Opinion
No. CV 00-0437060 S
February 6, 2007
MEMORANDUM OF DECISION
In this second amended habeas corpus petition, the petitioner alleges actual innocence (Count One) and ineffective assistance of counsel (Counts Two and Four). A third count was withdrawn at the commencement of the habeas trial because it involved a claim raised on direct appeal.
This action is the result of the petitioner's conviction by a jury of a charge of aiding and abetting murder. He was sentenced to a term of 50 years on May 16, 1997.
His direct appeal was affirmed in State v. Rodgriguez, 56 Conn.App. 117 (1999). He was represented on the appeal by his trial counsel.
STANDARD OF REVIEW
The standard of proof applicable to claims of actual innocence has been addressed in Miller v. Commissioner of Corrections, 242 Conn. 745 (1997):
"We conclude that the proper standard for evaluating a freestanding claim of actual innocence is two-fold. 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 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 as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime." Id., at 747.
The petitioner's claim in the first count must be evaluated in light of this standard.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.
Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims:
"The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn.App. 674, 678, 564 A.2d 303 (1989). He must also show "that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial." Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357; 559 A.2d 206 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge. ( Strickland, supra).
I
Addressing first the claim of actual innocence, the petitioner is confronted with an overwhelming obstacle — his confession.
The voluntariness of and thus the admissibility of his confession was raised via two motions to suppress — both were denied.
That the petitioner was granted hearings on two such motions is in itself a commentary on the effectiveness of his representation.
Petitioner's original trial counsel argued and lost the first motion to suppress. When trial counsel replaced him, he argued that he should be given a "fresh start" and do his own such motion and hearing. His request was granted and the petitioner received the benefit of a completely new hearing. The second motion was also denied after re-hearing. (Trial counsel also successfully argued the jury panel he inherited should be dismissed and he started a fresh jury selection process.)
The issue of the admissibility of the confession was raised on appeal by trial counsel and the Appellate Court rejected the petitioner's claim, finding the confession was given freely and voluntarily. ( State v. Rodriguez, 56 Conn.App. 117, 1999).
Thus, this court must weigh that result, the other trial evidence and the evidence adduced at the habeas trial and determine whether it meets the "clear and convincing evidence" requirement. (Miller, supra).
The petitioner's testimony at this trial was not convincing and essentially amounted to asking this court to believe his version of the events leading to his giving the confession. He added little to what was already a matter of record. His suggestion that counsel should have called an expert on gang culture who would testify that a gang wouldn't kill its own member sounds like a theme extracted from movie-TV portrayals.
In brief, the habeas trial evidence added nothing to the defense and failed to detract from the prosecutions case.
The sum total of all this evidence does not even suggest that the petitioner is innocent. Actually, no reasonable trier could acquit him.
Count One is therefore denied.
II
One of the petitioner's claims of ineffective assistance of counsel involves the alleged failure to fashion an alibi defense. Specifically, he claims he was at the hospital with his girlfriend, Maryann Terpack.
The first problem with this defense is that Ms. Terpack checked into the hospital at 10:45 P.M. the night of the shooting. The 911 call was logged in at 10:05 P.M. Though Ms. Terpack stated she was at the hospital an hour earlier (making it possible for the petitioner to have been there), no one saw him there. In fact, a nurse testified her only visitor was a woman and she saw neither the petitioner nor the wheelchair bound Jorge Sierra at the hospital. (The petitioner states he wanted Sierra called as a witness.)
Beverly DeJesus found the victim after the shooting and was at the emergency room when he arrived. She did not see the petitioner nor Mr. Sierra in his wheelchair. This obviously had to have been immediately after the 911 call of 10:05, but Ms. Terpack had not even arrived at the ER.
Further, in the petitioner's statement to the police, he said he, Sierra, and Ms. Terpack were dropped off at the hospital. (Tr. Page 56, 2/26/97.) If that were so, he was not dropped off till long after the shooting and 911 call.
There was no alibi defense for counsel to present unless we are to ignore the testimony of a disinterested person and the hospital records. Counsel obviously realized this.
Reading the trial transcript, the court finds no instances of prosecutorial misconduct, let alone any episode worth raising on appeal, as was suggested by the petitioner.
The petitioner is critical of his trial counsel for failing to emphasize two facts which were not disputed. The state brought out that the petitioner was not present when the attack on the victim was discussed. He also argues that counsel should have stressed that there was no evidence of his fingerprints on the spent shells found at the crime scene.
Whether further discussion of these points was dictated is debatable. The first point was established by the state. As to the shells, this could very well have led to the presentation of evidence that it is unusual for fingerprints to be found on such items.
The petitioner makes general allegations about counsel's performance. These include failing to prevent prejudicial evidence from coming in, failing to call material witness and failing to perform a diligent pre-trial investigation.
Save for the alibi witnesses discussed above in the evaluation of that defense, the court has not been provided with any other names, nor what they would have said to aid the defense. Similarly, counsel who replaced prior counsel succeeded in getting a new suppression hearing and jury voir dire. A reading of the pertinent transcripts indicates counsel had a thorough grasp of the petitioner's defense, knew what he was up against and made a strenuous attempt to explain away the inculpatory statements of the petitioner and his girlfriend. That this defense was unsuccessful after two suppression hearings, a trial, and an appeal is indicative of its credibility.
The court finds no prejudicial evidence that counsel could have prevented from being introduced. The petitioner and his girlfriend rendered him essentially helpless with their statements and weak explanations of how they came about.
Finally, it was incumbent on the petitioner to present at the habeas trial the evidence he claims should have been produced and the witnesses who would testify as to that evidence. ( Adorno v. Commissioner of Corrections, 66 Conn.App. 179, 186 (2001)).
No such evidence was produced, nor was evidence produced that counsel failed to investigate the case. Counsel had the services of an investigator and utilized him. There is no suggestion as to what the petitioner expected would be found by this investigation and what effect it could have had on the jury verdict. This too was his burden. Holly v. Commissioner of Correction, 62 Conn.App. 170, 175 (2001).
The gist of the defense had already been dictated by the petitioner and his girlfriend having given statements which had to be confronted at trial. Counsel did all he could with this flawed scenario.
Finally, defense counsel was questioned about his handling of the appeal. He adequately explained his decision to raise only the significant issue in the case, a tactic long advocated by appellate specialists and endorsed by the United States Supreme Court. Jones v. Barnes, 463 U.S. 745, 751-3, (1983).
In view of the foregoing, the court must deny the petition's Counts Two and Four alleging ineffective assistance.
CT Page 2783
CONCLUSION
The court finds that not only was counsel not ineffective, a reading of the transcript compels the conclusion that he was effective and did not shrink from contesting any issue that arose where the petitioner's fate was involved.In particular, getting the second suppression hearing and a new jury panel belies any suggestion he was performing at a lower professional level for the time and place.
While this court has been critical of the paucity of the proof offered on behalf of the petitioner in the habeas trial, the court is not critical of habeas counsel. He raised what few grounds he could but like trial counsel, he could not avoid the twin disasters facing him in the form of the two statements and the misbegotten alibi defense.