause under this standard." Jackson v. Commissioner of Correction, 227 Conn. 124, 137, 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The cause and prejudice standard, however, "is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance."
Petitioner has presented no evidence of good cause for failure to raise the equal protection claim at trial or in his direct appeal. It must then be found that no good cause has been proven and that petitioner is procedurally defaulted and cannot raise the constitutional issue by way of a petition for habeas corpus. It is also noted that under the rules of criminal procedure, Section 810 (now Section 41-4), failure to raise the claim at the appropriate time would constitute a waiver of the defense.
II.
In the second count of the petition, it is claimed that by his attorney not raising the constitutional issue alleged in the first count, petitioner was deprived of ineffective assistance of counsel.
As a defendant in a criminal proceeding, petitioner was "constitutionally entitled to adequate and effective assistance of counsel at all critical stages of the criminal proceeding. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). This right arises under the Sixth and Fourteenth Amendments to the United States Constitution and Article 1st, § 8 of the Connecticut Constitution." Copas v. Commissioner of Correction, 234 Conn. 139, 153 (1995).
The general standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, supra, 466 U.S. 668. "In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance; and (2) actual prejudice . . . thus, he must establish not only that his counsel's performance was deficient, but as a result thereof, he suffered actually prejudice, namely, that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different. In this context, a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome of the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome . . . Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-06, 610 A.2d 592 (1992)." Mercer v. Commissioner of Correction, 51 Conn.App. 638, 640-41 (1999).
"In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove: (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial." Id.
Only if the petitioner succeeds in this herculean task will he receive a new trial. Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13 (2001).
Petitioner claims that his attorney was remiss because he failed to raise the equal protection claim at trial. The claim is that the jury procedure used violated his right to a jury drawn from a fair cross section by excluding groups from the jury array. To succeed on this claim, petitioner would have to prove "(1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in Venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under representation is due to systematic exclusion of the group in the jury selection process." Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). State v. Frazier, 185 Conn. 211, 216-17, 440 A.2d 916 (1981); State v. Machia, 38 Conn.Sup. 407, 412, 449 A.2d 1043 (1979)." State v. Haskins, supra, 188 Conn. 436.
The only evidence bearing on these factors consists of Dr. McKibben's testimony on the percentage of African-Americans and Hispanics in the New London Judicial District and the City of New London at or about the time of trial. There was also petitioner's testimony that the initial group of jurors assigned to the case contained no minorities. There was no evidence as to the racial makeup of other potential jurors waiting to be called or the racial makeup of jury panels in the New London Judicial District at the time. From such paucity of information, it cannot be found that there was under representation or that the procedure used was unfair or unreasonable in relation to persons in the community.
Even if under representation had been proven, there was absolutely no evidence of any systematic exclusion of any group in the jury selection process.
Petitioner has failed to prove that grounds for a challenge to the jury array, or the selection procedure, used at the time of his trial existed. He has also failed to demonstrate that if such a challenge had been instituted by Attorney Sturman, it would have had any chance of success.
Under such circumstances, it cannot be found that Attorney Sturman was deficient in not pursuing a challenge to the array. Also, there is no evidence that such an attack on the jury procedure would have succeeded or that petitioner suffered any prejudice by his attorney's failure to do so.
III
The third and fourth counts of the petition mirror the claims of the first and second counts, except that they allege that the jury selection process used at the trial violated petitioner's rights to equal protection as guaranteed by Article 1, Section 20, of the Constitution of Connecticut and that his attorney was remiss in his handling of the violation.
Article 1st, Section 20 of the Connecticut Constitution provides: "No person shall be denied the equal protection of the law nor be subject to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin."
It has been decided in a number of cases that our state constitution affords a higher level of protection for individual rights than does the minimum standard provided by the federal constitution. State v. Geisler, 222 Conn. 672 (1992).
There's nothing to indicate that the state constitution affords to its citizens, any greater protection on equal protection claims, as applied to jury selection, then does the federal constitution. Petitioner was introduced no authority on this point. State v. Haskins, supra, 188 Conn. 432, for example, analyzes federal cases in deciding a direct appeal of a challenge to the jury array based upon racial underrepresentation.
Our Supreme Court had adopted the federal standard (cause and prejudice) of Wainright v. Sykes, 443 U.S. 72 (1997) Supreme Court, 2497, 53 L.Ed.3d 594 (1997), as the appropriate standard for reviewability in a habeas corpus proceeding on constitutional claims not adequately preserved at trial because of procedural default, such as failure to challenge the jury array. Johnson v. Commissioner, 218 Conn. 403, 409 (1991).
Considering the applicable law and the facts in evidence, it must be found that petitioner has failed to prove the allegations of the third and fourth counts of the petition.
IV.
The fifth count alleges ineffective assistance of counsel. The claim here is that Attorney Sturman failed to investigate and pursue evidence and witnesses disclosed to him before and during the trial.
The evidence at trial, principally from the police officers involved, indicates that about 5:15 a.m. on July 30, 1991, Officer Patricia Jones of the New London Police Department was on special assignment when she encountered petitioner outside of a building at 37-39 Tilly Street. Officer Jones was aware that complaints had been filed concerning this building being used for drug transactions and loitering. She spoke to petitioner and informed him that he could not hang out in front of the building. She then called police headquarters and learned that a warrant had been issued for petitioner's arrest. The officer requested back-up assistance. Officer James Suarez responded first, followed by Officer Gary Potts.
The officers devised a plan to apprehend petitioner. Officer Potts was to remain in his vehicle while Jones and Suarez approached from opposite sides of the building. It was just then beginning to get light.
Officer Suarez did not know petitioner prior to this incident, but he had seen him around. As Suarez came around the building, petitioner was about 20 feet away. He was smiling and Officer Suarez testified that he had a gold tooth and was wearing a dark blue hooded sweatshirt with a zipper in the front. Petitioner came towards Suarez. When he was about four feet away, he ran into the building and up some stairs. In so doing, petitioner passed within a foot or two of Suarez. Officer Suarez looked through a window and observed petitioner going up a stairway. There were two sets of stairways. The second set was narrow with no landing at the third floor.
Officer Suarez pursued petitioner up the stairs. There was no artificial light, but some light came in through a window. Suarez saw petitioner enter the top-floor apartment. There was no door knob on the door to this apartment.
Petitioner and Suarez pushed against each other at the door. There was light in the apartment and Suarez could see petitioner as the door was pushed open. He could see petitioner's gold tooth and his face when the door was open. The officer saw no one else in the building.
Officer Suarez realized that he could not push the door open and was prepared to rejoin Officer Jones when he heard four shots. Three of the shots struck the officer. He did not actually see the person who fired the shots.
Although there was strong evidence that petitioner was present in the building at the time Officer Suarez was shot, there was no direct evidence as to who fired the shots. Officer Suarez was unable to testify as to who shot him. Identification of the shooter was then an important issue in the trial.
Proof that other people were in the third-floor apartment and who might have had a motive to shoot a police officer attempting to enter the apartment would be important. Petitioner testified that the third-floor apartment was a crack house where people would congregate to use drugs. Petitioner testified at the habeas trial that he gave Attorney Sturman the names of persons who could verify this. He did not testify, however, that there was a witness who could state that such persons were present in the apartment at the time of the shooting.
Attorney Sturman attempted to elicit testimony concerning the reputation and use of the third-floor apartment by drug users. He was, however, unable to show anything specific or to tie another person into the shooting. The state objected to any such testimony concerning the reputation of the apartment. The judge sustained the state's objection and Attorney Sturman was unable to introduce any such evidence. It does not appear then that petitioner suffered any prejudice as a result of his attorney not calling witnesses who could testify concerning the reputation of the third-floor apartment. It is extremely doubtful that the trial judge would have allowed such evidence to come before the jury.
Petitioner did not testify that he knew of witnesses who could testify that persons were present in the apartment at the time of the shooting.
Joyce Weldon, then petitioner's girlfriend, gave a written statement to the police shortly after the shooting. In this statement, she stated that she was with petitioner outside the building, that when the officer approached, he ran into the house and up the stairs. After the shooting when the wounded Officer Suarez came down the stairs, the statement says that she observed petitioner running from the back of the building. Petitioner claims that Attorney Sturman was remiss in not calling Ms. Weldon as a witness to testify that it would have been impossible for her to see him run from the back of the building from her then location.
At trial, Ms. Weldon disavowed her written statement and claimed, in effect, that it had been fabricated by the police. The statement was admitted over the strong objections of Attorney Sturman under the rule of State v. Whalen, 200 Conn. 743, 753 (1986). The fact that Ms. Weldon had repudiated her written statement was clearly brought out before the jury and petitioner suffered no prejudice as a result of her not being called to testify directly on this point.
Petitioner testified at the habeas trial that he gave Attorney Sturman the names of persons who could dispute the description of him given during the criminal trial. Joyce Weldon, for example, could have testified that petitioner never had a gold tooth as described by Officer Suarez. His aunt could have testified that the description of his hair was wrong and evidence could have been introduced through such witnesses to dispute the description of the clothing petitioner was wearing at the time of the shooting. Petitioner faults Attorney Sturman for not calling such witnesses.
Attorney Sturman testified that he could not locate his notes or his file for petitioner's criminal case. This is understandable since over ten years has elapsed since the time of trial. The attorney testified that he recalled having numerous pretrial conferences with petitioner and that it was his policy to request his investigator to check out witnesses such as those now mentioned by petitioner. It is extremely doubtful that any such testimony which might have pointed out discrepancies in identification evidence would have helped petitioner's case. Officer Suarez, for example, twice mentioned petitioner's gold tooth. Evidence that he was in error would have to be balanced against other identification evidence.
It was petitioner, Gary Jones, who the police were attempting to arrest. He was identified as being in the yard on Tilley Street by people who knew him, Officer Jones, Daniel Nixon and Joyce Weldon. They all saw him run into the building and up the stairs. Officer Suarez, although he did not know petitioner prior to the incident, observed him at the same time as the others. The officer could identify him. In running into the building, petitioner passed close to Officer Suarez. The officer then looked through the window and saw him climbing the stairs. The officer also identified petitioner as the person who was pushing the door just before the shooting. There was no evidence of any other person then being in the third-floor apartment.
In addition to the strong circumstantial evidence indicating that petitioner shot Officer Suarez, there was other direct evidence which indicated that he was the shooter. On July 31, 1991, petitioner was arrested and brought to the New London police headquarters where he was questioned by Sergeant William R. Lacey. The weapon which had been used to shoot Officer Suarez had not been found and Lacey was concerned about the harm which the weapon lying about might cause to the community. He questioned petitioner about the gun. Sergeant Lacey's testimony concerning this interview is as follows.
Q What did you ask him?
A When I asked him where he dropped the gun, he indicated he dropped it at the house and then I asked him what house, and he said where it happened.
Q Did you then ask him another question?
A Yes, the question I had asked him was again, like I said, if he was talking about the house where the officer was shot, I asked that to him.
Q What was his response?
A He said yes.
Q Did you ask any further questions of Gary Jones?
A I asked him where in the house he left the gun.
Q What was his response?
He said I dropped it right there where the officer was after I shot him.
Considering all of the evidence on the subject, including a careful review of the trial transcript, it must be found that petitioner has failed to prove that in representing petitioner, Attorney Sturman's performance fell below the required standard of reasonable competence required by the law. Also, it has not been proven that petitioner severed any actual prejudice as a result of Attorney Sturman's representation of him.
Accordingly, the petition for habeas corpus is denied.
Joseph J. Purtill Judge Trial Referee