Opinion
No. CV 99-0429971 S
August 15, 2006
MEMORANDUM OF DECISION
The petitioner was the defendant in the criminal case of State v. Peter LeGrande, docket number 16-83467, judicial district of Hartford. He was originally charged in a six-count information with two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), and one count of risk of injury to a minor in violation of General Statutes § 53-21, all with regard to a complainant known as Maribeth. He was also charged in the same information with two counts of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1), and one count of risk of injury to a minor in violation of General Statutes § 53-21, all with regard to a complainant known as Stephanie. He was represented at trial, by Attorney Jeremy Weingast.
The criminal case was tried in November 1997. At the conclusion of the state's case the trial court (Devlin, J.) dismissed the first charge of sexual assault in the first degree with respect to Maribeth on the grounds of insufficient evidence. The state then filed an amended information, which deleted the dismissed charge, and the trial resumed. On November 25, 1997 the jury found the petitioner guilty of the two counts of risk of injury to a minor and the two counts of sexual assault in the second degree. The jury was unable to reach a verdict on the remaining sexual assault in the first degree charge and a mistrial was declared on that count. The trial court sentenced the petitioner to a total effective sentence of thirty years, suspended after twenty years on the four charges of which he had been convicted.
On appeal the Appellate Court reversed the conviction of risk of injury to a minor with respect to Maribeth, and affirmed the three convictions involving Stephanie. State v. LeGrande, 60 Conn.App. 408 (2000). Certification was denied by the Connecticut Supreme Court, State v. LeGrande, 255 Conn. 925 (2001). On March 9, 2001, the trial court, acting on the remand from the Appellate Court, resentenced the petitioner to a total effective sentence of twenty-five years, suspended after fifteen years. The petitioner is presently in the custody of the respondent as a result of said sentence.
The petitioner, by counsel, filed a four-count amended petition for a writ of habeas corpus on October 14, 2005, alleging that his state and federal constitutional rights were violated because Mr. Weingast rendered ineffective assistance of counsel in various respects.
The first court alleges, in support of the claim of ineffective assistance of counsel, that trial counsel did no investigation with respect to the petitioner's case or the state's case, that he did not investigate motives for the alleged victims to lie, that he did not investigate or offer testimony from witnesses to corroborate the petitioner's testimony and to contradict the victims' testimony, that Mr. Weingast stated that "how distasteful it was for him to be going to trial on these charges," and that his counsel argued for him to enter a plea. The second count incorporates the entire first count and adds that trial counsel was ineffective in his cross-examination of the victims. The third count incorporates all of the allegations of counts one and two and adds a claim that trial counsel was ineffective in not objecting to the state's motion to amend the "long term information." The final count incorporates all of the allegations of the prior three counts and adds that trial counsel was ineffective in that he failed to call to the court's or jury's attention that his wife was threatened by the state's investigator immediately prior to giving her testimony, and that counsel prevented the petitioner from shielding his wife from the threats.
This court heard the amended petition on May 23, 2006. The petitioner was the only witness at the habeas trial. The trial transcript was marked as an exhibit.
The petitioner is entitled to receive effective assistance of trial counsel. "A petitioner'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. The right to counsel is the right to the effective assistance of counsel . . . The right to counsel, however, is the right to effective assistance and not the right to perfect representation." (Internal quotation marks omitted.) Woods v. Commissioner of Correction, supra, 85 Conn.App. 549.
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
"To establish the first prong of the Strickland test, the petitioner must first establish that his attorney's performance was "not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . ." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 29 Conn.App. 162, 170, 614 A.2d 842 (1992), rev'd on other grounds, 229 Conn. 397, 641 A.2d 1356 (1994). The court must be mindful that "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 798-99.
"Turning to the prejudice component of the Strickland test, "[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Woods v. Commissioner of Correction, supra, 85 Conn.App. 550. A court "hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury . . . [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." Strickland v. Washington, supra, 466 U.S. 695-96." Lewis v. Commissioner of Correction, 89 Conn.App. 850, 854-56 (2005).
"A court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice." Dull v. Commissioner of Correction, 96 Conn.App. 787, 789 (2006).
The first count alleges that Mr. Weingast was ineffective because he didn't investigate various matters. Specifically it is claimed that he failed to investigate the state's case, the defense case, information provided by the petitioner to develop a defense, motives for the victims to lie, and alleged statements made to family members by the victims. It is also claimed that Mr. Weingast failed to call family members, whose testimony would contradict the victims' testimony, as witnesses. The only witness at the habeas trial was the petitioner. The was no evidence offered concerning what any additional investigation by defense counsel would have produced. In order to prevail on a claim of ineffective assistance of counsel arising out of an inadequate investigation, the petitioner must show what the further investigation would have revealed and how it would have helped him. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989); Holley v. Commissioner, 62 Conn.App. 170, 175 (2001). What various people who were not called to testify at the habeas trial would have testified to is unwarranted speculation. "The 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." State v. Talton, 197 Conn. 280, 297 (1985).
The first count also alleges that trial counsel told petitioner that it was "distasteful" to him to go to trial on these charges. There is nothing in the record that even suggests that this remark, if it was in fact made, had any effect on counsel's representation of the petitioner. This claim is without merit.
The final claim in the first count is that trial counsel was disloyal because he argued for the petitioner to enter a plea rather than going to trial. The evidence was that the state made a pre-trial offer of a sentence of six years if he would plead guilty to criminal charges, that Mr. Weingast recommended that the petitioner accept the offer, and the petitioner rejected the offer. The petitioner had been convicted previously of three sexual assault charges, and was now facing trial on further sexual assault charges that exposed him to a sentence of up to eighty years. The petitioner has not suggested either why the fact that Mr. Weingast recommended that he accept the offer was deficient representation, or how he was prejudiced by the recommendation. The petitioner has failed to prove deficient performance or prejudice with respect to the allegations of the first count.
The second count alleges that Mr. Weingast did not properly cross-examine the victims and did not call witnesses to contradict the victims' testimony. A review of the transcripts in evidence demonstrates that defense counsel did cross-examine both victims as effectively as he could under all the circumstances. As indicated above, what witnesses who were not called in the habeas trial would have testified to is total speculation. The petitioner has failed to prove that Mr. Weingast was deficient in any of the ways alleged in the second count and has also failed to prove any prejudice as a result of that conduct.
The third count alleges that defense counsel was ineffective in that he failed to object or present an argument to the state's motion to amend the "long term information," filed after the victims' testified. There was no evidence presented at the habeas trial concerning this claim or is it mentioned in the petitioner's brief. A review of exhibit 1E on pages 74-81 discloses that on November 20, 1997, during the trial, the state moved to file an amended information, that the court heard argument by the state in support of the motion and argument by defense counsel in opposition, and that the court allowed the amended information to be filed. The court assumes that this is the information to which the third count of the petition refers. It is apparent that Mr. Weingast did object and argue against the filing of the amended information. This claim is without merit.
The fourth count alleges that defense counsel was ineffective in that he failed to call to the court's or jury's attention that the petitioner's wife was threatened by the state's investigator immediately prior to giving her testimony and that counsel prevented the petitioner from shielding his wife from the threats. The petitioner's wife did not testify at the habeas trial. There was no evidence offered in support of the claim that she was threatened by a state investigator, and the interaction between defense counsel and the petitioner, as described by the petitioner, is irrelevant to the claims of ineffective assistance of counsel.
In summary, the petitioner has failed to prove that his trial counsel provided deficient representation in any of the ways alleged in his amended petition, and he has further failed to prove that any of the conduct alleged caused him any prejudice.
The amended petition is dismissed.