Opinion
No. CV 05 4000452 S
August 14, 2009
MEMORANDUM OF DECISION
The petitioner, Donald Roberson, filed a petition for a writ of habeas corpus on May 31, 2005, challenging the legality of his detention. He was charged, in a criminal case bearing Docket No. CR 98 0135894, with attempted murder in violation of General Statutes § 53a-54a, assault in the first degree in violation of General Statutes § 53a-59(a)(5), burglary in the first degree in violation of General Statutes § 53a-101, and risk of injury to a minor in violation of General Statutes § 53-21. After a jury trial, during which he was represented by attorney Dante Gallucci, the petitioner was convicted of assault in the first degree, burglary and risk of injury to a minor. He received sentences of fifteen years incarceration for assault, ten years incarceration for burglary, execution suspended, to be served consecutively, and fifteen years incarceration for risk of injury to a minor plus five years probation, to be served concurrently with the sentence for assault, for a total effective sentence of twenty-five years incarceration, execution suspended after fifteen years plus five years probation.
After the trial but before sentencing, the petitioner retained attorney James Ruane to represent him at sentencing and on appeal. Ruane filed a motion for a new trial on the basis of newly discovered evidence in the form of a previously unknown witness. While the motion was pending, attorney Gallucci hired an investigator who found two additional eyewitnesses whose testimony allegedly exculpated the petitioner. Attorney Ruane was informed of this evidence, but did not amend his motion for a new trial to reflect it. The motion for a new trial was denied, and the petitioner's convictions were upheld on appeal. See State v. Roberson, 62 Conn.App. 422, 771 A.2d 224 (2001).
In an amended petition filed September 5, 2008, the petitioner alleges that his convictions were the result of ineffective assistance of counsel in that attorney Gallucci failed to investigate, discover and present the witnesses' testimony prior to trial, and that attorney Ruane was ineffective in failing to amend his motion for a new trial to include the two witnesses attorney Gallucci's investigation uncovered. The respondent filed a return on September 9, 2008 and a corrected return on September 10, 2008, denying or leaving the petitioner to his proof on the material allegations of the petition and raising the special defense of procedural default on the grounds that the petitioner had filed two previous habeas petitions that were voluntarily withdrawn before adjudication on the merits.
The matter came before the court for a trial on the merits on May 28, 2009. Testifying were attorneys Gallucci and Ruane, and sisters Anjilicque and Aundrea Hitson, the witnesses discovered by Gallucci's investigator, and the investigator, Donna Henry. The petitioner submitted numerous exhibits, including photographs of the crime scene, written statements from both Hitson sisters, pleadings related to the motion for a new trial and transcripts from the underlying criminal trial. The respondent submitted a different photograph of the crime scene.
FINDINGS OF FACT
The following underlying facts are taken from the Appellate Court's decision on direct appeal. "On August 5, 1997, the victim, Irwin Clemons, then living in the Marina Village complex in Bridgeport, was eating on a porch in the area. The defendant and three or four other men approached the victim and told him that he was not welcome in the area and that he should not return there. The victim's roommate, Brian Furse, arrived on the scene, driving his van. The victim walked to Furse's van, and the defendant followed him. The victim, believing that the defendant was about to pull out a gun, turned around and put the defendant in a bear hug. He felt a gun in the defendant's back pocket and threw him to the ground, causing the gun to fall. As the victim bent over to get the gun, one of the defendant's companions, K, shot the victim in the leg. The defendant then picked up his gun and shot the victim in the ankle as he tried to crawl away. The victim crawled to the nearby apartment of Sharon Edwards, who had witnessed some or all of the events. As the victim attempted to enter Edwards' apartment, he was shot in the chest. The defendant was the only person located near the victim who was in possession of a gun. The victim managed to enter Edwards' apartment. Meanwhile, the defendant tried to force his way into the apartment while yelling that he was going to shoot the victim. The victim suffered three bullet wounds: one in his chest, one in his ankle and one in his left thigh.
"The court severed K's trial from the defendant's trial. The defendant was tried first, and a jury found him guilty of the charges on March 27, 1999. Prior to the defendant's sentencing and while preparing for the trial of K in the companion matter, the prosecutor spoke to Richard Brookings. Brookings stated that he was with the victim on the night of the shooting and that he had observed the victim throw the defendant to the ground, but that he had not seen a gun. He further stated that he had heard a shot come from his right and that he fled the area and went into Edwards' apartment. He stated that when he was in the apartment, the victim asked him, 'Who shot me?' The prosecutor disclosed this information to the defendant's counsel and also to counsel for K in the companion matter yet to be tried.
"The prosecutor provided to counsel for both individuals Brookings name and the police reports pertaining to him in a February 16, 1999 disclosure. This disclosure occurred one month prior to jury selection in the defendant's case.
"Following Brookings' testimony in the companion matter, the defendant filed a motion for a new trial on the basis of this newly discovered evidence. The defendant relied on the transcript of Brookings' testimony, claiming that it showed that (1) Brookings came with the victim to the scene of the incident, although the victim testified at trial that he came to the scene with Furse only, (2) Brookings did not see the gun (3) the victim asked Brookings who had shot him, although the victim testified at trial that the defendant had shot him, and (4) Brookings was in Edwards' apartment after the shooting occurred and did not see the defendant there.
"After the court held a hearing on the defendant's motion, it concluded that the defendant had not sustained his burden of demonstrating that the evidence could not have been discovered earlier by the exercise of due diligence and that it was likely to produce a different result in a new trial. The court, therefore, denied the motion." State v. Roberson, supra, 424-25.
The petitioner presented testimony from two eyewitnesses to the shootings that he claims is exculpatory. Anjilicque Hitson testified that, on the day of the shooting, the victim, whom she knew as "Oc," was calling the petitioner derogatory names and generally being antagonistic towards the petitioner all day. At some point, while she was standing on Sharon Johnson's porch, the petitioner said "I'm out of here" and began walking away from the porch through the parking lot. Oc then ran over and literally knocked the petitioner out of his shoes, at which point shots rang out from the side of the building and Oc began crawling towards Sharon Johnson's porch. She did not see the petitioner approach or walk away from a van, though there was a jeep parked in the vicinity. She also testified that the petitioner appeared to be unconscious or at least dazed on the ground when the only shots fired rang out. As Oc approached the steps and grabbed the baby carriage, the petitioner was chasing him saying "get the fucking kids in the house" and was holding a gun. She never saw him fire the gun, but he had it in hand after getting up and was vigorously trying to un-jam it. She had brought this information to attorney Gallucci prior to the petitioner's trial, but the petitioner expressed a desire that they not get involved and not testify; nevertheless, she would have if asked.
Aundrea Hitson testified to largely the same set of events up to the point that Oc attacked the petitioner, but stated that they were tussling in the parking lot, whereas her sister stated there was no struggle, just an initial attack. She saw fire coming from the side of the building while the petitioner was still on the ground. She did not see the petitioner holding a gun, but saw that his gun was dislodged when he was attacked, and that after the shots rang out he took off down the street. She testified that she ran in the house once she heard shots, and saw the rest of the incident through a window. She also testified that the petitioner had told them not to testify at trial, but that she would have if asked.
Attorney Gallucci testified that he did not recall the Hitson sisters specifically but did remember finding some witnesses subsequent to the petitioner's trial. Donna Henry was retained as Gallucci's investigator and took statements from Anjilicque and Aundrea Hitson after the petitioner's trial.
Attorney Ruane testified that he was aware of the Hitson sisters' statements, but chose not to amend his motion for a new trial to reflect their testimony because he felt it contradicted both the petitioner's testimony and that of Richard Brookings, who was the focus of the motion for a new trial. He also determined that Brookings' testimony was more consistent with the evidence and was more exculpatory, and made the strategic decision to present only this evidence to the exclusion of the Hitson sisters' testimony.
Additional facts will be discussed as necessary.
DISCUSSION
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution . . . As enunciated in Strickland v. Washington, [ 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . [A] reviewing court can find against a petitioner on either ground, whichever is easier." (Citation omitted, internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 834-35, 970 A.2d 721 (2009).
The petitioner's first claim is that attorney Gallucci was ineffective in failing to conduct an adequate investigation that would have revealed the testimony of the Hitson sisters, and, as a corollary, to call them as witnesses and present their testimony to the trial court. "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner . . . Mere conjecture and speculation are not enough to support a showing of prejudice." (Citation omitted; internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn.App. 526, 532, 914 A.2d 1049, 282 Conn. 905, 920 A.2d 308 (2007). "[T]he presentation of testimonial evidence is a matter of trial strategy . . . The 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." Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001).
The respondent raised the special defense of procedural default to both counts of the complaint on the ground that the petitioner has filed two prior habeas petitions, both of which were voluntarily withdrawn. As this court previously noted in deciding the petitioner's motion to strike the special defense, however, procedural default is not implicated in such a situation, applying only to constitutional claims that could have been but were not raised at the criminal trial or on direct appeal therefrom. See Roberson v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 05 4000452 (January 21, 2009, Nazzaro, J.) (denying motion to strike on other grounds); see also Velasco v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 05 4000321 (August 13, 2008, Schuman, J.). Therefore, the petitioner is not procedurally defaulted from proceeding with the present claims.
Putting aside the question of whether attorney Gallucci performed deficiently in failing to investigate and call the Hitson sisters, the petitioner has failed to demonstrate that he was prejudiced by the absence of their testimony at trial. Although both testified that they did not see the petitioner shooting a gun, they both testified that the petitioner was brandishing a gun at one point while advancing on the victim. Anjilicque Hitson testified that the petitioner was trying to get the gun unjammed. Additionally, there were significant gaps or contradictions in their testimony that render it less credible. Anjilicque Hitson testified that shots were fired almost immediately after Oc knocked the petitioner down, whereas Aundrea Hitson testified that the pair were "tussling" for a period of time on the ground. Aundrea testified that she ran in the house once she heard shots, which contradicted a statement she gave to Donna Henry, shortly after the trial, that she ducked behind a tree in the yard. She also testified that Oc ran over to the van he came in to get a weapon after knocking down and tussling with the petitioner, which ran contrary to her sister's as well as every eyewitness's testimony at the criminal trial, including the petitioner's. She also initially stated that she never saw the petitioner with a gun that day, only to later state that he had a gun before he was knocked down by Oc, but that it was then dislodged and the petitioner simply took off down the street rather than picking up the gun and advancing on Oc. Aside from the inconsistencies between her and Aundrea's testimony, Anjelicque Hitson's testimony at the habeas trial conflicted with her own statement to Donna Henry, attorney Gallucci's investigator, in that she initially stated that the petitioner left immediately when shots were fired. Moreover, her habeas testimony was hardly exculpatory; she saw the petitioner advancing on Oc with a gun, trying to unjam it. She also testified that she did not see Oc shot in the chest and that she did not realize it until later; the fact that he had been shot in the chest, therefore, suggests that he must have been shot when Anjelicque was not looking. No evidence placed the other shooter, K, anywhere near the steps when Oc was shot in the chest. The rest of her testimony was by and large similar to that revealed at the criminal trial.
Taken together, and when compared with both witnesses' prior statements, this testimony is not particularly credible; moreover, even if believed, it falls short of the standard required to demonstrate the unfairness of the petitioner's trial. "In 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." (Internal quotation marks omitted.) Saunders v. Commissioner of Correction, 113 Conn.App. 474, 477, 966 A.2d 796 (2009). This court is not convinced that, had the petitioner called the Hitson sisters at his criminal trial, the verdict would have been different. Neither witnesses' testimony directly exculpates the petitioner, and that which does was presented at trial anyway in the testimony of Gale Johnson, another eyewitness who testified that, although the petitioner was tackled and fighting with Oc, he did not shoot him. Even Brian Furse, the victim's friend and driver of the van the victim arrived in, testified that he did not see who fired the shots. Certainly, the Hitson sisters' testimony, which could only be collectively taken to establish that neither saw the petitioner shoot the victim, would not likely have swayed a jury to conclude differently given the internal and external contradictions otherwise contained in their testimony. Cf. Fisher v. Commissioner of Correction, 45 Conn.App. 362, 366-68, 696 A.2d 371, cert. denied, 242 Conn. 911, 697 A.2d 364 (1997) (testimony of minor discrepancies in eyewitness accounts of shooting insufficient to undermine confidence in outcome where substantial other evidence points to petitioner's guilt). The petitioner has failed to establish that he was prejudiced by the failure to call the Hitson sisters at trial and, therefore, has failed to prove the claim that he received ineffective assistance of counsel.
B. Count two: Ineffective Assistance of Attorney Ruane
The petitioner next attacks attorney Ruane's effectiveness in that he failed to amend his motion for a new trial to include newly discovered evidence in the form of the Hitson sisters' testimony and to present their testimony to the trial court. As discussed above, however, this "newly discovered evidence" would not likely have produced a different result, and a motion for a new trial — or, rather, a petition for a new trial — would not be successful on this basis.
Although a motion for a new trial, permitted by Practice Book § 42-53, is typically limited to trial errors appearing on the record; see State v. Jones, 205 Conn. 723, 730, 535 A.2d 808 (1988); by agreement of the parties, the petitioner essentially filed a petition for a new trial in the guise of a motion for a new trial to avoid the delay of filing an entirely new civil action pursuant to Practice Book § 42-55 and General Statutes § 52-270.
"The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established. The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial . . . This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final, and should not be disturbed by post-trial [proceedings] except for a compelling reason . . . In determining the potential impact of new evidence, the trial court must weigh that evidence in conjunction with the evidence presented at the original trial . . . It is within the discretion of the trial court to determine, upon examination of all the evidence, whether the petitioner has established substantial grounds for a new trial." (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 100 Conn.App. 94, 100-01, 917 A.2d 555, cert. denied, 282 Conn. 914, 924 A.2d 140 (2007). "With respect to the first prong of this test, [d]ue diligence does not require onmiscience. Due diligence means doing everything reasonable, not everything possible . . . [T]o entitle a party to a new trial for newly-discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted." (Internal quotation marks omitted.) Id., 101.
This court has already concluded that the evidence presented would not likely lead to a different result and, therefore, now concludes that the fourth prong of the standard required for newly discovered evidence has not been met. The court further notes that there was no bar to the petitioner or attorney Gallucci discovering the proffered evidence prior to trial. To the contrary, evidence at the habeas trial indicated that the petitioner knew the Hitson sisters could testify but expressly told them not to get involved; therefore, the evidence is clearly not "newly discovered" such that it satisfies the first prong. Thus, the motion for a new trial was not likely to have been granted even if the Hitson sisters' testimony were introduced. Finally, attorney Ruane credibly testified that he made a tactical decision not to amend his motion in light of attorney Gallucci's letter because he felt the Hitson sister's testimony was internally contradictory and not credible, and that the testimony of Brookings would be a much more effective basis for the motion. "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 . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186 (2009). There was no deficient performance in attorney Ruane's decision to not include the Hitsons in his motion for a new trial, and no prejudice to the petitioner even if deficient performance were to be presumed.
CONCLUSION
The petitioner has failed to demonstrate that he received the ineffective assistance of counsel, and his petition is therefore denied. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the court within thirty days.