Opinion
No. CV06-4001394-S
August 27, 2010
MEMORANDUM OF DECISION
The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus filed on October 25, 2006. Subsequently, counsel for the petitioner amended the petition on March 29, 2010. The amended petition asserts claims in four counts, although counts one, two and three all allege ineffective assistance by trial defense counsel. Count four asserts a due process violation. The respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief. The return additionally asserts the affirmative defense of procedural default to aspects of the claim in count four. The petitioner filed a reply denying procedural default. The petitioner does not, however, assert any cause and prejudice for any purported procedural default.
The court shall address counts one, two and three together under the same rubric.
The parties appeared before this court on May 14, 2010, for a trial on the merits. The court heard testimony from former Detective Ronald Pine, Attorney Edward Murnane, and the petitioner. The parties additionally presented numerous documents into evidence. After reviewing all the evidence presented, the court concludes that the petitioner has failed to meet his burden of proof. Thus, for the reasons stated more fully below, the petition for a writ of habeas corpus is denied.
FINDINGS OF FACT
1. The petitioner was charged in a substitute information with one count of manslaughter in the first degree with a firearm as an accessory, in violation of General Statutes §§ 53a-55(a)(1), 53a-55a(a) and 53a-8, one count of conspiracy to commit murder, in violation of General Statutes §§ 53a-48(a) and 53a-54(a), and one count of commission of a Class A, B, or C felony with a firearm, in violation of General Statutes § 53-202k.
2. The petitioner was represented in the underlying criminal matter by Attorneys Gary Mastronardi and Edward Murnane.
3. According to the Appellate Court's decision on the petitioner's, then defendant's, appeal, "[t]he jury reasonably could have found the following facts. On the afternoon of November 22, 2001, David Rowley and Miriam Montanez witnessed an altercation between Curtis Easton and Aid Johnson, a cousin of the defendant. As the argument escalated, Johnson struck Easton in the head, knocking him to the ground. Easton responded by shooting Johnson. Rowley thereafter exited his vehicle, called an ambulance and attended to Johnson, who ultimately survived. Also present at the shooting was Anthony Patterson.
4. "On the evening of November 26, 2001, Rowley and Montanez were exiting a parking lot when two other vehicles blocked their vehicle. Although it was dark, Montanez recognized Patterson, Craig Holloway and `one of the [Preston] twins.' Preston exited one of the vehicles and approached, but upon seeing Montanez in the vehicle, he immediately turned around and returned to his vehicle. Montanez testified that Rowley told her that `[t]hey're trying to f___ him over with that thing with [Johnson],' which she took to mean that `they' believed Rowley `had something to do with Johnson getting shot.' Montanez never testified as to whom `they' referred. Montanez also stated that, following the Johnson shooting, Rowley's face expressed worry."
Montanez testified that Kevin Preston and Keith Preston are twins whom she cannot distinguish.
5. "Rowley and Montanez spent the next day together, returning at approximately 6 p.m. to her residence at apartment 3B in building sixteen of the Roodner Court housing complex (Roodner Court), located at 261 Ely Avenue in Norwalk. As the two exited Rowley's vehicle and headed for the apartment, the defendant approached. Montanez entered her apartment while Rowley and the defendant spoke. Their conversation lasted almost an hour. After it ended, Rowley entered the apartment and fell asleep on a couch. At 9:30 p.m., the defendant met with Patterson and Preston outside building seventeen of Roodner Court. At 10 p.m., Montanez' sister, Diana Ramos, answered a knock on the apartment door by the defendant. The defendant asked if Rowley was there and entered the apartment. He proceeded to the couch where Rowley was sleeping and punched Rowley in the chest, waking him. The defendant then told Rowley that `the cops are f___ing with your car. You've got to move your car.' The defendant then left the apartment.
6. "Minutes later, Rowley left the apartment to move his vehicle. Within seconds, gunfire reverberated throughout the complex. Montanez ran out of the apartment and down the stairs, where she found Rowley leaning against the back door of the building, which was propped open by a piece of wood. He was shot in the chest and could not speak. The police were called, and paramedics performed cardiopulmonary resuscitation on Rowley. At that time, the defendant reentered the building and asked, with a smirk on his face, `Who got shot?' Rowley was transported to Norwalk Hospital, where he was pronounced dead.
7. "Jeanine Addison, a resident of Roodner Court at the time of the shooting, testified that, while standing outside building sixteen, she heard gunshots inside the building. She then saw the defendant exit the building. She explained that, as she ran into the building, the defendant `was walking normal like nothing happened. His head was down. His hands were down. He didn't look at me.'
8. "Upon arriving at the scene, Officer Kenneth Fludd of the Norwalk police department observed two shell casings in close proximity to Rowley's body and a spent bullet on the stairs. A total of four nine millimeter cartridges were found at the crime scene. An autopsy revealed that Rowley had been shot three times, and bullet fragments were recovered from his body. James Stephenson, a firearms and tool mark examiner at the state forensic science laboratory, testified that two of the bullets were fired from the same firearm, that the bullet fragments were consistent with having been fired from the same type of firearm as those two bullets and that the four nine millimeter cartridges were fired from the same firearm. Stephenson concluded that all of the ballistics evidence indicated that one firearm was utilized in the shooting.
9. "The defendant was arrested on November 28, 2001. After the defendant signed a warning and waiver form pertaining to his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Detective Thomas Roncinske of the Norwalk police department interviewed him at approximately 10 a.m. The defendant stated that he was at Roodner Court at the time of the shooting. He stated further that he had asked Rowley to move his vehicle and `that's all he knew.'
10. "Sergeant Thomas Matera next interviewed the defendant at 2:15 p.m. The defendant again reviewed and signed a Miranda rights warning and waiver form prior to the interview. The defendant initially indicated that he had no knowledge of the shooting. As the interview progressed, however, the defendant stated that he had a conversation with Rowley at Roodner Court around 7 p.m. on the evening of the shooting and that Rowley had loaned him money to purchase marijuana. The defendant stated that he then purchased marijuana and alcohol, which he consumed with a friend at Roodner Court. He stated that, later in the evening, he went to apartment 3B in search of Rowley and told him to move his vehicle, and then left the building via the back door, which was propped open by a piece of wood. He stated that he heard gunshots after exiting the building and headed to an adjacent building, where he met with Kevin Preston (Preston) and a woman named Taisha. At that point, the interview was concluded at the defendant's request.
11. "Roncinske interviewed the defendant a third and final time on November 28, 2001, at 10 p.m. Again, the defendant signed a Miranda rights warning and waiver form prior to the interview. The defendant's story changed considerably from that which he had provided earlier in the day. At this interview, the defendant stated that he had met with Patterson and Preston at 9 p.m. on the evening of the shooting, at which point Patterson asked him if he knew where to find Rowley. The defendant stated that `there had been a problem with a narcotics transaction between Patterson and Rowley.' After telling Patterson that Rowley was in an apartment in building sixteen, the defendant stated that Patterson and Preston asked him to get Rowley out of the apartment.
12. "The defendant stated that, prior to the shooting, he saw Patterson and Preston outside the door to building sixteen. When asked what he thought they were planning to do to Rowley, the defendant replied that they `were going to f___ him up.'
13. "The defendant then told Patterson and Preston that he `would go up to building sixteen, knock on the apartment door where Rowley was, tell him the police were going to put a ticket on his car.' The defendant stated that he then did so. He stated that after exiting the apartment, he went down the stairs and saw the back door propped open by a piece of wood. Standing in the doorway were Patterson and Preston. The defendant stated that, once outside the building, he heard gunfire. The defendant stated that he spoke with Patterson on his cellular telephone following the shooting and discussed the incident. He further stated that although he had seen Patterson with guns before, he did not want that fact included in his statement." State v. Miller, 95 Conn.App. 362, 365-69, 896 A.2d 844, cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006).
14. The petitioner was sentenced to a total effective sentence of thirty years to serve, of which ten years is a mandatory minimum, and presently is in the custody of the Commissioner of Correction on said sentence.
15. On direct appeal, the petitioner raised three claims, including a claim that the trial court improperly denied his motion for a judgment of acquittal, specifically as to the charge of manslaughter in the first degree with a firearm, because there was insufficient evidence to support his conviction. The Appellate Court concluded that "[f]rom [the] facts [presented], the jury reasonably could have inferred that the defendant was not surprised when Rowley was shot. The jury was free to credit the testimony that, as gunshots rang out, the defendant simply walked away `like nothing had happened' and the testimony that he returned to the scene of the crime smirking moments later. That factual scenario, as well as his silence when Roncinske stated that `they were going to do something serious to him,' informs the jury's understanding of what the defendant meant when he stated that he knew Patterson and Preston `were going to f___ [Rowley] up.' We therefore conclude that sufficient evidence existed to support the jury's conclusion that the defendant intended to cause serious physical injury to Rowley." Id., at pg. 379.
16. Additional facts will be discussed below as necessary to address the petitioner's claims.
DISCUSSION OF LAW
As previously discussed, the claims in counts one, two and three all allege ineffective assistance of trial defense counsel. The court shall address, in seriatim fashion, the multitude of alleged deficiencies assigned to Attorney Murnane. These alleged failures are as follows: file a motion to suppress and exclude the petitioner's statements; obtain and review all relevant information contained in the state's file prior to trial and meaningfully advise the petitioner concerning the pretrial offers; conduct an investigation to adequately assess the strength of the defenses at trial; determine and appreciate the theories under which the petitioner was being prosecuted; conduct a factual investigation prior to trial; file and pursue a motion to suppress; present an affirmative defense; present insufficient offers of proof re third-party culpability, narcotics in the victim's vehicle, and the victim's drug dealing activities; investigate, discover and present evidence to contradict the state's theory of the case as presented through Jeanne (Nikki) Addison, Miriam Montanez and Diana Ramos; present testimony from the petitioner; and request jury instructions on lesser included offenses for the charge of manslaughter in the 2nd degree with a firearm and/or criminally negligent homicide.
"`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 [by establishing a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different] . . . 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.) Parrott v. Commissioner of Correction, 107 Conn.App. 234, 236, 944 A.2d 437, cert. denied, 288 Conn. 912, 954 A.2d 184 (2008). Furthermore, `[i]n a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.' (Emphasis added; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008)." Farnum v. Commissioner of Correction, 118 Conn.App. 670, 675, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).
The petitioner presented testimony from three witnesses. First, from former Detective Ronald Pine, who was the supervisor overseeing the investigation into Rowley's shooting and death. Detective Pine testified about the investigation and the events that led to the petitioner's arrest. According to Pine, the police never thought that the petitioner may have been the shooter, but that his role was luring the victim to the "killing spot." The statements from Martinez, Ramos and Deleon put the petitioner in the apartment and luring Rowley to where he was shot. Pine testified that the police had no reason to pursue an arrest warrant because they had arrested the petitioner already. After the police arrested the petitioner, he provided them with the names of others — Patterson and Preston — who were involved in the shooting and then also arrested.
Attorney Murnane testified about the representation that both he and Attorney Gary Mastronardi provided to the petitioner. Although Mastronardi filed a request for discovery and a motion to compel discovery, there were no real discovery issues, according to Murnane, because there was an open file policy in the Stamford Office of the State's Attorney. Murnane generally recalled having and reviewing a lot of police reports and statements, as well as speaking to individuals who had provided the statements. Notably, one of the petitioner's statements was provided to the Office of the State's Attorney as part of the petitioner's effort to cooperate with the prosecution. See Petitioner's Exhibits 22 and 23. According to Murnane, there were several plea offers from the state. Murnane recalled the last offer being eight years to serve, followed by eight years special parole, which Murnane conveyed to the petitioner in writing and advised him to accept. The petitioner, however, did not accept this offer.
Attorney Murnane also testified that the defense theory was that the petitioner had a legal parking spot that he intended to relinquish to Rowley, whose car was illegally parked. Murnane was relatively sure that the state would use the petitioner's statements against him at trial, although Murnane also thought the first two statements could have been helpful to the petitioner's defense theory. The helpfulness of the statements to the defense was tempered by inconsistencies and that the petitioner's story was evolving or shifting. Murnane testified that he did not file a motion to suppress the statements, however, because they could have been helpful to the defense and he did not think such a motion would be successful. The third statement, the one provided to the prosecutor, would be inadmissible as a pretrial negotiation matter. Murnane further testified that he does not usually think it advisable to request that the jury receive instructions on lesser included offenses, that he and the petitioner discussed him testifying, and that the petitioner elected not to testify because of the prior inconsistent statements.
The petitioner in his testimony indicated that he and Attorney Mastronardi met within a few weeks of the petitioner's arrest. The petitioner told his version of the events to his attorney and did not know if a private investigator was used. The petitioner acknowledged giving a statement to the prosecutor, as well as that Mastronardi conveyed an offer of eight years confinement, followed by eight years special parole. According to the petitioner, Attorney Murnane did not explain anything to him. The petitioner also testified that he did not understand accessorial liability at the time of trial and did not testify because Murnane said that he would not be testifying. On cross-examination, the petitioner conceded that it was his choice to reject the plea offer. The petitioner further acknowledged that he has two other felony convictions.
Given the evidence presented, this court can only conclude many of the allegations of deficient performance are unfounded and unsubstantiated. Thus, the court concludes that the following claims are entirely without merit: that counsel failed to obtain and review all relevant information contained in the state's file prior to trial and meaningfully advise the petitioner concerning the pretrial offers; determine and appreciate the theories under which the petitioner was being prosecuted; present an affirmative defense; present insufficient offers of proof re third-party culpability, narcotics in the victim's vehicle, and the victim's drug dealing activities; investigate, discover and present evidence to contradict the state's theory of the case as presented through Jeanine (Nikki) Addison, Miriam Montanez and Diana Ramos; conduct an investigation to adequately assess the strength of the defenses at trial; conduct a factual investigation prior to trial; and failed to present testimony from the petitioner.
As to the claims that counsel failed to file and pursue a motion to suppress, the crux of the petitioner's argument is that there was no probable cause for his arrest. "A police officer may arrest a person without a warrant when the officer has probable cause to believe that the person has committed or is committing a felony. State v. Velasco, 248 Conn. 183, 189, 728 A.2d 493 (1999). `The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a totality of circumstances test.' (Internal quotation marks omitted.) State v. Hedge, [ 59 Conn.App. 272, 278, 756 A.2d 319 (2000)]. `With respect to warrantless arrests . . . the trial court, in determining whether the arrest is supported by probable cause, is required to make a practical, nontechnical decision whether, under all the circumstances . . . there is a fair probability that the defendant had committed or was committing a felony.' (Internal quotation marks omitted.) Id. Moreover, it is also important to note that `[t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.' (Internal quotation marks omitted.) State v. Holloman, 20 Conn.App. 521, 527-28, 568 A.2d 1052, cert. denied, 214 Conn. 805, 573 A.2d 317 (1990)." State v. Thomas, CT Page 17350 98 Conn.App. 542, 554-55, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007).
Detective Pine testified that that Rowley was shot to death and, through the statements given by occupants of the apartment, it was the petitioner who had lured Rowley to the location where he was shot. The police most clearly had sufficient probable cause to arrest the petitioner, as there was a fair probability that he had committed a felony. There was a sufficient quantum of evidence to exceed the minimum threshold of mere suspicion. The petitioner has not presented a shred of evidence to this court that demonstrates he would have prevailed in a motion to suppress, especially given that a court dealing with the merits of such a motion must make a "practical, nontechnical decision whether, under all the circumstances . . . there is a fair probability that the defendant had committed or was committing a felony." State v. Hedge, supra, 59 Conn.App. 278.
The only other claim that warrants further discussion is that Attorney Murnane failed to request jury instructions on lesser included offenses for the charge of manslaughter in the 2nd degree with a firearm and/or criminally negligent homicide. "Our Supreme Court has held that `counsel's failure to request a lesser included offense instruction does not necessarily deprive a defendant of reasonably effective assistance of counsel . . . It may be sound trial strategy not to request a lesser included offense instruction, hoping that the jury will simply return a not guilty verdict.' (Citations omitted.) Fair v. Warden, 211 Conn. 398, 404, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct. 512, 107 L.Ed.2d 514 (1989). If the decision to not request a lesser included offense instruction may be part of the overall trial strategy to obtain a not guilty verdict, then clearly this decision is in the realm of strategy decisions to be made by the attorney." Reeves v. Commissioner of Correction, 119 Conn.App. 852, 862, 989 A.2d 654, cert. denied, 296 Conn. 906, 992 A.2d 1135 (2010).
Although Attorney Murnane did not explicitly testify that he employed a strategy of striving to obtain a not guilty verdict, that would be the objective of presenting a defense at trial. "The performance prong of an ineffective assistance of counsel claim `requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness.' (Internal quotation marks omitted.) McClam v. Commissioner of Correction, 98 Conn.App. 432, 436, 909 A.2d 72 (2006), cert. denied, 281 Conn. 907, A.2d (2007). `[W]e strongly presume that counsel's professional assistance was reasonable, and the petitioner has the burden to overcome the presumption that his attorney was employing sound trial strategy . . . We evaluate the conduct from trial counsel's perspective at the time . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.' (Internal quotation marks omitted.) Bova v. Commissioner of Correction, 95 Conn.App. 129, 137-38, 894 A.2d 1067, cert. denied, 278 Conn. 920, 901 A.2d 43 (2006)." Williams v. Commissioner of Correction, 100 Conn.App. 94, 102, 917 A.2d 555, cert. denied, 282 Conn. 914, 924 A.2d 140 (2007).
The petitioner here has failed to rebut the strong presumption that Attorney Murnane employed a sound strategy of accomplishing a not guilty verdict on the most serious charges and not requesting that the jury receive instructions on lesser included offenses. Furthermore, the jury concluded that the state had proven beyond a reasonable doubt all the elements of charged offenses. The evidence presented by the petitioner in this habeas corpus proceeding does not undermine the jury verdicts in any way.
The petitioner's claim in count four of the amended petition alleges a due process violation arising from the petitioner being denied his right to testify at the criminal trial. More specifically, the petitioner avers that the record is silent as to whether he waived his right to testify, that the trial court failed both to advise him of his right to testify and canvass him about his decision to forgo that right, that counsel failed to advise him of his right to testify, and that the petitioner did not know that the decision to testify or not testify was constitutionally his to make and was not counsel's choice. The petitioner asserts, therefore, that his waiver of the right to testify was not knowing, intelligent and voluntary. The respondent has raised the affirmative defense of procedural default in response to the claim in count four.
"The appropriate standard for reviewability of [a procedurally defaulted claim] . . . is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test 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 . . .
"`Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice . . . [When] no evidence [of cause and prejudice] has been provided [to the habeas court], [the reviewing] court can independently conclude that the petitioner has failed to meet the cause and prejudice test.' (Citation omitted; internal quotation marks omitted.) Council v. Commissioner of Correction, 286 Conn. 477, 489-90, 944 A.2d 340 (2008)." Anderson v. Commissioner of Correction, 114 Conn.App. 778, 787, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).
The petitioner's reply denies that procedural default applies to the claim in count four and argues that the respondent has misconstrued the factual allegations pleaded therein. Based upon this court's review of the allegations contained in count four, the court concludes that those allegations pertaining to any purported trial court failures are subject to a procedural default defense. See, e.g., Anderson v. Commissioner of Correction, supra, 114 Conn.App. 786, ("[T]he interpretation of pleadings is always a question of law for the court."), citing and quoting Lorthe v. Commissioner of Correction, 103 Conn.App. 662, 669, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). However, the very same count also includes claims of ineffective assistance by trial counsel and is not subject to procedural default. See, e.g., Johnson v. Commissioner of Correction, 285 Conn. 556, 568-70, 941 A.2d 248 (2008). The petitioner's claim in count four can, therefore, be viewed as either a hybrid claim (i.e., in part subject to procedural default and in part not subject to procedural default) or as asserting a claim that is subject to procedural default and simultaneously alleging the cause and prejudice. The court concludes that the latter view is the more appropriate.
In Ghant v. Commissioner of Correction, 255 Conn. 1, 12, 761 A.2d 740 (2000), the Supreme Court ". . . [acknowledged] that a criminal defendant's right to testify on his or her own behalf is constitutionally protected. See State v. Paradise, 213 Conn. 388, 404-05, 567 A.2d 1221 (1990). This court has rejected, however, an argument that a trial judge has `an affirmative duty to canvass the defendant to ensure that his waiver of his right to testify is knowing, voluntary, and intelligent.' Id. . . . Therefore, the trial court's failure to establish that the petitioner's waiver of his right to testify was knowing, intelligent and voluntary does not constitute a nonfrivolous ground for appeal." (Footnote omitted.)
State v. Paradise, 213 Conn. 388, 400, 567 A.2d 1221 (1990), was overruled in part on other grounds by State v. Skakel, 276 Conn. 633, 693, 888 A.2d 985, cert. denied, U.S. 127 S.Ct. 578, 166 L.Ed.2d 428 (2006).
Thus, the only nonfrivolous claim in count four is that counsel failed to advise the petitioner of his right to testify or somehow overrode the petitioner's right to testify in his own defense. There is, simply put, no credible evidence in support of this claim. Attorney Murnane credibly testified that he and the petitioner discussed him testifying at the criminal trial, and that the petitioner elected not to testify because of the prior inconsistent statements. The court does not find credible the petitioner's testimony that he did not testify because Murnane said that he would not be testifying. The court concludes that the claim in count four is without merit.
Based on the foregoing, judgment shall enter denying the claims asserted in the amended petition for a writ of habeas corpus and dismissing said petition. Petitioner's counsel shall prepare and file the judgment file within thirty days.