Opinion
No. CV 99-0426435 S
September 25, 2008
MEMORANDUM OF DECISION
In this third amended habeas corpus petition, ineffective assistance of counsel allegations are directed at trial counsel, appellate counsel, previous habeas counsel, and habeas appellate counsel.
The petitioner was convicted after a jury trial of possession of narcotics with intent to sell and conspiracy to sell narcotics. He was sentenced on March 12, 1993 to a total effective sentence of 17 years, executions suspended after 13 years and 5 years on probation.
The convictions were affirmed in State v. Troy Mozell, 36 Conn.App. 672 (1995). A habeas corpus petition directed at his appellate counsel was denied and that result was affirmed on appeal. ( Mozell v. Commissioner of Correction, 51 Conn.App. 518 (1999). Both trial and appellate counsel in that round are the targets of this case.
STANDARD OF REVIEW
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.
Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims:
"The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn.App. 674, 678, 564 A.2d 303 (1989). He must also show "that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial." Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge. ( Strickland, supra).
With respect to appellate counsel, our Supreme Court has recently revised the standard for claims of ineffective assistance. In Small v. Commissioner, 286 Conn. 707 (2008), the court stated the new standard to require a petitioner to show a reasonable probability that he would have prevailed on the direct appeal but for appellate counsel's error. Id., at 720-22.
Unaffected by this decision is the burden of the petitioner to demonstrate that the issue not raised has merit. Counsel's failure to pursue meritless claims are not considered conduct falling below the level of competent representation as defined by our courts. Sekow v. Warden, 216 Conn. 678, 690 (1990); Mozell v. Commissioner, 51 Conn.App. 818, 820-21 (1999).
The petitioner's claims must be evaluated in light of these standards.
DISCUSSION
It is noted at the outset that the court read the complete trial transcript so that the claims directed at criminal trial counsel were examined in detail.
The court finds no "failure to take adequate action under these circumstances" (Petitioner's Brief, page 28) and rejects the claim against trial counsel.
The fact that counsel's motion to sever was denied and that the jury was not swayed by the rebuttal to Sgt. Kendall's testimony does not indicate ineffective assistance of counsel.
In the habeas trial before this court, counsel testified as to her preparation for trial. This included visits to a surveillance site so that police testimony could be evaluated. Counsel and counsel for a co-defendant had agreed on a division of the trial phrase so that duplication of testimony could be avoided.
The court's reading of the trial transcripts compels the conclusion that the state's witnesses were effectively cross examined. Unfortunately for the petitioner, the state had a strong case and little could be done to weaken it. In particular, repeated questioning of Millicent Parker and Sergeant Kendall would have produced nothing of value and probably would have irritated the jury. Ms. Parker admitted she was looking for consideration from the state for her testimony against the petitioner so her interest or potential bias was explored.
II
The petitioner's claim as to the appellate counsel who appealed his convictions deals with counsel's failure to petition the Supreme Court after the Appellate Court affirmed the conviction.
At issue was the trial court ruling which allowed a handgun to be introduced into evidence.
The Appellate Court, found that the trial court had committed error but deemed it to be harmless. Appellate Counsel did not file for certification to the Supreme Court, feeling it did not merit review. State v. Troy Mozell, 36 Conn.App. 678 (1995).
The court is inclined to agree. It was an evidentiary claim lacking constitutional status. While the petitioner cites State v. Girolamo, 197 Conn. 201 (1985) to support his claim, the major similarity to this case is that it also involved a handgun. In that case, the charge against the defendant was theft of a firearm and the total effect of the weapon evidence was to depict him as a violent person.
Here the jury knew the gun belonged to one Ernest Williams and it was never claimed or shown to have been in the petitioner's possession. And, of significance here is the fact that the petitioner has not met his burden to show that the disputed evidence harmed him. This was not a "close call" — the case against him was strong.
The respondent also points out that this identical claim against appellate counsel was made by Dana Mozell, the petitioner's brother and co-defendant in the criminal trial. It was rejected by the habeas court and affirmed on appeal in Dana Mozell v. Commissioner, 87 Conn.App. 560, 565, cert. denied 273 Conn. 934 (2005).
The petitioner also argues that appellate counsel has a duty to preserve the petitioner's right to "federal review" and, routinely petitioner for certification, thus ignoring the requirements set out in our Practice Book at § 81-2.
This proposal is totally unsupported by case law and borders on the unethical in that it creates an additional level of review never contemplated for the dual federal and state systems and suggests that applications for certification be filed even if they lack merit.
III
The discussion above is also dispositive of the claim against habeas counsel. He too considered the gun issue and felt it would go nowhere in the Supreme Court in light of the Appellate Court's determination that it was harmless error.
IV
The claim involving the harmless error committed when the gun was admitted at trial is repeated in the count addressing habeas appellate counsel's performance.
As discussed above, there is no merit to this claim. In fact, it was not made in the habeas petition so appellate counsel had no basis to include it in the habeas appeal. Counsel's decision not to apply for certification was a logical one in view of the decision on the direct appeal. Again, the prior discussion compels the conclusion that it was not ineffective representation merely because of its purported effect on further litigation in the federal system.
The court permitted the petitioner to insert into the habeas trial the claim that counsel "failed to brief properly the issues in the appeal." Little elaboration was provided, but the court notes that counsel is not obligated to brief every possible issue. In fact, that is considered a poor appellate technique. And, counsel testified she briefed the issues that were considered to be viable ones for the appeal.
The sole issue presented to this court as an unpreserved claim involved trial counsel's unsuccessful attempt to sever the trials of the petitioner and his co-defendant, his brother. Trial counsel had a heavy burden to sustain in her attempt since there was no way counsel could argue her client suffered a "substantial injustice."
The motion was based on the claim that a witness implicated the petitioner but not his codefendant. (Transcript, January 28, 1993, pages 645 et seq.). The test outlined in State v. Booth, 250 Conn. 611, 620 (1999) would appear to be dispositive of this issue:
[W]hether to consolidate or sever the trials of defendants involved in the same criminal incident lies within the sound discretion of the trial court . . . Ordinarily justice is better subserved where parties are tried together . . . Joint trials of persons jointly indicted or informed against are the rule, and separate trials the exception resting in the discretion of the court. A separate trial will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused . . . [T]he phrase prejudicial to the rights of the [accused] means something more than that a joint trial will probably be less advantageous to the accused than separate trials. (Citations omitted; internal quotation marks omitted.) State v. White, 229 Conn. 125, 158-59, 640 A.2d 572 (1994); accord State v. Walton, 227 Conn. 32, 56, 630 A.2d 990 (1993); State v. Smith, 201 Conn. 659, 668-69, 519 A.2d 26 (1986); see also State v. Vinal, 198 Conn. 644, 648, 504 A.2d 1364 (1986).
"The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded."
Neither appellate counsel was faced with a viable appellate issue with respect to the motion to sever.
V
The respondent has addressed additional ineffective assistance claims which were included in the habeas petition but have not been briefed, asking the court to consider them as having been abandoned.
While that request is reasonable, the court will address them. This is in part a response to the petitioner's remarks during closing argument, raising the likelihood that they will become the subject of a further habeas corpus petition if not included in this decision.
A.
Paragraph 5a of the petition refers to the trial court's failure to strike the jury panel because it was not "racially balanced."
The complete jury selection process as conducted in the court system was examined. The preparation of the jury lists and voir dire panels was explained. It was noted that a computer selects those jurors at random who are sent to a courtroom for the voir dire examination. This challenge consumed several days.
A reading of the transcripts indicates adherence to the established process and the failure of the defendants to show any constitutional invalidity.
B.
The petitioner's Paragraph 5b hardly qualifies as a valid claim. The court admitted the testimony of a detective who described his training and experience in doing filed tests for drugs and offering the results.
The basis for his testimony was solid and the objections were actually "pro forma." Failing to pursue this issue by appellate counsel reflects a responsible approach to the appeal, rather than a "waste basket" approach which usually produces court denials.
C.
In his paragraph 5c, the petitioner questions the trial court ruling that allowed testimony identifying him as a member of a drug dealing street gang, the "Island Brothers."
As noted by the respondent in his brief, the ruling that the evidence was relevant was within the discretion of the court. Here, in addition to the police testimony, a co-conspirator of the Mozell brothers also testified. Other persons in the area, including their uncle, Charles Mack, testified in support of the prosecution. Millicent Parker also identified the petitioner as an "Island Brother."
The evidence was clearly relevant and had it been raised in the habeas appeal, it would have been brushed aside.
D.
The petitioner also argues that habeas appellate counsel should have raised on appeal the trial court rulings dealing with the lost evidence (the narcotics seized) and the testimony of Dr. Milzoff concerning it.
Here, the court ruled that the state had successfully satisfied the tests for admissibility set forth by the Supreme Court in State v. Morales, 232 Conn. 707 (1995).
Further, the defense claimed that the narcotics were not property of the Mozell brothers.
E.
The claim that the failure of the court to strike the testimony of Charles Mack, Tenina Thompson and Millicent Parker has no merit.
The defense argued discovery rule violations in that exculpatory statements of these witnesses had not been provided in timely fashion.
The court ruled the statements were not exculpatory, nor a surprise to the defense. And, having been disclosed prior to or during trial, no Brady rule violation occurred.
The petitioner failed to demonstrate that he was prejudiced in any way by this alleged violation and counsel was not presented with a viable appellate issue.
F.
The court's reaction to the claim concerning Charles Mack shaking the petitioner's hand in court is to inquire: "So what?" The court finds no indication of prejudice to the defense and can envision no other action by the trial court which would have been appropriate. No claim of prejudice surfaces from this encounter.
G.
Finally, the petitioner argues the testimony of Nicole Lawery should not have been admitted once it was learned that her taped statement had been erased. A transcript of her statement was available and she verified its contents as accurate. Her in person testimony was brief and simple.
The court determined there was no prejudice to the defense and no case law exists which would accomplish the illogical result the petitioner urges.
CONCLUSION
The court notes a recent Appellate Court decision which would appear to substantially weaken the petitioner's claim with respect to the failure to apply for certification.
In Davis v. Commissioner, 109 Conn. 92 (2008), the court states at page 99:
Contrary to the assertion of the petitioner, Practice Book § 62-8 contains no provision requiring trial counsel, in each and every legal proceeding, to commence an appeal on behalf of a client when that client has indicated no desire to file an appeal, as in the present case. The petitioner has provided this court no authority in support of his strained reading of Practice book § 62-8, and we decline his invitation to graft onto that rule a requirement not contained therein.
The decision to appeal rests with the client, not the attorney. See Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); Johnson v. Commissioner, 218 Conn. 403, 413 n. 11, 589 A.2d 1214 (1991).
The petitioner is denied and the court finds that the petitioner enjoyed the effective assistance of counsel at every juncture of the legal journey recited above.