Opinion
No. CV 06 4000949 S
September 15, 2008
MEMORANDUM OF DECISION
The petitioner, Jermaine Little, filed a petition for a writ of habeas corpus on February 3, 2006, challenging the legality of his detention. The petitioner was arrested on September 10, 2003, and charged with kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B), burglary in the first degree in violation of General Statutes § 53a-101(a)(1), and robbery in the first degree in violation of General Statutes § 53a-134(a)(3). The petitioner was initially represented by attorney David Egan. After the petitioner's motion to dismiss attorney Egan was granted, attorney Charles Kurmay was appointed to represent him. The petitioner ultimately pleaded guilty to the count of kidnapping in exchange for a nolle prosequi of the remaining counts and a recommended 188-month sentence, to be served concurrently with an identical federal sentence the petitioner then faced. The court imposed the agreed-upon sentence on March 14, 2005.
On May 23, 2007, the petitioner filed an amended petition in which he alleges that attorney Kurmay provided ineffective assistance in that he inadequately advised him of the charges against him, insufficiently investigated the case, and failed to determine whether he was mentally competent to plead guilty or whether the plea was knowing, intelligent and voluntary. He claims that, were it not for attorney Kurmay's ineffective assistance, he would not have pleaded guilty and would have taken the case to trial. He seeks to have his plea vacated and to obtain a new trial.
FINDINGS OF FACT
The record reveals the following relevant underlying facts. On September 9, 2003, the victim, Jerry Brown, was kidnapped at gunpoint by three men who pulled up in a white Mazda minivan as he left his business in Shelton. The men forced Brown into his car and demanded Brown's money, threatening to kill him if he did not comply. He said his money was at home, so they began driving to his house. While en route, the white Mazda minivan pulled alongside Brown's car and the driver motioned the men in Brown's car to call him, which they did, using Brown's cell phone. When they arrived at Brown's house the men removed approximately twenty-five to twenty-eight thousand dollars in cash, checks and jewelry. The driver of the van, whom Brown later identified as the petitioner, was in the house as well. The police contacted Brown's cellular phone service provider and obtained the phone number that Brown's abductors had called while driving to his house. The number was registered to "Tremaine Little" with an address of 1 Lombard Court in Bridgeport. When police investigated this address, they determined that "Tremaine Little" was actually Jermaine Little, the petitioner. Subsequent investigation corroborated that the phone number Brown's phone had called was in fact the petitioner's phone number, and that the petitioner was known to drive a white Mazda minivan.
Later that day, the petitioner called the police station to determine whether a warrant was out for his arrest, and turned himself in. He denied involvement in the kidnapping and robbery, but provided inconsistent information throughout the interview, first denying that the phone number belonged to him and that he drove a white minivan, but then admitting to both. He was arrested while at the police station.
The petitioner initially pleaded not guilty and consistently exhibited an intent to take the case to trial. He filed one motion for a speedy trial on his own, while being represented by attorney Egan, but Egan withdrew it soon after. He maintained his insistence on taking the case to trial until December 22, 2004, when attorney Kurmay informed the court that the petitioner wished to change his plea. At the time of the plea, the petitioner was taking the medications Seroquel and Prozac, and was on suicide watch after an attempt earlier that month. The court, Carroll, J., canvassed the petitioner thoroughly on whether his medications impaired his ability to understand the nature of the proceedings, whether he had discussed the charges against him with attorney Kurmay, whether he was aware of the evidence the state had against him, whether the plea was being made knowingly and voluntarily, that he faced up to twenty-five years on the kidnapping count alone, and that he was giving up various enumerated rights by pleading guilty. The court accepted the plea, and sentenced the petitioner, after his federal sentence had been entered, to 188 months incarceration, to run concurrently both with his federal sentence and a previous eight-year Connecticut sentence the petitioner was then currently serving.
At the habeas trial, the petitioner testified that he never went over the evidence on the kidnapping charge with attorney Kurmay, and asserted that he never kidnapped anyone. He claimed that attorney Kurmay said not to say anything about his medications at the plea hearing, and told him to let the judge do the talking and to just answer questions. He claimed that attorney Kurmay coerced him into pleading guilty and that attorney Kurmay got his grandmother to write a letter imploring him to plead guilty by telling his grandmother that he would get a life sentence if he did not, which influenced his decision. He claims to have been unable to focus on the day of his plea as a result of the Seroquel, and to have had no intention of ever pleading guilty that day.
Attorney Kurmay testified that the evidence against the petitioner was very strong. He also testified that he discussed the petitioner's options with him, and the petitioner appeared to understand what he faced. The petitioner faced over sixty-five years all told on the charges against him. Although the petitioner did previously express a desire to go to trial, the petitioner was lucid on the day of his plea and understood what he was doing.
Additional facts will be discussed as necessary.
DISCUSSION
"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). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. 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 . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008).
"In Hill v. Lockhart, 474 U.S. 52, [ 106 S.Ct. 366, 88 L.Ed.2d 203 (1985),] the [United States Supreme] [C]ourt determined that the same two-part standard applies to claims arising from the plea negotiation process . . . Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard . . . [I]n order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial . . .
"The Hill court also stated that the petitioner must show that such a decision to plead not guilty would have been based on the likelihood that the introduction of the evidence or the defense that was not identified because of ineffective assistance of counsel would have been successful at trial." (Citations omitted; internal quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 156, 662 A.2d 718 (1995). A petitioner must also demonstrate a "likelihood that his defenses would succeed in providing a more favorable outcome." Id., 157 n. 10.
The petitioner's various claims of ineffective assistance of counsel may all neatly be disposed of on the prejudice prong of Strickland. Not only must he show that he would have elected to go to trial, but that he would have achieved a more favorable outcome as a result. This he cannot do.
Attorney Kurmay testified that the evidence against the petitioner was very strong, and the record supports this conclusion. The petitioner was immediately identified by the victim as the driver of the white Mazda van and the fourth person who entered the victim's house from a photo array. The petitioner's cell phone was determined to belong to the driver of the white Mazda van and the one called while Brown's car was being driven to his home by his kidnappers. An acquaintance of the petitioner's, Lourdes Millet, gave a statement to the police that the petitioner drove a white Mazda MPV minivan and that his cell phone number matched the number called from Brown's phone the night of the incident. The petitioner's initial interview with police when he turned himself in was fraught with inconsistencies and he could not account for a significant chunk of time on the night of the incident. Finally, the petitioner has submitted nothing at his habeas trial that could potentially countervail any of this evidence other than his own testimony that he "never kidnapped anyone."
The court notes that Exhibit F, the only photo array submitted as evidence in this case, shows eight invidivuals with one circled and "EE 9-21-03 12:33" written underneath. On the upper right-hand corner of the page is written "Shelton P.D. 03-175; 9-21-03 BT; from Evin Ezekiel." Presumably, this was submitted in error; otherwise, its significance is unknown. Nevertheless, two separate police reports (Exhs. J, M) reflect that the victim in this case, Jerry Brown, identified the petitioner from a photo array, and attorney Kurmay testified to this fact at the habeas trial. The court finds this credible even absent direct evidence of the actual photo array used.
This court must determine whether, based on the evidence presented, it was more likely than not that, if the petitioner had gone to trial, a jury would have found beyond a reasonable doubt that he was innocent of the crimes charged. See Siemon v. Stoughton, 184 Conn. 547, 557, 440 A.2d 210 (1981) (to show prejudice, "[t]he test should be whether an adequate factual investigation would have enabled counsel to cast reasonable doubt on the government's evidence"); see also Provost v. Commissioner of Correction, Superior Court, judicial district of Hartford, Docket No. CV 00 0802785 (December 8, 2003, Rittenband, J.) (same); cf. Kaddah v. Commissioner of Correction, 105 Conn.App. 430, 939 A.2d 1185, cert. denied, 286 Conn. 903, 943 A.2d 1101 (2008) (petitioner convicted after jury trial; claimed prejudice because he did not testify; court found no prejudice where evidence of petitioner's guilt was "overwhelming" and his proposed testimony was simply to say, "I'm not guilty"). The evidence clearly reveals that the petitioner was present, with a firearm, in Brown's home when the robbery took place. It also reveals that the petitioner drove the rest of the kidnappers to Brown's workplace to set up the kidnapping and robbery. Either instance alone would be sufficient for a jury to convict the petitioner of either directly, or as an accomplice, "abduct[ing] another person and . . . restrain[ing] the person abducted with the intent to . . . accomplish or advance the commission of a felony." General Statutes § 53a-92(a)(2)(B). "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner . . . Mere conjecture and speculation are not enough to support a showing of prejudice." (Citation omitted; internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn.App. 526, 532, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007). In the absence of any compelling contrary evidence, this court cannot say that the petitioner would have been likely to be successful had he chosen to go to trial.
Furthermore, the petitioner faced additional charges and, if he had chosen to go to trial, would have been exposed to a total possible sentence of sixty-five years. It is highly unlikely that he would have obtained a more favorable result than the fifteen years and eight months he received under the plea agreement. There would also be no guarantee that the sentence would be set up to run concurrently with the federal sentence he faced, as the plea agreement provided. Therefore, even if deficient performance were to be presumed, the petitioner was not prejudiced thereby.
The petitioner has also not met the first prong of Strickland. Nothing in the record demonstrates deficient performance on attorney Kurmay's part. Attorney Kurmay credibly testified that he went over the case with the petitioner and advised him of all his options. He also testified that the petitioner, on the date of the plea hearing, appeared lucid and could understand what was going on. Both contentions are borne out by the transcript of the plea hearing, at which the petitioner stated that he was satisfied with the advice of his attorney, went through the charges with the judge, and was queried as to his competence and found to be competent. The petitioner claims attorney Kurmay did not sufficiently investigate the case, but has not specified what further investigation attorney Kurmay should have conducted that would have been beneficial to the petitioner. In short, this court sees nothing about attorney Kurmay's performance that "fell below an objective standard of reasonableness." Johnson v. Commissioner of Correction, 285 Conn. 556, 577, 941 A.2d 248 (2008).
Finally, the petitioner has failed to establish that, but for counsel's conduct, he would have gone to trial in the first place. While it is clear that the petitioner had previously expressed a desire to go to trial, the record also reveals that he made the decision to accept the state's plea offer knowingly, intelligently and voluntarily. Although he now claims that he was unable to understand the proceedings due to his medication and the fact that he was on suicide watch, the trial court determined that he was competent to make the plea, and he has submitted no evidence to the contrary other than medical records indicating he was on Seroquel and his own self-serving testimony at present. "A defendant who suffers from a mental or emotional impairment is not necessarily incompetent to enter a guilty plea . . . [Moreover, the] fact that the defendant was receiving medication . . . [of itself] does not render him incompetent." (Citation omitted; internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 451-52, 936 A.2d 611 (2007) (finding no prejudice where only evidence of incompetence due to medication was petitioner's own uncorroborated testimony that he was "able to think more clearly" after going off medication). He appears to have been coherent and responsive to the questions posed during the court's canvass, and even had the presence of mind to ask questions of his own. (Exh. A, pp. 3-4, 9-11.) Attorney Kurmay testified at the habeas trial that the petitioner appeared to be lucid and to understand the nature and effect of entering the plea. There is nothing to indicate that any acts or omissions of attorney Kurmay in assessing whether the petitioner was competent constituted deficient performance, nor is there any indication that the petitioner, had he not been on medication, would have decided to go to trial and not accept the plea.
Therefore, the petitioner has failed to prove that he received ineffective assistance of counsel, and his petition is hereby DENIED. The petitioner's counsel shall submit a judgment file to the court within thirty days.