Opinion
No. CV 01 0814190 S
June 30, 2004
MEMORANDUM OF DECISION
The petitioner in the above-captioned matter, Reginald Reese, filed a two-count amended petition for a writ of habeas corpus, dated January 5, 2003, which claims in count one that his criminal trial counsel represented him ineffectively and claims in count two that he is actually innocent of the crimes for which he was convicted. In its Return, dated July 16, 2003, the respondent denies the petitioner's allegations. The petition was tried to this court on various dates in March 2004 and the parties later submitted post-trial briefs in support of their respective positions. The court, after having reviewed the habeas trial evidence, considered the parties' arguments and applied the requisite legal standards, dismisses the amended petition for the reasons outlined below.
The petitioner's counsel orally amended the January 5, 2003 date of the amended petition to January 5, 2004.
The petitioner makes the following allegations of ineffective assistance in count one of his amended petition: that counsel failed to file a motion to suppress the statements of Elliot Walker, John Weaver and James Lindsay, all of whom testified at the petitioner's hearing in probable cause; that counsel failed to call Jermaine Gray to testify at the petitioner's probable cause hearing that it was Jermaine Reese who actually shot the victim; that trial counsel failed to move for a bill of particulars after the hearing in probable cause and before the trial; that counsel failed to move for a continuance just prior to the start of jury selection when the first defense investigator was replaced by a second defense investigator; that prior to trial counsel failed to give or show the petitioner the police reports and witness statements; that counsel failed to call the following three witnesses who would have testified favorably for the defense at trial: Gray, Travis Sattawhite and Roberta Fernandez; that counsel failed to call Det. Richard Garcia as a defense witness or cross-examine him for the purpose of showing that Jermaine Reese killed the victim instead of the petitioner; that counsel failed to call Inspector Paul Lengyel as a defense witness to testify about a written statement he took from Sattawhite in which Sattawhite identified Jermaine Reese as the shooter; and that counsel failed to counter witness testimony that the shooter was right-handed by calling the petitioner's former teacher or a handwriting expert to prove that the defendant is left-handed.
In the petitioner's brief, he claims that trial counsel rendered him ineffective assistance and that he is actually innocent in ways which are not specified in his amended petition. "In a writ of habeas corpus alleging illegal confinement the application must set forth specific grounds for the issuance of the writ including the basis for the claim of illegal confinement . . . The petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised." (Citations omitted; internal quotation marks omitted.) Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 406, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999); see also Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774 A.2d 148 (2001). This court is, therefore, without authority to grant a writ of habeas corpus based on specifications of ineffective assistance or claims of actual innocence which are not outlined in the amended petition. By way of an alternative ruling, however, the court will address those claims.
The petitioner alleges that Kenyatta Davis and Desmond Hamilton (also known as Desmond Howard) were each present at the scene of the crime and witnessed the events surrounding the shooting. The court notes that neither one testified at the habeas trial. The court further notes that the amended petition suggests that these witnesses would support the claim of actual innocence, but does not claim that Bodell rendered ineffective assistance by failing to call either Davis or Hamilton as criminal trial witnesses.
I FACTS A
The petitioner was charged in a substitute information with the crimes of murder, assault in the first degree and assault in the third degree. The case was tried to the jury before the court, Hauser, J., and the petitioner was convicted of murder and first degree assault, but acquitted of assault in the third degree. The conviction was affirmed in State v. Reese, 77 Conn. App. 153, cert. denied, 265 Conn. 910 (2003). The Appellate Court indicated that the jury could have reasonably found the following facts. "On August, 10, 1998, at approximately 2:35 p.m., at the courthouse on Golden Hill Street in Bridgeport, Sheriff William Harrell was standing outside on a break from work. Informed by an unknown male that a fracas was taking place in front of the courthouse, Harrell walked to the sidewalk area of the parking lot and looked around the corner. He saw a group of six or seven black males involved in a fight in the middle of the street directly in front of the courthouse steps. As he proceeded to the area of the fight, hearing a gunshot, he dove to the ground and then heard five or six more gunshots. Approximately thirty seconds later, he looked to the area of the fight and saw that the group was dispersing. He also saw one male lying on the ground. Harrell was unable to identify any of the males involved in the altercation.
Brian Steskla, an off-duty employee of the department of correction, was seated in his car parked diagonally across the street from the front of the courthouse. He heard a commotion coming from the front of the courthouse, looked over his left shoulder and saw a group of nine or ten people. He observed that five or six people were kicking one male. He diverted his gaze to turn off his car engine and at that moment he heard three or four gunshots. Looking back at the group, he saw one male standing over the victim with a gun in his right hand Although he could not see the gunman well enough to identify him, he noted that he was a black male, with facial hair in the sideburn area and short dreadlocks. Steskla did not see that person actually fire the gun. The victim, Donte Jones, was found to have two gunshot entry wounds to his left shoulder area and two exit wounds on the front side of his body. Those injuries were fatal.
Following the initial police investigation, Jermaine Reese, Mark Montgomery, John Weaver and Elliot Walker were charged in the incident. The state prosecuted Jermaine Reese, the [petitioner]'s cousin, as a principal and the sole shooter of the victim. Jermaine Reese was acquitted of all charges following a jury trial (Reese trial).
In August 1999, after the Reese trial, the state police took a written statement from James Lindsay that implicated the [petitioner] as the person who had shot Jones. In March 2000, Walker gave a written statement to the state police, also implicating the [petitioner] as the shooter.
Thereafter, the [petitioner] was arrested and charged with murder in violation of § 53a-54a(a), assault in the first degree in violation of General Statutes § 53a-59(a)(5), two counts of using a firearm in the commission of a class A or B felony in violation of General Statutes § 53-202k, assault in the third degree in violation of General Statutes § 53a-61(a)(1), and conspiracy to commit murder and assault in the first degree. At trial, the state filed a substitute information charging the [petitioner] with murder, assault in the first degree and assault in the third degree.
In addition to the testimony of Steskla and Harrell, the state called Walker, who testified that on August 10, 1998, he went to the courthouse where, he saw Jermaine Reese, the [petitioner], Montgomery, Weaver and others, all individuals he knew. He saw Jones exit the courthouse and walk down the stairs, and he saw Weaver grab him. He observed Weaver drag Jones, the victim, down the steps, then pull him into the street where Weaver and Jermaine Reese punched and kicked Jones. Walker then saw Tyrone Allen retrieve a silver gun from a car and hand it to the [petitioner]. At that point, Walker testified, he began to walk away and then he heard gunshots, but did not see who fired the gun.
Weaver testified that on the day of the incident, he went to the courthouse where he saw the [petitioner], Jermaine Reese, Walker, Jermaine Gray and others outside near the steps. He recalled that Jones attacked somebody and that everyone then started fighting. He acknowledged that he joined in. As Weaver ran from the scene, believing the sheriffs were on their way, he heard gunshots. Turning, he saw the [petitioner] shooting the victim.
The [petitioner] called Allen, who testified that the [petitioner] had not been at the courthouse on the day in question, thus disputing Walker's testimony concerning his presence at the scene. Andrew Urbanovsky, a sheriff at the courthouse, testified that he did not recall seeing the [petitioner] at the courthouse on the day in question. The [petitioner] recalled Steskla, who testified that the gun was black and not silver, as claimed by Walker. Barrington Erskine, a witness to the altercation, testified that he did not see the [petitioner] at the courthouse or participating in the fight." Id., 155.
B
Based on the credible evidence offered at the habeas trial, the court finds the following facts. Attorney Gerald Bodell was appointed as a special public defender to represent the petitioner in early October of 1999. At the time of this appointment, Bodell was an experienced criminal law practitioner who had tried numerous murder cases to verdict and litigated many civil and criminal appeals. After filing his appearance, Bodell met with the petitioner on several occasions while the latter was incarcerated pending trial. At these meetings, the two reviewed the evidence, the nature of the charges, the potential defenses and the range of penalties in the event of a conviction. In preparation for trial, Bodell reviewed copies of the relevant police reports, witness statements, pleadings and transcripts from Jermaine Reese's hearing in probable cause and subsequent criminal trial. When Bodell met with the petitioner, they discussed the aforementioned materials, Bodell provided the petitioner with copies of some or all of the materials and the two developed a trial strategy. The petitioner told Bodell that the petitioner was not at the courthouse when the victim was shot and that Kimberly Baker as well as Charlatta Bland would verify that claim. In light of that information and the petitioner's statement to the police that he was not at the courthouse when the crime occurred, the petitioner and counsel jointly decided to pursue an alibi defense.
In addition to pursuing the alibi defense, counsel tried to show that the state lacked probable cause to prosecute the petitioner based on the state's unsuccessful prosecution of Jermaine Reese for the victim's murder. The petitioner's hearing in probable cause was held before the court, Comerford, J., in late October 1999. At that proceeding, the state offered testimony from Harrell, Steska and the written statement of Lindsay to establish probable cause against the petitioner. Bodell wanted to rebut the state's evidence by calling Jermaine Gray to testify, as he had during the Jermaine Reese hearing in probable cause, that Jermaine Reese shot the victim, not the petitioner. Gray was not called, however, because neither Bodell nor the state was able to find him at that time. In lieu of his live testimony, Bodell offered Gray's Jermaine Reese probable cause testimony at the petitioner's hearing in probable cause, but Judge Comerford refused to admit it into evidence and found that there was probable cause to prosecute the petitioner.
The court notes that the Appellate Court concluded that although Gray's transcript testimony conflicted with evidence that the petitioner was the shooter, it did not rebut Judge Comerford's finding of probable cause against the petitioner. See State v. Reese, supra, 158.
During the course of his pretrial preparation, Bodell hired two investigators to help him interview potential witnesses and discover helpful evidence. These investigators were Richard Fox and John McNicholas. Fox was first hired in the April of 2000 and was later replaced by McNicholas in the summer of that year, shortly before jury selection commenced. Prior to the trial, Fox interviewed the petitioner who gave him the names of potential witnesses, including Sattawhite, Kason Young, Baker, Gray and Fernandez. The petitioner also met with McNicholas before the trial and talked with him about potential witnesses. Although McNicholas joined the defense close to the start of voir dire, Bodell had the benefit of both investigators work product and was prepared to proceed. It was therefore unnecessary for Bodell to ask that the trial be delayed.
Bodell decided not to call certain potential trial witnesses because in his professional judgment, they were incredible, unreliable or their testimony would conflict with the alibi theory of defense. Counsel did not call Sattawhite as a witness because his whereabouts were unknown at the time of the petitioner's trial and he viewed Sattawhite as an unbelievable witness. Bodell also knew that Sattawhite's testimony would have placed the petitioner at the scene of the crime, contrary to the alibi defense. The court notes that Sattawhite testified at the habeas trial that he was inside the courthouse when the shooting occurred, did not see the shooter and only identified Jermaine Reese as the gunman based on what Gray had told him.
Bodell decided not call Fernandez because she was unreliable. When counsel spoke with her at or about the time of trial, she denied knowing anything about the shooting notwithstanding her oral statement to the police identifying Jermaine Reese as the perpetrator. She also was unwilling to testify for the petitioner. In addition, Bodell knew from his review of the Jermaine Reese trial transcript that Fernandez had denied having any knowledge about the shooting. At the habeas trial Fernandez admitted recanting her statement to the police and admitted being untruthful about her felony record.
Finally, Bodell did not call Gray as a witness at the petitioner's criminal trial for several reasons. First, Gray was a prison escapee at the time of the petitioner's trial and his whereabouts were unknown. He was changing residences and evading the police. Second, Gray's testimony from the Jermaine Reese trial implicated the petitioner in the crime and would have undermined the defense theory of alibi. Third, Gray's credibility was questionable because his identification of Jermaine Reese as the shooter at the latter's criminal trial had been apparently rejected by the jury in that case.
In short, Bodell did not use Sattawhite, Fernandez or Gray, all of whom were convicted felons, as witnesses at the petitioner's criminal trial because he could not locate them or he assessed them as incredible witnesses whose testimony would have harmed the defense.
Additional facts will be set forth as necessary to resolve the claims made by the petitioner.
II DISCUSSION A
The appropriate standard of review applicable to the petitioner's ineffective assistance claims is well established. "First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. 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 v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). In order to show deficient performance under the first Strickland prong, the petitioner must prove that counsel's performance "fell below an objective standard of reasonableness . . . The proper measure of attorney performance remains simply reasonableness under prevailing professional norms . . . The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised . . . The defendant is also not guaranteed assistance of an attorney who will make no mistakes." Giannotti v. Warden, 26 Conn. App. 125, 130 (1991) (citations omitted; internal quotations marks omitted).
"A fair assessment of an attorneys performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 71-72 (2001).
In order to prove prejudice under the second Strickland prong, the petitioner must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 301 (2001). Since the petitioner is required to satisfy both Strickland prongs in order to succeed, his inability to satisfy either one makes it unnecessary for the court to address the other. "A reviewing court can find against the petitioner on whichever ground is easier." State v. Silva, 65 Conn. App. 234, 259 (2001).
B
The petitioner first claims that his trial counsel performed deficiently based on his alleged failure to file a motion to suppress the hearing in probable cause testimony given by Walker, Weaver and Lindsay. Even assuming that Bodell failed to file such motion, that failure was not deficient performance for two reasons. First, General Statutes Section 54-46a(b) specifically provides that "[n]o motion to suppress . . . shall be allowed in connection with such hearing [in probable cause]." Second, the petitioner has failed to cite any authority which provides a legal basis for suppressing the testimony of hearing in probable cause witnesses. There is no merit to the petitioner's claim.
The petitioner has abandoned this claim by failing to offer any evidence to support the claim. In addition, the petitioner has abandoned the claim by failing to address it in his trial brief. Courts "are not required to review issues that have been improperly presented . . . through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . ." (Internal quotation marks omitted.) State v. Pulaski, 71 Conn. App. 497, 499 n. 4, 802 A.2d 233 (2002). In the alternative, however, the court addresses the claim and finds that it fails for the reasons stated in the text of this opinion.
The petitioner also claims that Bodell was deficient because he failed to call Jermaine Gray to testify at his hearing in probable cause to testify, as he did at Jermaine Reese's hearing in probable cause, that Jermaine Reese shot the victim to death. This claim fails because at the time of the petitioner's hearing in probable cause, neither Bodell nor the state could locate him. Further, counsel attempted to offer Gray's hearing in probable cause testimony from the Jermaine Reese trial as rebuttal evidence at the petitioner's hearing in probable cause, but Judge Comerford rejected that offer. It is significant that the Appellate Court indicated in State v. Reese, supra, that Gray's testimony would not have rebutted the trial court's finding of probable cause in any event. Id., 158. Bodell made a bona fide effort to get Gray's testimony into evidence, but was simply unsuccessful in that effort because of Gray's unavailability and the ruling of the trial court. The petitioner has failed to prove deficient performance. He has also failed to show that there is a reasonable probability that the outcome of the hearing in probable cause or the trial would have been different had Gray testified consistently with his Jermaine Reese hearing in probable cause testimony.
The amended petition asserts that trial counsel performed incompetently by failing to call Gray as a witness at the petitioner's hearing in probable cause, but the petitioner's brief fails to address this claim. The petitioner has therefore abandoned the claim. See State v. Pulaski, supra. The court rules in the alternative, however, that the claim lacks merit for the reasons outlined in the text.
The petitioner's next claim is that Bodell performed incompetently by not moving for a bill of particulars prior to trial. The court notes the following additional fact for purposes of addressing this claim. Bodell did not file a motion for a bill of particulars. The petitioner argues that had counsel sought and received a bill of particulars, the state would have been prevented from charging the petitioner as the gunman who actually shot the victim, especially since the state had in a previous criminal trial alleged that Jermaine Reese had shot him. This claim too is without merit. "The purpose of the bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise." State v. Roque, 190 Conn. 143, 156, 460 A.2d 26 (1983). Even though counsel did not seek a bill of particulars, there is no persuasive evidence that the petitioner was prevented from preparing a defense or suffered prejudicial surprise due to the absence of a bill of particulars. As early as August 1999 the petitioner was charged by way of a long form information with murder, conspiracy to commit murder and use of a firearm in the commission of an A or B felony. Given the initial charge, the petitioner cannot convincingly claim that he was not on notice or unfairly surprised by the substitute information charging murder when his trial commenced in September of 2000. The lack of surprise is even greater in light of the fact that at the October 1999 hearing in probable cause, evidence from Lindsay's statement implicated the petitioner as the sole gunman. Moreover, "[p]rosecutors . . . have a wide latitude and broad discretion in determining when, who, why and whether to prosecute for violations of the criminal law . . . This broad discretion . . . necessarily includes deciding which citizens should be prosecuted and for what charges they are to be held accountable." (Internal citations and quotation marks omitted.) State v. Kinchen, 243 Conn. 690, 699 (1998). Because Judge Comerford found that probable cause to prosecute the petitioner for the murder notwithstanding the fact that Jermaine Reese had previously been tried and acquitted for the same crime, the state was free to exercise its broad discretion to prosecute the petitioner for intentionally killing the decedent.
In addition, the court notes that the trial court instructed the jury that the petitioner could be convicted as a principal or an accessory to murder pursuant to General Statutes Section 53a-8. "Proving guilt as an accessory under § 53a-8 is an alternative way in which the state may demonstrate a defendant's liability for a criminal act . . . [l]iability does not turn on whether he was found to be a principal or an accessory . . . [a]ccordingly, a defendant who is charged with an offense should be on notice that he may be convicted as an accessory." (Internal citations and quotation marks omitted) State v. Vasquez, 68 Conn. App. 194, 215 (2002). The petitioner has never challenged the propriety of this instruction. He was therefore on notice that he could be convicted of murder as a principal or as an accessory.
The petitioner did not suffer any prejudice due to counsel's failure to move for a bill of particulars because there is no reasonable probability that the petitioner would not have been convicted of murder even if counsel had received a bill of particulars. There is no evidence that the state would have refrained from pursuing the murder charge had it been ordered to file a bill of particulars, and even if the state had filed a bill of particulars, the criminal trial evidence would have remained the same. The petitioner therefore has failed to establish the prejudice prong under Strickland and his claim must fail.
The petitioner next claims that his trial counsel was deficient in his failure to move for a continuance of the trial when McNicholas replaced Fox as the defense investigator prior to the start of jury selection. This claim is unproven. Under our law, the "right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction." Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1995); Siemon v. Stoughton, 184 Conn. 547, 556-57 n. 3, CT Page 10033 440 A.2d 210 (1981). Regardless, "counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Internal quotation marks omitted.) Ostolaza v. Warden, 26 Conn. App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). In the present case, both Fox and McNicholas interviewed the petitioner for the purpose of gathering witnesses and information to aid the defense and Bodell had the benefit of their collective work product. Bodell had also personally spoken with witnesses, reviewed police reports, transcripts and familiarized himself with written witness statements. When the work of the two investigators and Bodell are viewed in combination, it is clear that there was an adequate investigation into the facts of the petitioner's criminal matter. Bodell's representation in regard to the investigation of the facts was reasonably competent. Even assuming, however, that Bodell should have asked for and received a continuance based on the change in investigators, there is no reasonable likelihood that the outcome of the trial would have been different. Further, there is no credible evidence that McNicholas would have unearthed some exculpatory evidence had the trial been continued for some unspecified period of time. The petitioner has failed to demonstrate prejudice pursuant to the second prong of Strickland
The petitioner additionally claims that Bodell performed deficiently by failing to provide him with or show him copies of police reports and witness statements. This claim must fail because even if the court were to credit the petitioner's claim that Bodell did not physically give him the documents he complains about, Bodell clearly provided the petitioner with the information contained in those documents. The court credits Bodell's testimony that he and the petitioner met on numerous occasions prior to trial and discussed the police reports and witness statements. The court notes that the petitioner admitted that he spoke with Bodell about the factual issues in the case, was given access to witness statements and at a minimum received a copy of his hearing in probable cause transcript. Bodell performed reasonably under the prevailing professional norms for criminal law practitioners by meeting with his client and sharing with him the information he gathered through his review of the police reports, witness statements and other materials.
Moreover, even if Bodell did fail to give or to show the petitioner all of the police reports and witness statements, there is no reasonable likelihood that the trial's outcome would have been different. Counsel conducted a proper investigation of the facts and pursued a legitimate theory of defense on behalf of the petitioner. The petitioner did not suffer any prejudice on account of any failure by Bodell to give him police reports or witness statements.
The petitioner's next claim is that Bodell was incompetent by failing to call three potential trial witnesses: Sattawhite, Gray and Fernandez. He argues that each of these individuals was available to testify and would have exculpated him had he or she been called. The credible evidence belies the petitioner's claims. At the time of trial in September of 2000, counsel had no information regarding the whereabouts of Sattawhite and Gray even though he tried to locate all known witnesses through the use of his investigators and the cooperation of the state. Gray, in particular, was a prison escapee at that time, was living at various addresses and hiding from the parole authorities. Because counsel made reasonable efforts to locate Sattawhite and Gray but could not do so, he cannot be faulted for failing to call them as trial witnesses. Even if Bodell had located Sattawhite and Gray when the petitioner's trial occurred, their potential testimony would have been, in Bodell's view, inconsistent, incredible or potentially harmful to the petitioner. Sattawhite, who testified at the petitioner's habeas trial, specifically repudiated his Jermaine Reese criminal trial testimony identifying Jermaine Reese as the shooter and said that his testimony was based entirely on what Gray had told him. Bodell also did not want to call Sattawhite and Gray because their Jermaine Reese trial testimony placed the petitioner at the scene of the crime, contrary to the alibi defense. Further, the Jermaine Reese criminal trial jury had presumably rejected Gray as a credible witness when it acquitted Jermaine Reese of the murder charge, notwithstanding Gray's identification of Jermaine Reese as the gunman. Given this rejection, Bodell thought that the petitioner's jury would also reject Gray as a credible witness.
Finally, Bodell did not call Fernandez as a witness at the petitioner's trial because after reviewing her testimony at the Jermaine Reese trial and speaking with her prior to the petitioner's criminal trial, it was apparent that she would say she knew nothing about who shot the victim. In fact, at the habeas trial Fernandez acknowledged that at the Jermaine Reese trial she denied that she had identified Jermaine Reese as the shooter. Under our law, "the presentation of testimonial evidence is a matter of trial strategy . . . [t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Adorno v. Commissioner of Correction, 66 Conn. App. 179, 186 (2001). The testimony of Sattawhite, Gray and Fernandez at the petitioner's criminal trial would not have been helpful in establishing the asserted defense. Bodell's failure to call these witnesses was a matter of trial strategy and this court will not second guess that choice.
The petitioner next alleges that Bodell was deficient by failing to question Detective Richard Garcia regarding the culpability of Jermaine Reese for the murder. The court finds that Garcia, the lead state police investigator, took the petitioner's written statement in which he denied being present at the crime scene. The court further finds that Barrington Erskine, a witness who was present when the crime occurred and who knew the petitioner, testified that the petitioner was not present when the victim was beaten and shot. The petitioner's claim that Bodell should have asked Garcia about information which implicated Jermaine Reese in the shooting is without merit. "[I]t is the petitioner's burden to overcome the presumption that his attorney's actions or inactions were not, in fact, sound trial strategy . . . [the court] also must make every effort to evaluate the challenged conduct from counsel's perspective at the time." (Citations and internal quotation marks omitted.) Sloan v. Commissioner of Correction, 57 Conn. App. 304, 306-07, 748 A.2d 355 (2000). The petitioner's complaint that Bodell should have queried Garcia about the culpability of Jermaine Reese is an attack on counsel's tactical decision to focus on the alibi theory of defense. There is no credible evidence that such an inquiry would have strengthened the alibi defense or, in lieu of the alibi defense, succeeded in changing the outcome of the petitioner's trial. Counsel knew that the petitioner had told Garcia he was not present when the crime occurred and that Erskine had corroborated the petitioner's claim. Bodell also knew that Jermaine Reese had been acquitted of murdering the victim. It was a tactical choice, based on his knowledge of the petitioner's statement and Erskine's testimony, for counsel to focus on the alibi defense and eschew an attempt to blame Jermaine Reese. If Bodell had attempted to show that Jermaine Reese was the shooter, the jury might have learned that another jury had acquitted of the crime. Thus, the pursuit of a third-party culpability defense may have hurt the petitioner's defense by suggesting to the jury that the petitioner was trying to blame an innocent man in order to save himself. Bodell acted within the range of reasonable competency for a criminal law practitioner by calling and questioning witnesses, including Garcia, so as to bolster the alibi defense and avoided diluting that defense by pursuing another defense theory.
This claim fails because the petitioner has abandoned it by failing to brief it. See State v. Pulaski, supra. The court, nevertheless, rules that the claim is without merit for the reasons outlined in the text of this opinion.
Further, it is not reasonably probable that the outcome of the trial would have been different had Bodell questioned Garcia about the culpability of Jermaine Reese because the jury might have convicted the petitioner of murder as a coconspirator pursuant to the Pinkerton doctrine. "Under the Pinkerton doctrine, a conspirator may be held liable for criminal offenses committed by a coconspirator if those offenses are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy . . . Our Supreme Court adopted the Pinkerton doctrine in State v. Walton [ 227 Conn. 32 (1993)]." See State v. Liebowitz, 65 Conn. App. 788, 812, fn3 (2001). As indicated earlier, the petitioner was initially charged with conspiracy to commit murder and first degree assault, use of a firearm in the commission of an A or B felony and other crimes. Jermaine Reese, Weaver, Montgomery and other unknown persons who allegedly agreed with each other to assault and kill the victim were named as the petitioner's coconspirators. Weaver's testimony and the petitioner's own written statement established that the petitioner and Jermaine Reese were angry and confronted Sattawhite prior to the shooting because Sattawhite had bragged about killing one of their friends. The testimony of Steskla, Weaver and Erskine also showed that Jermaine Reese participated in the altercation and that he or one of the other coconspirators shot the victim to death with a handgun at close range. Moreover, the victim, Gray and Sattawhite were all together when their group was attacked by the group of coconspirators. Based on all of the evidence, the jury could have found that Jermaine Reese or one of the other conspirators intended to cause the victim's death and did in fact cause his death. "[U]nder Pinkerton, a coconspirator's intent to kill may be imputed to a defendant who does not share that intent, provided, of course, that the nexus between the defendant's role and his coconspirator's conduct was not so attenuated or remote . . . that it would be unjust to hold the defendant responsible . . ." (Citations and internal quotation marks omitted.) State v. Cotherst, 236 Conn. 478, 494 (2003). Therefore, even if the jury did believe that Jermaine Reese or one of the other coconspirators apart from the petitioner was the actual shooter, it still could have convicted the petitioner pursuant to the Pinkerton doctrine because the evidence brought the petitioner within the ambit of that doctrine. The intent and conduct of the coconspirator was attributable to the petitioner. Further the homicide was the object of coconspirators' agreement. In short, whether the petitioner actually shot the victim does not have a bearing on his culpability for murder under the factual circumstances because the state could have reasonably argued that he was subject to liability for murder based on the purposeful conduct of his coconspirators.
See Pinkerton v. United States, 328 U.S. 640 (1946).
The conspiracy charge was withdrawn by the state after the petitioner rested his case and before the state's rebuttal evidence.
The petitioner also claims that Bodell performed deficiently because he failed to call Bridgeport Police Inspector Paul Lenglel as a defense witness. The following additional facts are necessary to resolve this claim. In the spring of 1999, Lengyel took a written statement from Sattawhite in which Sattawhite named Jermaine Reese as the person who used a handgun to shoot the victim during the courthouse altercation. The petitioner argues that had Lengyel been called to testify, the jury would have learned about Sattawhite's alleged observation and used it as a basis to acquit the petitioner. This claim lacks merit because had Lengyel been called, it is unlikely that the hearsay evidence he learned from Sattawhite would have been admitted into evidence. See Code of Evidence Section 8-2 et seq. Further, it does not appear that Lenyel's hearsay testimony would have fit under any of the hearsay exceptions. Id. Therefore, the petitioner's claim must fail.
This claim fails because the petitioner has abandoned it by failing to address it in his brief. See State v. Pulaski, supra. The court rules in the alternative, however, that the claim is rejected for the reason given in the text.
Finally, the petitioner faults his trial attorney for his failure to call the petitioner's former high school teacher or a handwriting expert to show that the petitioner was left-handed, contrary to the testimony of Steskla, who testified that the shooter held the murder weapon in his right hand This claimed deficiency lacks merit for several reasons. First, there is no credible habeas trial evidence regarding what the petitioner's former teacher or a handwriting expert would have identified as the petitioner's dominant hand The petitioner admitted during his habeas trial testimony that he had not been in contact with the teacher for at least five years. Even if the teacher or handwriting expert testified that the petitioner is left-handed, that would not negate the possibility that he fired the gun with his right hand Bodell was aware of this possibility and in any event, the petitioner admitted to Lindsay that he did in fact shoot the victim. Second, "[i]t is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses . . . The [jury] can . . . decide what — all, none, or some — of a witness's . . . testimony to accept or reject." (Internal quotation marks omitted.) State v. Pranckus, 75 Conn. App. 80, 87, 815 A.2d 678, cert. denied, 263 Conn. 905, 819 A.2d 840 (2003). This means that the jury did not have to accept Steskla's claim that the shooter was right-handed in order to credit other parts of his testimony. Even if the jury had heard and credited evidence that the petitioner was left-handed, it still could have concluded that the petitioner was the shooter. Third, had the jury credited the testimony of Erskine and any other evidence indicating that the petitioner was not present during the courthouse altercation, the absence of evidence about the petitioner's dominant hand would have been inconsequential. In short, trial counsel was neither deficient, nor did the petitioner suffer prejudice, based on the failure to present evidence of the petitioner's claimed left-handedness because such failure had no bearing on the alibi defense.
C
In the second count of the amended petition, the petitioner claims that he is actually innocent based on the testimony that could have been offered by Kenyatta Davis and Desmond Hamilton. Neither Davis nor Hamilton testified at the habeas trial. The petitioner did not call Davis as a witness. The following additional facts are necessary to resolve the petitioner's actual innocence claim. The petitioner's habeas counsel represented to the court that Hamilton was incarcerated and asked the court to obtain Hamilton's presence at the habeas trial so that he could testify. The court asked counsel to submit a written offer of proof regarding Hamilton's anticipated testimony and counsel did so by way of a "motion for order," dated February 24, 2004. In this written offer of proof, counsel indicated that all the witnesses named therein, including Hamilton, were "essential to prove the [p]etitioner's claim of ineffective assistance of counsel." Counsel also said in the written offer of proof that Hamilton "was at GA 2 in Bridgeport at the time of the shooting . . . saw the [p]etitioner a [sic] the time of the shooting and [the petitioner] did not have a gun and [the petitioner] was not near the gunshots. The Petitioner had told trial counsel about Mr. Hamilton and where he was, but trial counsel failed to call him to testify for the Petitioner." The court denied, without prejudice, the petitioner's request to procure Hamilton's presence to testify. That request was subsequently renewed dating the habeas trial, and at that time counsel orally represented to the court that the petitioner knew that Hamilton was present when the shooting occurred and that Hamilton was available to testify at the criminal trial. The court again denied the petitioner's request to bring Hamilton to court so he could testify. Bodell indicated at the habeas trial that he could not recall the petitioner specifically mentioning Hamilton as a potential criminal trial witness, but was confident that he and his investigators made an effort to interview all the known witness and call those who were available and helpful to the defense.
The court notes that the petitioner's brief does not argue that his claim of actual innocence is based on the testimony of Hamilton, a newly discovered witness. The petitioner's brief instead argues that the testimony of a newly discovered witness named Lloyd Duffus would have impeached the credibility of Weaver, who implicated the petitioner in the murder. This claim fails because it was not asserted in the amended petition. See Jenkins v. Commissioner of Correction, supra.
In the alternative, however, the court rules that even assuming the credibility of Duffus' habeas trial testimony, the claim of actual innocence fails. The following additional facts are necessary to address this claim. Duffus testified at the habeas trial that he and Weaver were incarcerated together shortly before the petitioner's criminal trial, that Weaver was held in jail in lieu of a high bond on a charge unrelated to the murder, that the two men discussed the courthouse shooting and that Weaver was released on a reduced bond prior to implicating the petitioner in the crime at the petitioner's trial. Duffus also indicated that he was not at the scene of the crime and did not have personal knowledge of what occurred at that time. The petitioner argues that Duffus' testimony would have impeached Weaver's credibility by showing that Weaver was motivated to testify that the petitioner was the shooter, notwithstanding his denial to the police of any knowledge of the shooting, in order to be released from jail on a lower bond. This argument, however, is unpersuasive because on cross-examination at the petitioner's criminal trial, Bodell did in fact force Weaver to admit that the state had agreed to reduce his bond prior to his trial testimony and that he had lied to the police when he denied knowing anything about the courthouse shooting. Hence, the testimony of Duffus, at best, would have been cumulative.
In Miller v. Commissioner of Correction, 242 Conn. 745 (1997), our Supreme Court held that "the proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." Id., 747. This court, having reviewed the habeas trial testimony of Duffus, the remaining habeas trial evidence and the criminal trial evidence, is not persuaded that there is clear and convincing evidence that the petitioner is actually innocent of the crime for which he was convicted. Because the petitioner has failed to satisfy the initial requirement of persuading this court by clear and convincing evidence that he is actually innocent, it is unnecessary for the court to address the second part of the actual innocence test. The petitioner's claim of actual innocence based on the testimony of Duffus must fail.
In Clarke v. Commissioner of Correction, 43 Conn. App. 374 (1996), the Appellate Court ruled that "a writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . Moreover, [w]e incorporate[d] the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner's claim of actual innocence . . . Thus, we held that a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence." (Internal citations and quotation marks omitted) Id., 379. The petitioner must, therefore, as a threshold matter demonstrate that his claim of actual innocence is based on newly discovered evidence which was not available through the exercise of due diligence at the time of his criminal trial. If the petitioner meets the initial requirement that his claim of actual innocence is based on newly discovered evidence, then he must prove the elements of actual innocence pursuant to Miller v. Commissioner of Correction, supra, i.e., he must persuade the habeas court that after taking into account all of the habeas and criminal trial evidence, he is actually innocent and that no reasonable fact finder, after taking all of the evidence into account, could convict him of the crime for which he stands convicted.
The petitioner in the present case has failed to make the threshold showing that his claim of actual innocence is based on newly discovered evidence. He did not offer any testimonial evidence from Davis to support his claim of actual innocence. Therefore, it fails insofar as it relates to her. In addition, the petitioner's written offer of proof and oral representation by habeas counsel establish that Hamilton would not have offered newly discovered evidence. According to the written offer of proof and the oral representation, the petitioner told Bodell about Hamilton at the time of the criminal trial and Hamilton was available to testify. Assuming the offer of proof and representation are true, that evidence clearly is not newly discovered. Hence, the petitioner does not qualify to have his actual innocence claim reviewed based on Hamilton's testimony.
It is important to note that the amended petition does not allege ineffective assistance based on the failure to call Hamilton as a trial witness. Even if the amended petition does allege ineffective assistance based on such failure, however, the allegation has no merit because Hamilton's testimony would have contravened counsel's tactical decision to pursue the alibi defense. Hamilton's testimony, like that of Gray and Sattawhite, would have placed the petitioner at the scene of the crime and would have been inconsistent with the petitioner's statement to the police. Moreover, although Bodell did not specifically recall Hamilton, Bodell did interview and consider using all witnesses who were available and helpful to the defense. Assuming, as claimed in the offer of proof, that Bodell knew that Hamilton was available and would have testified as the petitioner claims, Bodell did not call him for the same tactical reasons he did not call Sattawhite or Gray.
As noted earlier, the petitioner's motion for order claims that Hamilton was an essential witness for purposes of proving the ineffective assistance claim. The amended petition, however, does not make any allegations of deficient performance based on Bodell's failure to call Hamilton as a witness. Because the petitioner did not allege deficient performance based on such failure, the court is not required to review it. See Jenkins v. Commissioner of Correction, supra. The court, however, rules in the alternative the claim lacks merit for the reasons stated in the text.
III Conclusion
The petitioner has failed to prove his first claim of ineffective assistance of counsel and has failed to produce newly discovered evidence in support of his second claim of actual innocence. Each count of the petitioner's amended petition is therefore dismissed.
The Court
White, J.