Opinion
No. 559951
May 12, 2004
MEMORANDUM OF DECISION
By her amended petition filed May 16, 2003, petitioner seeks a writ of habeas corpus claiming ineffective assistance of counsel. The petition is denied.
After trial by jury, petitioner was convicted of felony murder in violation of Connecticut General Statutes § 53a-54c, conspiracy to commit robbery in the first degree in violation of Connecticut General Statutes §§ 53a-134(a)(3) and 53a-48(a) and attempt to commit robbery in the first degree in violation of Connecticut General Statutes §§ 53a-49(a)(2) and 53a-134(a)(3).
As a consequence of such conviction, petitioner received a total effective sentence of fifty years. She is now in the custody of respondent serving this sentence.
The facts underlying petitioner's conviction may be summarized as follows. On the evening of February 23, 1996, petitioner, Lucius Richardson, and others were socializing in an apartment on Martin Street in Hartford. It was revealed that petitioner and Richardson had a plan to rob a taxi driver. At approximately 10:30 p.m., petitioner placed a call to the Yellow Cab Company and inquired when the drivers changed shifts. Petitioner sought this information in the belief that the later in the driver's shift, the more cash the driver would have collected. At approximately 1:30 a.m., February 24, 1996, petitioner again called the cab company and requested that a taxi be sent to 82 Martin Street. Richardson and petitioner then changed into dark clothes. Richardson armed himself with a power drill that resembled a gun and petitioner concealed a knife in her pants. They then left the apartment to await the arrival of the taxi. When the taxi arrived, petitioner entered the vehicle on the rear passenger side. Richardson sat behind the driver and proceeded to place the drill behind the driver's head demanding that the driver give him all of his money. When the driver did not respond immediately, Richardson struck him with the drill and a struggle ensued with the driver grabbing Richardson. During the struggle, petitioner stabbed the driver several times. The petitioner and Richardson then fled the scene. The driver died as a result of his stab wounds. Several days later, February 27, 1996, the police arrested petitioner and brought her to the police station at 10:00 p.m. At the time, petitioner was fourteen years of age and a runaway from an alternative to detention program. The Department of Children and Families was her legal guardian. The police located William Ledbetter, petitioner's biological father whose parental rights had never been terminated, although he had never lived with petitioner on a continuing basis and informed him that petitioner was in police custody. Mr. Ledbetter soon arrived at the police station and was permitted to speak privately with petitioner. Maureen Daly, a DCF social worker assigned to respond to case emergencies after normal business hours, also arrived at the police station and spoke with petitioner and her father. State v. Ledbetter, 263 Conn. 1, 5-8 (2003).
Petitioner's version of the event claims that Richardson stabbed the driver.
While petitioner and her father were alone, petitioner told her father what happened and her involvement in the robbery and the stabbing of the cab driver. She said it was Richardson who did the actual stabbing. Mr. Ledbetter had an extensive criminal record with considerable involvement with the criminal courts. He advised petitioner that since she was only fourteen years old, her case would be handled in the juvenile court and that at the most, she could only be held until her eighteenth birthday. Mr. Ledbetter also told his daughter that since in her statement she said that she did not actually stab the taxi driver, she could not be charged with murder. He also advised his daughter that giving a statement would be the Christian thing to do. Mr. Ledbetter advised petitioner that it would be in her best interest to give the police a statement. Petitioner agreed to do this and so informed the police.
Upon her arrival, Daly who was not petitioner's usual worker and had never met petitioner before, suggested that petitioner should consult with an attorney. Petitioner, however, indicated that she wished to speak to the police. Id. p. 8.
The police informed petitioner of her Miranda rights. The police did not inform petitioner that her case could be transferred to the regular criminal docket. Petitioner waived those rights and gave a written statement implicating herself in the crime but stating that Richardson did the actual stabbing. She was then arrested in connection with the cab driver's death.
Petitioner was initially brought before the juvenile court. The case was then transferred to the regular criminal docket of the Superior Court pursuant to Connecticut General Statutes § 46b-127 as amended.
Attorney Michael Isko, a senior assistant public defender, was assigned to represent petitioner. Attorney Isko represented petitioner in all of her pretrial matters and during her trial. Petitioner has alleged that in representing her, Attorney Isko was inefficient so as to violate her constitutional right to a fair trial.
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 actual 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, 445-46, 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 she receive a new trial. Denby v. Commissioner of Correction, 66 Conn. App. 809, 812-13 (2001).
In her brief, "[p]etitioner limits the issue of Attorney Isko's alleged ineffectiveness to one narrow question. Was he ineffective when he conceded voluntariness of the confession of his fourteen-year-old client? Very specifically, petitioner argued if voluntariness had not been conceded, she could then have claimed that the failure of the police to advise or warn the fourteen-year-old child that she would be tried as an adult could have been advanced on appeal if the trial court failed to suppress her statement."
In connection with his representation of petitioner, Attorney Isko filed a pleading entitled "amended motion to suppress the defendant's February 27, 1996 written statement to detectives Grabowski and Robert Dionne of the Hartford Police Department." The motion alleged that no one close to petitioner was present when the statement was taken. The petition alleged that petitioner was not advised about the consequences of her statement, she received no information about the role of function of counsel, and was given incorrect information about the consequence of her statement.
Motion then stated, "Consequently, under the state or federal constitutions, she did not voluntarily, knowingly and intelligently waive her Miranda rights prior to the giving of her statement and her statement was not voluntary, knowingly and intelligently made."
The main thrust of Attorney Isko's position with respect to the motion to suppress was that petitioner's statement was not intelligently or knowingly made in that she did not know the consequences of her waiver and she received no information from the police as to what the consequences of her statement would be.
In restricting his argument to whether the confession was intelligently or knowingly made, the attorney conceded that it was voluntary. Attorney Isko testified that he agreed the statement was voluntary in the expectation that the judge would not charge the jury on the voluntariness of the confession. This was a tactical decision.
At the time the motion to suppress was being litigated, Attorney Isko was under the impression that coercive police action was a necessary predicate to finding that a confession was not voluntary within the meaning of the due process clause was applicable to the case. Colorado v. Connelly, 479 U.S. 159, 107 S.Ct. 515 (1986). The law in Connecticut at the time, however, was that a confession which is coerced violated due process and should be excluded whether it resulted from pressure exerted by a police officer or a private individual. State v. Smith, 200 Conn. 465, 476 (1986). It is claimed that in view of William Ledbetter's advice to his daughter prior to her giving a statement to the police, Attorney Isko's failure to stress the rule of State v. Smith was ineffective assistance of counsel.
Petitioner's principal claim of ineffective assistance was Attorney Isko's concession admitting that her confession was voluntary. It is claimed that if voluntariness had not been specifically conceded, on appeal, petitioner could have raised the claim that the failure of the police to warn the fourteen-year-old that she could be tried as an adult rendered the confession invalid. This claim could have been raised under the state constitution. Because of the express waiver, the claim could not be raised under State v. Golding, 213 Conn. 233 (1989).
In State v. Perez, 218 Conn. 714, the principal issue on appeal was whether the fourteen-year-old juvenile who had been arrested for murder and whose case therefore had to be transferred from the juvenile docket to the regular criminal docket pursuant to Connecticut General Statutes § 46b-127(1) could validly waive his Miranda rights without a specific warning of the possibility of such transfer. Id., 715-16. In that case, the Supreme Court was urged to follow State v. Benoit, 126 N.H. 6, 490 A.2d 295 (1985), in which it was decided that a juvenile's rights against self incrimination could only be deemed voluntary, knowing and intelligent, if the juvenile was informed of the consequences that he could be tried as an adult. CT Page 7193 Id., 723. Our Supreme Court declined to follow Benoit, which was based upon the Constitution of New Hampshire.
In Perez, although the claim that the confession was invalid was presented in reliance in both the state and federal constitutions, there was no independent analysis of the state constitution. Without such analysis, the court declined to consider the state constitutional claim. Instead, defense counsel was required to rely upon the New Hampshire Constitution as followed in Benoit. Our Supreme Court declined to adopt the ruling in Benoit on this basis. Id., 723.
The court then went on to consider the defendant's claim under the federal constitution that for a valid waiver of his right against self incrimination, the fourteen-year-old juvenile must have been advised that he was subject to criminal prosecution as an adult.
The court then went on to decide that the federal constitution did not require this warning.
Petitioner argues that if Attorney Isko had not conceded that her confession was voluntary, she could have raised the same issue as in Perez, but with an analysis of the applicability of the state constitution using the criteria set forth in State v. Geisler, 222 Conn. 672, 685 (1992). Petitioner also relies on the fact that it has been held that in some instances, the protections afforded to the citizens of this state by our own constitution go beyond those provided by the federal constitution as that document has been interpreted by the United States Supreme Court. Id., 683.
The test to determine the admissibility of a confession in Connecticut at the time of petitioner's trial was, as stated in State v. Smith, supra, 200 Conn. 447, where the court stated that: "[T]he determination of whether a confession is voluntary must be based on a consideration of the totality of the circumstances." Petitioner argues that but for Attorney Isko's ineffective representation, she could have prevailed upon our Supreme Court to expand this rule and to adopt the Benoit rule based upon an analysis of our state constitution.
In State v. Perez, with no analysis of the state constitution, the court relied upon the federal constitution to determine that the totality of circumstances rule should apply to juveniles facing transfer to adult prosecution. Approving the totality of circumstances rule, our Supreme Court went on to add:
This conclusion is in accord with the overwhelming weight of the authorities that have considered this question. Those authorities have applied a totality of the circumstances test to confessions by juveniles, and have rejected the notion that such a confession is rendered involuntary solely by virtue of the fact that the police did not inform the juvenile that he could be protected as an adult, rather than as a juvenile.
Id., 727. The court then went on to cite decisions of eleven other states which have followed the totality of circumstances test to confessions by juveniles. In rejecting defendant's argument under the federal constitution, the "touchstone" of the court's analysis was Fare v. Michael C., 442 U.S. 707, 99 S.C.2d 560, 61 L.Ed.2d 197 (1979), in which the United States Supreme Court stated: "[T]he totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved . . . This includes evaluation of the juvenile's age, experience, education, background and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." Fare v. Michael C., supra, 725. The court expressed its confidence that the totality of the circumstances test affords a court the "necessary flexibility" to take into account a juvenile's "limited experience . . . education and . . . immature judgment . . ." Id., 725.
The court also found that its conclusion that the totality of circumstances test should be followed was supported by sound public policy. Id., 727. The language found in Perez indicates that the Supreme Court is not uncomfortable with the totality of circumstances rule and that it is the rule in a number of other states. In any event, the totality of circumstances rule was the law in Connecticut at the time petitioner's motion to suppress was decided. The court then went on to uphold the trial court's admission of Perez's confession under the totality of circumstances rule.
In denying petitioner's motion to suppress her confession, the court (Spada, J.) took into consideration the flawed advice given to her by her father. The court also found from the evidence that petitioner was "mentally competent, stable, unemotional and fluent in English, the language of her rights, waiver and confession." She was "alert, intelligent and self possessed." "There were no testimonial inconsistencies in her statement; and that she understood her rights and comprehended the full consequences of a waiver and that she never requested the services of an attorney." The trial court determined that the erroneous advice given by her father and that she voluntarily signed the waiver and confession in reliance of such advice was not a legally sufficient bar to the admission of her confession and that it was an artifice intending to bar the admission of her confession. The trial judge then went on to state his final conclusion that "Under the totality of the circumstances of this issue, the court concludes that the defendant's confession resulted from a knowing, intelligent and voluntary waiver of her Fifth and Sixth Amendment rights." The court then went on to deny the motion to suppress.
To prevail on her claim of ineffective assistance of counsel, petitioner must prove not only that Attorney's Isko's performance fell below the required standard of competence, but also that such lack of competence contributed so significantly as to deprive her of a fair trial. Mercer v. Commissioner of Correction, supra, 51 Conn. App. 641.
The respondent claims that, assuming arguendo, that Attorney Isko's performance was deficient, petitioner still has suffered no prejudice since there was sufficient evidence in the record to convict her without the confession. The principal evidence against petitioner at trial was the testimony of Danixa Sanchez and petitioner's confession. The testimony of Sanchez, if believed by the jury, together with other evidence, including the admissions made by petitioner to Maureen Daly, as to the purpose of the robbery would have been sufficient for a conviction. However, Ms. Sanchez gave two false statements about the crime to the police and her credibility was suspect. If the jury was required to rely principally on Ms. Sanchez's testimony without the confession, confidence in a conviction would be undermined. It is also argued by the respondent that if the confession had been suppressed, an agreement could have been made by the state with Lucius Richardson so that he would have testified against petitioner. While this may have been possible, it is now pure speculation that it could have been done. See State v. Richardson, 69 Conn. App. 250 (2002).
Petitioner claims in this case Attorney Isko was ineffective when he conceded that the confession was voluntary. His testimony in the habeas trial was that he made this concession so that the judge would not charge on the issue. This was a tactical decision. As a rule, courts are reluctant to second guess trial counsel in making such decisions and there is a strong presumption that such decisions are the exercise of reasonable professional judgment. This is particularly true in the case of an experienced trial attorney such as Attorney Isko.
In this case, the judge refused to give Attorney Isko's requested charge. The judge, however, did allow him to argue to the jury as to whether the confession was reliable and whether or not it was voluntarily made. Attorney Isko then did argue to the jury that the confession was not voluntary. The judge properly instructed the jury on this issue. State v. Ledbetter, supra, 263 Conn. 18-22.
Even though Attorney Isko's tactical decision to concede that the confession was voluntary was not successful in its intent, petitioner suffered no prejudice as a result of the concession. A review of the transcript clearly indicates that the voluntariness of the confession remained an issue throughout the trial and was presented to the jury.
Attorney Isko's concession that plaintiff's confession was voluntary was made in connection with the motion to suppress her confession. In the memorandum of decision denying the motion, the concession was noted by the judge. A review of the memorandum of decision, however, reveals that, while the concession may have been a factor, the judge relied upon the evidence and the facts presented to reach the conclusion that under the totality of the circumstances, the confession resulted from a knowing, intelligent waiver of petitioner's Fifth and Sixth Amendment rights.
Even if Attorney Isko's concession of the voluntariness of the confession and his failure to argue the principle of State v. Smith constituted ineffective assistance of counsel, it does not appear that such action altered the outcome of the case. The judge considered the facts presented, applied the correct law, and reached the conclusion that the confession should come into evidence.
Petitioner claims that Attorney Isko's ineffective assistance resulted in her inability to expand the Miranda warning for fourteen-year-old persons subject to transfer to the regular criminal docket in accord with State v. Benoit, supra, by an analysis of the state constitution. In view of the strong language used by the Supreme Court in State v. Perez, supra, particularly the conclusion that the present rule is supported by strong public policy makes this claim speculative at best. It cannot be found that petitioner suffered any prejudice by her inability to present this claim on appeal.
For reasons above stated, the petition for a writ of habeas corpus is denied.
Joseph J. Purtill Judge Trial Referee