Opinion
No. CV01 045 05 26S
November 2, 2006
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
In a detailed 12-count habeas corpus petition, the petitioner seeks a new trial after conviction on April 6, 1995 by a jury. The jury found him guilty of conspiring to commit murder, attempted murder, and manslaughter in the 1st degree. The convictions were affirmed in State v. Ruffin, 48 Conn.App. 504 (1998).
He alleges ineffective assistance of his trial counsel, the specifics of which will be stated and addressed below.
The offenses charged resulted from the shooting and killing of a 7-year-old child, Jasmine Merced, in Stamford on July 3, 1993. While other persons were arrested and charged soon after the killing, the petitioner was not arrested until June of 1994 when he was arrested in Pennsylvania on Connecticut warrants. One warrant dealt with the child's killing, the other, alleged sale of narcotics.
After a habeas corpus trial in 2005, the petition was denied but that trial judge became incapacitated and unavailable to participate in post-trial procedures. Counsel for the petitioner and the respondent and the petitioner appeared before this court and it was agreed that the petitioner's motion for reconsideration would be granted and the matter would be decided by this court, utilizing the habeas corpus trial transcripts and the evidence from the criminal trial, including the trial transcripts. The court has read the complete trial transcripts to prepare for writing this decision.
STANDARD OF REVIEW In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense. Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims:
"The right of a defendant to effective assistance is not, however the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 1977); Chance v. Bronson, 19 Conn.App. 674, 678, 564 A.2d 303 (1989). He must also show . . . `that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.'
Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge. ( Strickland, supra).
The petitioner's claims must be evaluated in light of these standards.
DISCUSSION I CT Page 20340
The petitioner has alleged that trial counsel's ineffective assistance includes his failure to move for a change of venue when the petitioner's case was reached for trial.For such a motion to be granted, the movant must show that a fair and impartial trial cannot be had in the county where the case is to be tried. (Citations omitted.)
The petitioner's testimony was that while his co-defendants were on trial, there were daily newspaper articles about the proceedings. One individual was featured in a TV special, "America's Most Wanted." All of this occurred the year before the petitioner's trial without the actual date of the appearance being stated. (TR, Feb. 10, 2005, pages 24-27.)
During jury selection, prospective jurors were questioned about whether they had read anything about the charges and the petitioner. No one who responded affirmatively was seated on the trial panel.
Nothing during the voir dire suggested that an impartial jury could not be obtained, nor that jury panels had been influenced by media accounts.
There was no basis for such a motion and counsel should not be expected to raise claims lacking substance.
This claim has no merit.
II
The court must also reject the claim that counsel should have moved to recuse the trial judge. No basis for this position is advanced, but trial counsel testified that he felt his client would be treated fairly by the trial judge. He also indicated that in his prior appearances before that judge, his clients were treated fairly and the defense was accorded due consideration.
Such a motion without some substantial basis would not be granted. "Judge shopping" has always been discouraged.
III
The petitioner has alleged counsel's failure to withdraw from representing him is a further indication of his ineffective assistance.
Counsel was acting as a court-appointed special public defender and several months prior to trial, the petitioner had requested that he be discharged as counsel. A hearing was held and the petitioner was heard, after which the request was denied. That decision was one of the petitioner's claims in his direct appeal.
The court presumes that the petitioner's claim is that counsel should have withdrawn because he requested him to do so or that sometime after his request to the court was denied, counsel should have moved to withdraw. No subsequent request was filed by the petitioner nor did he ever ask counsel to withdraw. This claim must be rejected as lacking any basis in fact.
IV
Trial counsel's efforts are further questioned by the petitioner because of his alleged failure to act when the petitioner told him that two adverse witnesses were represented by an attorney with "a history of personal animosity" with the petitioner.
The petitioner would have had his trial counsel "investigate" this relationship and then call the attorney to testify at the petitioner's trial.
Unless that attorney expressed the sentiment that he so despised the petitioner that he urged his client to commit perjury, one must question the relevancy of the prior history between the two parties.
But assuming trial counsel called the attorney to testify, it would appear extremely dangerous to the petitioner to open up that avenue of inquiry. The witness might well have some choice comments pertaining to that prior relationship. And, the jury would be hearing potentially damaging personal information from a person the jury would see as an outsider.
Trial counsel did not recall this subject being an issue in his representation of the petitioner.
However, the attorney in question testified at the habeas trial and no suggestion of animosity toward the petitioner was developed. His testimony concluded with his response to a question: "I didn't know Marcellus Ruffin at all." (TR, March 3, 2005, Page 13.) Trial counsel testified that he spoke with this attorney prior to his client's trial testimony.
The court finds no merit to this allegation, and one winces at the thought of what suggestion would be evoked from an attorney questioned along these lines. One must also question the wisdom of indicating to a jury that the petitioner had earlier dealings with a criminal defense lawyer, suggestive of prior criminal charges.
V
In evaluating the claim that trial counsel failed to call, write or visit the petitioner before trial, the court must take into account the fact that though the offenses charged occurred on July 3, 1993, he fled the jurisdiction and was not apprehended until June of 1994.
Thus, counsel came into a case with a "cold trail" and with alleged co-conspirators already in the process of pleading or going on trial.
The petitioner testified that he was brought to court 13 times and on 11 of those occasions, he had a chance to speak to counsel before March 12, 1995. Jury selection started on March 14, 1995. (The evidence did not start until March 28, 1995.)
Prior to this time, the court heard the petitioner's motion to discharge his attorney because counsel had not visited him at his place of incarceration. The court, in denying the motion, was satisfied with trial counsel's explanation that he was "waiting to meet with other witnesses whom the defendant's family was trying to locate." State v. Ruffin, 48 Conn.App. 504, 513 (1998). As noted above, the court's denial was raised in the direct appeal and the claim was rejected. ( Id., at 514.)
It is also significant that the petitioner's motion was filed about eight months after counsel was appointed, on June 28, 1994. On October 21, 1994, the petitioner appeared in court and rejected a court-offered disposition tendered "a couple of weeks ago." This would indicate that counsel and petitioner had been communicating and counsel was deeply involved in the case. This was the second plea offer the petitioner rejected.
Trial counsel testified as to his efforts on behalf of the petitioner and reported that he had discussed the statements of the co-defendants with the petitioner. These witnesses would offer the strongest evidence against the petitioner.
He also described meeting the petitioner's alibi witnesses at their residence and discussing their testimony with the petitioner. An attorney who had defended a co-defendant who went to trial gave information to him that was helpful.
Counsel also said there were several people he interviewed that he did not feel would be "suitable witnesses."
In the face of this and other pretrial activity, the court cannot accept the suggestion that trial counsel was deficient and unprepared.
The petitioner has offered no evidence to show how his cause was adversely affected by the alleged failure to write, call or visit him at his place of confinement.
VI
The petitioner also claims trial counsel failed to explain the plea offers that were made to him. Referring to his habeas trial testimony, he identifies an offer of 20 years between August 1994 and March 1995. As noted above, there is a transcript of an October 21, 1994 court appearance. That transcript refers to an offer of 20 years suspended after 12 to 15. Counsel then states:
My client asked for some time to think it over. He's thought it over. He is rejecting the offer. We'd like to put it on the jury list.
This would certainly contradict the petitioner's version of events. Having heard him testify, the court cannot envision him sitting quietly while his counsel addressed the court as stated above.
Equally unworthy of credence is his testimony that he, in effect, was unaware of the details of the plea bargain and that:
Well, he asked me to plead guilty and that was that. (TR, Feb. 10, 2005, Page 21.)
The court does not envision Mr. Ruffin as a docile innocent who would not ask for the details of a plea bargain and sit idly by and let his counsel off so easily. His pro se motion to discharge counsel and use of registered mail for his correspondence suggest otherwise.
VII
Other allegations directed at trial counsel include his failure to take action when advised of inappropriate behavior by a family member of the victim and comments made by a juror.
Trial counsel had no recollection of being approached by a petitioner's witness to discuss either episode.
The first allegation dealt with the observations reported by a member of the petitioner's family to the effect that the victim's grandmother was displaying the child victim's picture to the jury. No one else, and obviously not the trial judge, saw this. The prosecution did offer a photo of the child into evidence and it became an exhibit.
Nothing further was presented on this single episode.
At the habeas trial, the husband of the witness referred to above, described seeing and hearing a juror who remarked:
We got one, we're going to get this one next, banging the wall. (TR, March 3, 2005, Page 17.)
Again, there was no corroboration of this episode and the court heard nothing further on the issue. No details of this episode were given as to others present, etc.
These episodes were allegedly witnessed by the aunt and uncle of the petitioner. They could well be described as serving for him "in loco parentis." They were two of his alibi witnesses at trial. Their testimony was apparently not deemed credible by the jury. At sentencing, the trial judge commented that the petitioner got them to lie. The aunt, who had been involved in preparing the alibi defense and who attended the trial daily, did not appear in person at sentencing but wrote a letter to the judge. The court rejects these episodes as related by witnesses whose credibility is seriously questioned.
VIII
The petitioner also alleges ineffective assistance because of counsel's failure to call witnesses. In paragraph 16 of his third count, he lists eleven names, though in his trial testimony he said sixteen were proposed by him.
One could infer from his testimony that all but one of these eleven would be alibi witnesses, and since the petitioner had eluded the authorities for almost a year before he was even arrested, these alibi witnesses would be testifying about events of, at best, a year earlier. By trial, the time elapsed would be another six months or so.
Three of the remaining alibi witnesses are surnamed "Ruffin," including the previously convicted brother, John Ruffin. One person named allegedly saw the petitioner at a fireworks display on July 3, 1993, at or about the time of the killing. Still another person listed was a co-defendant
No one on this list was called to testify at the habeas trial so that the court could evaluate the witness as to credibility and the testimony as to relevance and probative value.
Consequently, this claim must be rejected. Further, the court notes that trial counsel stated he rejected as not suitable several people he interviewed. He could not recall their names.
IX
The last alleged deficiency in counsel's performance is that he did not prepare for sentencing. With this petitioner's conviction and his image as developed at trial, the minor corrections he addressed to depict his work record would strike this court is miniscule.
The petitioner did not receive his sentence because of his work record and counsel has not shown how this minor correction, if made, would have changed things.
The court is satisfied that counsel did his best with a client who would not be a candidate for leniency after this trial.
X
In addition to its determination that the petitioner has not sustained his burden on either of the prongs of the Strickland test, it is the further conclusion of the court that trial counsel was effective under extremely difficult circumstances.
His objections were numerous, on valid grounds, and usually sustained. He insured that the jury heard that the co-defendants had made plea deals and had an interest in testifying against the petitioner.
He cannot be faulted for not cross-examining fact witnesses whose testimony did not incriminate his client. The witnesses who bore witness to this tragedy and described what they saw and did with this pathetic victim were best left alone.
The voir dire transcripts indicate inquiry was made to obtain a fair jury. Counsel cannot be faulted for being saddled with a couple whom the court found to be lying and an ex-girlfriend whose attempts to be helpful produced the opposite effect.
Further, he was able to negotiate a plea offer which was reasonable under the circumstances of this case, particularly in light of the sentencing result.
The petition is denied.