Opinion
No. CV03-0004236
June 8, 2005
MEMORANDUM OF DECISION
The petitioner, Ricardo Pereira alleges in his petition for a Writ of Habeas Corpus initially filed on November 13, 2003 and amended on February 22, 2005, that his 2000 convictions for one count of murder in violation of CGS § 53a-54a, and one count of kidnapping in violation of CGS § 53a-92(a)(2)(a) were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of the effective assistance of trial defense counsel.
There was a second count alleging that the petitioner was denied his right to counsel in the taking of a statement. This issue was litigated at the petitioner's criminal trial and decided adversely to him. The criminal trial court's decision was affirmed on appeal by the Appellate Court, see State v. Pereira, 72 Conn.App. 545 (2002). On March 29, 2005, the Respondent filed a motion to dismiss this count on the ground that the issue was now res judicata. This court granted that motion at the outset of the habeas trial on May 20, 2005. The gravamen of the remaining count is that his trial defense counsel was ineffective in not presenting the testimony of the petitioner's mother and sister at the hearing on the motion to suppress the petitioner's statement.
This matter came on for trial before this Court on May 20, 2005 at which time testimony was received from the petitioner, his mother, Maria Pereira and sister, Jennifer Pereira. The transcript of the petitioner's trial was also received into evidence. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of New Britain, under Docket Number CR97-00009111 entitled State v. Pereira. The petitioner was convicted of one count of murder in violation of CGS § 53a-54a and one count of kidnapping in violation of CGS § 53a-92(a)(2)(a) on March 15, 2000.
2. Attorney Gerald Bodell represented the petitioner throughout that proceeding.
Regrettably, Attorney Bodell has had some serious medical issues in the months preceding this habeas trial and was therefore unavailable to be called as a witness in the habeas trial.
3. The jury reasonably could have found the following facts to be true regarding the underlying offenses. "At the time of the incident giving rise to his convictions, the defendant was distraught because his former girlfriend had terminated their relationship. The defendant `still wanted to be with [her, but] she didn't want anything to do with [him].' In the wake of this loss, the defendant spent a great deal of his free time at William MacLellan's small basement apartment in Waterbury. Through MacLellan, the defendant met the victim, Lisa Orgnon, in October 1997. Over the course of approximately one month, the defendant and the victim socialized at drinking establishments in the Waterbury area `a couple of times.' The victim, MacLellan and the defendant planned to spend the evening of November 18, 1997, together.
4. "At roughly 9 p.m. on the evening of the incident, the victim, MacLellan, and the defendant walked from MacLellan's apartment to `Champs Cafe.' They shared four pitchers of beer, `did some shots of Goldschlager' and played billiards until the staff closed the establishment for the evening at roughly 11:30 p.m. The three then returned on foot to MacLellan's apartment, where they conversed briefly and decided to go to another drinking establishment, `MacFairlawns Tavern,' before retiring for the evening. The victim agreed to drive them to MacFairlawn's in her white Pontiac Sunbird.
5. "At MacFairlawns, MacLellan and the victim continued to play billiards and the defendant ordered another pitcher of Heineken beer and `stayed at the bar and talked to the bartender.' The three left the bar together at closing time and drove back to MacLellan's apartment. At this point, MacLellan decided to turn in for the evening. The defendant asked the victim to accompany him to a movie theater that he used to frequent near his former girlfriend's Southington home. The defendant `knew [the theater] was closed' before he suggested the excursion. The victim drove the defendant to the theater at 2 a.m., at which time she learned that the theater was closed while the defendant feigned surprise. The defendant then told the victim to `drive around' and, keeping their destination a secret, directed her to an area of Southington which he knew to be his former girlfriend's neighborhood. He did not inform the victim that his former girlfriend lived in the area. Moments later, they were driving down the defendant's former girlfriend's residential street. As they passed by her house, the defendant reached across the victim's seat and hit her steering wheel as she was trying to drive, blasting the vehicle's horn in order to disturb his ex-girlfriend's household after 2 a.m. The defendant then ordered the victim to stop the vehicle on an adjoining street, Autran Avenue.
6. "Although the reasons are unclear, the defendant suddenly `got real mad' at some point after the vehicle halted. In the defendant's own words: `You know, I just — I just lost control. And I just began, I began to swing at her.' `I don't know why but I started punching Lisa in her face and head even though she had done nothing wrong. I punched her four or five times.' `She just tried to get away.' The defendant punched the victim with such force that days later, he had abrasions on his knuckles, which he explained to a nurse were `from punching.' As the victim attempted to `get away' from the defendant's unprovoked assault, the defendant grabbed her by the neck and began to strangle her. The defendant choked the victim, crushing her voice box and hemorrhaging the strap muscles in her neck. The defendant strangled the victim with such force that the whites of her eyes turned blood red from petechial hemorrhaging of the capillaries in her conjunctiva. The victim buried her fingernails into the defendant. Forensic analysis later revealed that nine of her ten fingernails had drawn blood in the melee. The defendant sustained scratches on his face and neck, and all over his back and shoulders. Stymied by the victim's effective counter-attack, the defendant lost his grip on the victim's neck. She opened the door and began to spill out, head first, onto the street. The defendant clutched and swiped at her in a futile effort to regain dominance, but the victim kicked at him, checking his renewed assault. The victim broke free and sprinted down the road, away from defendant. The defendant jumped into the driver's seat and gunned the engine, aiming the vehicle at the victim.
7. "The defendant slammed the car into the victim. The front bumper shattered her right leg at a point nine inches from her heel. Expert forensic evidence introduced at trial indicated that this was `a fairly typical pedestrian type [of] injury, where the bumper would strike the lower leg . . .' The vehicle's right front wheel ran over the victim and her body smashed into the undercarriage. The defendant continued to run over the victim and felt the rear transaxle vault over her body. The defendant later stated that he `wasn't sure' whether he put the car in reverse to run her over again. The street was littered with blood in a long trail resulting from how he, in his own words, `dragged her up the road.'
8. "In addition to the injuries from the previous punching and strangling, the vehicle mangled and crushed the victim's body. Evidence introduced at trial established that the victim sustained multiple blunt force trauma to her head and face, including a large and deep L-shaped laceration to her entire right cheek, and another laceration above her right eye. Her nose was scored and abraded, her lips and right forehead were bruised, and the entire left side of her face, from her chin to her ear, was scraped deep purple. Two major lacerations split the back of the victims head, straight through to her skull. A mass of blood pooled at the back of the victim's head, between her skull and scalp. Inside, a film of blood covered the victim's brain, which had suffered heavy bruising. In addition to the injuries to the victim's neck due to strangulation, the vehicle caused linear abrasions to her neck. The victim suffered extensive blunt force trauma to her chest. Her rib cage was crushed, with fractures at the front and back. Both of her lungs were severely bruised in the process, filling with almost a pint of blood. Lower in the victim's abdomen, her liver was `essentially torn in half.'
9. "The defendant then stopped the car, stepped out and approached the victim's body. In his own words, the defendant `kicked the victim in the head and neck five or six more times' until she `wasn't moving at all' any more. Finally satisfied that he had killed the victim, the defendant dragged her body out of sight, hiding it in some `icy brush' over a ridge at the side of the road. The defendant drove the victim's car back to his home town of Waterbury and dumped it in a church parking lot. He walked the rest of the way home.
10. "The victim, Lisa Orgnon, died in the early morning of November 19, 1997. The medical examiner certified the cause of death to be `multiple blunt force trauma of the head and chest.' The medical examiner found no sign of any natural cause that would otherwise account for her death.
11. "It was life as usual for the defendant that day. He awoke at the ordinary time and arrived at the site of his job with his father's construction company. However, after the victim's mother reported the victim missing, the Naugatuck police interrupted the defendant's schedule, asking him for information. The defendant initially denied ever being with the victim in Southington, telling the police that the victim `drove [him] directly home' after dropping MacLellan at his house. After the body was found, however, the defendant admitted that he had, in fact, killed her."
State v. Pereira, 72 Conn.App. 545 (2002).
12. The petitioner, his mother and his sister all went to the police station where the petitioner was to be interviewed. Upon arrival at the station, the petitioner and his mother and sister were placed in separate rooms. Just before they parted, the petitioner asked his sister to call his uncle and arrange for a lawyer for him.
13. In its decision, the Appellate Court found that the record of the proceedings at the suppression hearing supported that "the defendant had been given Miranda warnings orally and in writing several times. He stated repeatedly that he understood these rights and was willing to make the written statement anyway. He signed and dated two written documents indicating his willingness to cede these rights and initialed in the margin after the written description of each right waived. In all, he signed or initialed the statement itself fourteen times. He was literate. He had attained a high school diploma and had completed some collegiate course work. He read a full paragraph of the written statement aloud to the police by which they determined his literacy. The defendant was calm during questioning, showing no signs of emotional distress. The defendant had no clinical history of mental disease or retardation. He came into the police station voluntarily with a parent and confessed orally to killing the victim before he was in custody, within a half an hour to forty-five minutes of arriving at the station. He did not arrive at the station until almost 6 p.m. There was no evidence of any threat, promise or physical coercion of him prompting any such inculpatory statement. The defendant . . . was detained for roughly three hours during the process of giving the statement, and there was no evidence that he ate or drank during that period."
State v. Pereira, 72 Conn.App. 545, at 580 (2002).
14. The trial court, Espinosa, J. denied the motion to suppress and permitted the statement to be used at the petitioner's trial.
15. Following a trial of the case to a jury, the petitioner was convicted and was thereafter sentenced by the Court, Espinosa, J. to an effective term of confinement of seventy-five years on May 15, 2000.
16. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's trial defense counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. It is indisputable fact that many times if one had foreknowledge of certain events, different courses might well have been taken. Likewise, a habeas court knowing the outcome of the trial "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
In the instant case, the petitioner has accused his trial defense counsel of ineffective representation because he failed to introduce the testimony of the petitioner's mother and sister at the hearing on the motion to suppress. The petitioner did have these witnesses testify before the habeas court to provide this court with evidence of what was missing from the evidence presented before Judge Espinosa at the Suppression hearing.
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984). Justifiably, then the burden of persuasion in a habeas case rests with the petitioner because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, 229 Conn. 397 at 419 (1994). There is, therefore, a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
Moreover it is not even necessary to consider whether a trial counsel's performance was deficient if the habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[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')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It may be arguable as to whether Attorney Bodell should have used these two witnesses. Perhaps the failure to call them at the suppression hearing could be called deficient performance. Notwithstanding, it is clear to this habeas court that even had he so done and the two witnesses testified precisely in the same manner before Judge Espinosa, the result of the suppression hearing would have been the same. The evidence is overwhelming that even if the petitioner wished to be represented by counsel while being questioned by the police, this fact was never communicated to the officers. Moreover, the petitioner clearly and unequivocally waived his rights to counsel several times before giving the statement. The addition of facts that would support a desire for representation, unexpressed to the police but communicated in secret to his sister, would not have changed the reasoning used by Judge Espinosa or the Appellate Court. Consequently, the petitioner has clearly failed to demonstrate any prejudice from the failure of Attorney Bodell to present the testimony of the mother and sister.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge