Opinion
No. CV03-825681
February 9, 2009
THE COURT: All right. We are back on the record regarding Mr. Eaker McClendon v. Warden, and the Court is prepared to rule.
The Court, obviously, reviewed the pleadings, the amended return — the amended complaint, rather, the petition, the return, and the reply to the return. And the Court is not really going to address the defense of procedural default inasmuch as the Court is going to reach the merits of the claims.
With regard to this particular matter, the Court heard the testimony from the petitioner, Mr. Eaker McClendon. Also, the Court heard the testimony of his former attorney, Mr. Dakers, and the Court heard the testimony from the two Assistant State's Attorneys, Mr. Pepper and Mr. O'Brien.
The Court had the benefit of a number of exhibits, including the Exhibit 3, which is a transcript — a partial transcript of proceedings in the matter of State v. Leotis Payne, the matter that went to trial before Judge McMahon, in particular the testimony of one Demetrius Diaz, which is set forth in a number of the pages in Petitioner's 3. Obviously, Mr. Diaz's testimony and his statement is also in evidence and is the basis of much of the claim by the petitioner.
The Court also had the benefit of the trial transcripts in the underlying matter of State v McClendon, CR94-404150, those being Volumes I and II, Respondent's A and B respectively. And the Court did not review the entirety of those transcripts but did review those portions which the Court deemed relevant.
In addition, by agreement of counsel, a number of other exhibits were admitted as full exhibits, a decision by the state appeals Court in State v. McClendon, which this Court read in full. That is Respondent's D, a decision by the late Judge Spallone.
In addition, as a full exhibit, Exhibit 1 was a supplemental response to discovery sent by Attorney Michael Pepper to Mr. Donald Dakers. The Court has also reviewed the petitioner's pretrial brief, which is hand-dated February 9 of `09, and in evidence are other exhibits which the Court has reviewed.
Petitioner's — excuse me. Respondent's E and F, the waiver of rights form and the typed statement of Eaker McClendon from the New Haven Police Department. The Court has reviewed those exhibits in full.
In addition, the Court has reviewed in full Petitioner's — excuse me — Respondent's C, which is the transcript of the sentencing before the Honorable Joseph Licari, and that sentencing is, of course, of Mr. McClendon post-conviction after a jury trial.
The Court makes the following findings of fact: that the petitioner was a defendant in the criminal case of State v. Eaker McClendon at the Judicial District of New Haven. The Court finds further that the petitioner was one of three persons charged with the crimes of felony murder and robbery. The other two defendants were Alexander Lacks and Leotis Payne and were tried and convicted separately.
The Court finds that the petitioner was found guilty on May 19, 1998 of the crimes of felony murder, in violation of Connecticut General Statutes Section 53a-54c, and robbery in the first degree, in violation of Connecticut General Statutes Section 53a-134(a)(2), and Connecticut General Statutes Section 53a-8 as an accessory. That occurred after a trial by jury before the Honorable Judge Joseph Licari.
The Court also finds that the petitioner's convictions were affirmed on appeal in the matter of State v. Eaker McClendon, 56 Conn.App. 500, a 2000 decision, which the Court has indicated was Respondent's D.
The Court finds that Mr. McClendon proceeded to trial following a trial in the matter of State v. Payne and also State v. Lacks. The Court understands that the Payne case, I believe, was overruled and remanded for retrial which resulted in a conviction of Mr. Payne, and Mr. Lack's case, also, was ultimately a conviction.
The Court finds that on July 24, 98, Judge Licari sentenced the petitioner to a term of imprisonment of thirty-five years to serve on the charge of felony murder and twenty years to serve — to run concurrent — on the charge of robbery in the first degree; total effective sentence, thirty-five years.
The Court finds that at trial, the petitioner was represented by Attorney Donald Dakers, a special public defender. At trial, the state was represented by Mr. O'Brien, Mr. Robert O'Brien.
The petitioner's claims are set forth substantially in the amended petition dated October 24, `08, and in the complaint which frames the allegations, the petitioner sets forth a claim of ineffective assistance of counsel. Specifically, in Paragraphs 5, 6, 7, and 8, the petitioner sets forth the substance of his complaints with regard to the performance of Mr. Dakers.
Paragraph 5 alleges that defense counsel did not adequately advise the petitioner of his options concerning whether to enter a guilty plea or proceed to trial.
Before the Court reviews each allegation and the evidence which bears upon each and the Court's finding with respect to each allegation, it's noted, and I think petitioner has set forth well the applicable law in the area of habeas corpus relief.
Mr. Sexton has accurately stated that under the seminal case of Strickland v. Washington, it is the petitioner's burden to prove deficient performance of the attorney, and secondly, that there was prejudice as a result of the representation of the trial attorney. The Courts have noted that the quality and quantum proof is high indeed for a petitioner to obtain a new trial or other relief that is sought, and the Court notes that other relief — including sentence review and other claims — are sought here on behalf of Mr. McClendon.
The petitioner must show that counsel's performance was not only deficient, but it arose to a constitutional magnitude resulting in unfairness. In short, the petitioner must show deficiency and prejudice, that but for counsel's errors, the result would likely have been different.
The Court cannot engage in a hindsight evaluation to reconstruct the circumstances of counsel's claimed conduct which was deficient and to evaluate the conduct in counsel's perspective at the time. The Court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance. That language comes from Henry v. Commissioner, a 2000 Connecticut Appellate Court case.
Here, with regard to the specific allegation in Paragraph 5, the Court accredits the testimony of Mr. Dakers, who I think was quite candid and forthright in his inability to recall many events of many years ago, but on certain matters, he was unequivocal.
And specifically, the Court finds the allegation in Paragraph 5 to be unproven. The Court accredits the testimony of Mr. Dakers that he, in fact, discussed the plea offer of twenty-five years, and there was credible evidence from Attorneys Pepper and O'Brien that the pretrial offer was originally twenty-five years.
Attorney Pepper, I believe, testified that it was Judge Damiani at a pretrial who gave that Court-indicated sentence, which apparently did not change. The matter found its way to Judge Robert Devlin. All the while, the state never wavered from coming off the felony murder charge, which carried a mandatory-minimum, twenty-five-year sentence.
It's clear from the record that when Attorney Pepper left the employ of the State's Attorney's Office on a temporary basis or for some reason that's not clear, Mr. O'Brien took over representation on the part of the state in the prosecution of State v. McClendon.
Mr. Pepper was trial counsel in both the Payne matter and the Lacks matter and had initially been the state's representative in the McClendon matter.
This Court finds that Mr. Dakers' role as the second attorney was fulfilled consciously and vigorously. The Court finds that Mr. Dakers himself assumed representation after a previous public defender — I believe his name was Attorney Bachman — had represented Mr. McClendon.
And it was Attorney Bachman who — for at least a period of eight months and to a longer degree — at the time of initial presentment and through initial pretrial negotiation conducted an investigation, including the employ of a private investigator, and from all accounts committed due diligence in his preparation of a defense and communicated same to Mr. McClendon, both at court and indeed in a couple of visits to the Whalley Avenue jail.
Mr. Dakers took over the file, it appears, at the latter stages of pretrial negotiation and then at trial. The Court notes that Mr. Dakers at the time of the assignment was an experienced criminal defense attorney, and at the time he left employ with the state or as a special public defender he had in excess of thirty years as a trial attorney and tried in excess of thirty homicide cases.
Mr. Dakers had his file with him today, after some searching had located it — the
Court recalls — at the last court proceeding and made available the file to petitioner's counsel, who, in fact, was able to obtain a copy of it. The Court finds that Mr. Dakers' scope of investigation was really for the purposes of trial preparation.
In so doing, Mr. Dakers reviewed the evidence in the file, including a statement by a
Demetrius Diaz. It's clear that statement was provided to Mr. Dakers, and that's apparent
in one of the exhibits, which is a supplemental disclosure document prepared by Attorney Pepper and given to Mr. Dakers specifically on the issue of the Diaz statement. Pardon me.
The Court accredits the testimony of Mr. McClendon that Mr. Dakers, in fact, discussed the import of Mr. Diaz's testimony, both at the Payne case and his written statement. The Court finds that the defense attorney representing Mr. McClendon developed a cogent strategy of defense — where, in essence, the claim was by the state — of Mr. McClendon was an accessory in a felony murder, death, for which Mr. Payne and Mr. Lacks were also charged and tried.
The facts of the case are adequately set forth in the Appellate Court decision by Judge Spallone, and the Court, in reviewing those, notes that the McClendon case itself went up on appeal exclusively on a sufficiency of evidence issue, whereupon the Court, after reviewing the transcript and the evidence, affirmed the conviction.
And in a general sense, the Court, when I summarize the facts, it appears that — and this is a very broad summary — the jury could reasonably have found after the trial of Mr. McClendon that it was Mr. McClendon and Mr. Lacks who appeared with Mr. Payne on a street in New Haven. There was some type of exchange with another group of individuals, where Mr. Payne was confronted with another individual. Mr. McClendon and Mr. Lacks were standing adjacent to Mr. Payne, purportedly — by eyewitnesses in the trial — as lookouts for Mr. Payne. The shot was fired from the direction of Mr. Payne.
It struck an individual. The bullet passed through that individual's arm and shoulder into a second, from the direction of Mr. Payne. It struck an individual. The bullet passed through that individual's arm and shoulder into a second individual who, as a result of being struck by the bullet, died. It may have been one individual, but I do recall a person expiring from the bullet that passed through the arm and shoulder.
Mr. McClendon is purported to have said something to the effect of, hurry up; hurry up, at the time of the incident.
Notably, at the time of Mr. McClendon's apprehension, he was attempting to jump out of a building, whereupon he was met by police officers. He was leaving a premises where they found Mr. Lacks, and it was clear from testimony at trial that Mr. Lacks, Mr. Payne, and Mr. McClendon had all been together for a good part of the day, indeed present at the time and location of the shooting.
The Court noted the defense theory that the defendant might be viewed as having a lesser role inasmuch as he was not identified as the shooter. And the Court finds that Mr. Dakers in conducting his pretrial preparation evaluated the strengths and weakness of the state's case and also the effect, if any, on — of other witnesses.
With regard to the options which the petitioner faced, contrary to certain instances that I have heard in this court on other matters, this defense attorney, Mr. Dakers, was unequivocal that he recommended accepting the twenty-five-year sentence. A lawyer of his expertise would be expected to make a recommendation in light of evaluating the evidence, so this Court finds no deficient performance in discussing the petitioner's options.
The Court believes that the petitioner was confused at some point during jury deliberations, his testimony that he was offered or he understood an offer of twenty years to serve after fifteen is not supported by any evidence in the record by the state's representatives, Mr. Pepper or Mr. O'Brien. Mr. O'Brien was the attorney at the time of trial, and he stated unequivocally that no offer was ever made coming off the mandatory minimum felony murder.
The Court does not doubt that the petitioner may have wanted a twenty-year sentence or something less, but as the parties are aware, it is the state and the prosecution who controls the charges in terms of mandatory minimums. It wasn't for Mr. Dakers to design the — a particular plea, and there's no credible evidence from the record that any plea was offered to the defendant which would constitute something less than twenty-five years to serve.
II
The Court accredits the testimony of Mr. O'Brien who, in fact, recalled that Mr. Dakers did try to persuade the state to come off the twenty-five-year sentence, including when the case was at trial and in a court break when the jury was deliberating.
The Court accredits the testimony of Mr. O'Brien that he was approached by Mr. Dakers again to attempt to have the state come off that twenty-five year mandatory minimum. At that point, Mr. O'Brien said it was in the hands of the jury, and negotiations had ceased.
The Court also notes — as was noted in the sentencing comments by Judge Licari — that at the time of his trial, Mr. McClendon had some familiarity with the court system, having been convicted of at least a robbery charge and possibly a possession with intent and had, thus, some familiarity with the court process by virtue of convictions that are apparent in the record.
With regard to the allegation in 6, defense counsel failed to convey to the prosecution that the respondent would accept a sentence of twenty years for a plea to the charge of robbery, this Court does not find this allegation to have been proven. Once more, even if this were proven, there's no prejudice inasmuch as the state never considered any offer under twenty-five years. The Court accredits the testimony of the attorney witnesses in this regard.
With regard to the allegation in Paragraph 7, defense counsel failed to conduct any investigation; this Court finds that allegation to be unproven, understanding counsel's role at the time he received the assignment. It was for pretrial negotiation. It was for trial purposes. Indeed, Attorney Bakers reviewed the transcript of the Diaz testimony and his file prior to proceeding to trial.
Under the case of Holley v. Commissioner, petitioner has not shown had the attorney conducted investigation whether or what fruit that investigation would have had to likely change the outcome. This Court will not grant relief under these circumstances.
With regard to Sub-allegation in Paragraph 8, defense counsel failed to interview the eyewitness, Mr. Diaz, to investigate his claims, and to subpoena him to testify at trial; that allegation encompasses a number of claims.
The Court finds that Mr. Dakers did not personally interview Mr. Diaz, nor was he required to do the same. However, this Court does find that he investigated Mr. Diaz's claims, and he did this by virtue of reviewing the statement which is in evidence which was provided, as I said, by Mr. Pepper; and that is Petitioner's 1. That was the statement of Mr. Diaz. Upon reading it, Mr. Dakers appreciated how the substance of the statement was inconsistent with the defense theory.
The Court has already noted that I accredit the testimony of Mr. McClendon that Mr. Dakers did discuss what impact Diaz would have on the case; that Mr. McClendon wanted to call Diaz as a witness; and that Mr. Diaz was not called as a witness. Mr. McClendon credibly testified that Mr. Dakers told him, McClendon, it would not be wise to call him. They discussed it.
Decisions to call witnesses are specifically of a tactical nature, and here, not only did Mr. Dakers have the benefit of the statement, as was stated repeatedly, he had the benefit of the trial testimony of Mr. Diaz in the matter of State v. Payne.
This Court cannot find any deficient performance in a trial attorney's tactical decision that it would be unwise to call Mr. Diaz in light of the defense strategy. Calling Mr. Diaz could under these circumstances potentially cast blame to Mr. McClendon as a principal versus accessory or co-accused in this felony murder situation.
And the Court will not speculate as to what evidence Mr. Diaz would have provided had the attorney specifically talked to Mr. Diaz. Even assuming arguendo that Mr. Diaz might have pointed the finger of blame to a third individual, perhaps Mr. Lacks, that statement would make Mr. Diaz's testimony no more credible given aspects of impeachment and unreliability that were brought out in the matter of State v. Payne.
In review of the proceedings, the Court noted Mr. Diaz's familiarity with Mr. Payne through Mr. Diaz's stepfather, his drug use, his having pending charges, and a purported conversation that may have even occurred, I believe, between Mr. Payne and Mr. Diaz sometime prior to Mr. Payne's trial.
So the Court finds no deficient performance in Mr. Dakers' admitted act of not calling Mr. Diaz and not personally speaking to Mr. Diaz. The attorney was within his professional judgment to rely upon a statement taken by an investigator, albeit in another prosecution related to the Payne case and also the testimony of another court proceeding of a co-accused.
There was no independent duty of the attorney to seek this witness out to personally interview him, to show him a photo array, or attempt to develop some helpful evidence where the essence of Mr. Diaz's testimony was completely contradictory to the defense strategy. There being no meaningful purpose in calling Mr. Diaz as a witness, the attorney was not under any duty to subpoena Mr. Diaz to testify or compel his testimony at trial.
This Court does not find that counsel committed error or omissions that were reasonably probable to render a different outcome by this jury given the overwhelming evidence of guilt as set forth in the recitation of facts in the Appellate Court case of State v. McClendon.
As I said, this Court summarized those facts at length at Pages 504 and 505 of State v. McClendon, 56 Conn.App. 500, a 2000 case. The Court need not repeat those.
Here, the claim is very narrow. Mention was also made about a witness, a Ms. Candeloria. The evidence is clear that Kimberly Candeloria was called at trial, and although there is a claim that counsel failed to call witnesses or investigate this matter, there is no indication or evidence before this Court as to what substance any other witness may have offered in the way of exculpatory information to change the outcome.
The Court finds that Mr. Dakers' representation did not fall below the reasonable competence expected of a criminal defense attorney. There being no deficient performance, the Court does not reach any issue of prejudice.
I do want to thank counsel. I want to thank Mr. McClendon. With that, the foregoing petition for writ of habeas corpus is denied. Judgment shall enter in favor of the respondent.
The petitioner is ordered to prepare a judgment file within thirty days.
I am requesting that the Marshal with the clerk's assistance hand counsel for the petitioner his notice of appeal rights. And the record shall reflect the Marshal is doing as much at this time.
In addition, I am requesting a transcript of this on-bench ruling be prepared for my signature, and it shall become a part of the record and be captioned oral memorandum of decision.
With that, this matter is concluded. We will stand adjourned until 10 a.m. tomorrow morning.