Opinion
No. TSR CV04-4000119-S
February 8, 2008
MEMORANDUM OF DECISION
Petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus, which was amended for the final time on July 26, 2007. The operative complaint, captioned "Revised Amended Petition for Writ of Habeas Corpus" (petition), alleges that petitioner's convictions are unlawful due to ineffective assistance of counsel. Respondent's return denies that petitioner is entitled to habeas corpus relief.
The matter came before the court over one day in November 2007 for a trial on the merits. Witnesses included petitioner, Joseph Camby and Sara Bernstein. The court finds the testimony of Camby and Bernstein to be highly credible and the testimony of petitioner to be generally not credible. The court has reviewed and considered the testimony, the exhibits, the parties' memoranda of law and their closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
FINDINGS OF FACT
Petitioner was the defendant in two criminal cases pending in the judicial district of Hartford. In Docket Number CR01-550589, petitioner was charged with the crimes of murder in violation of Gen. Stat. § 53a-54a; carrying a pistol without a permit in violation of Gen. Stat. § 29-35; and criminal possession of a firearm in violation of Gen. Stat. § 53a-217c. In Docket Number CR01-550590, petitioner was charged with the crimes of assault in the third degree on a pregnant person in violation of Gen. Stat. § 53-61a; violation of a protective order in violation of Gen. Stat. § 53a-110b; and breach of peace in violation of § 53a-181.
The police reports and witnesses' statements introduced at the habeas trial set forth the state's evidence against petitioner: on February 14, 2001 at approximately 5:38 p.m., Hartford police officers responded to the report of a shooting on Sigourney Street. Upon arriving they observed the victim, Angel Miguel Cruz to be suffering from several gunshots wounds. Cruz was subsequently transported to Hartford Hospital and he expired en route. The victim's brother was also present on Sigourney Street and advised the officers that he had driven the victim to that location in order to buy drugs. Upon arriving, the victim had exited the vehicle and his brother lost sight of him. Hearing gunshots, the brother ran to the victim's location and found he had been shot. A police canvass of the witnesses in the area turned up no information as to the identity of the shooter although a car belonging to petitioner's mother was found idling nearby.
Sometime later that same day, Gordon Willis called Hartford police to report that his granddaughter's boyfriend, Mark Ryan also known as Mook, was involved in the shooting. Additionally on February 15 at approximately 2:30 a.m., Joseph Camby reported to Hartford police that a light skinned black male named Mook had committed the murder. Subsequently, Hartford police located three eyewitnesses, Jeamah Smith, Christina Williams and Robert Copeland, who each independently reported that petitioner had been engaged in a drug transaction with an Hispanic male when a dispute arose, petitioner produced a gun and at close range, shot the victim. Even though all three witnesses had known petitioner for some period of time, Smith and Williams were asked to identify him from photo arrays and did so successfully.
At the habeas trial, Camby testified that he did not have personal knowledge of these facts but had received this information "on the street."
Copeland is also known by his street name Prince.
In the second case, on February 2, 2001, Germaine Killebrew, who was four months pregnant reported to Bloomfield police that her boyfriend, Mark Ryan, had repeatedly punched her in the face and head. The investigating officer observed numerous injuries to Killebrew including scratches, bruising and swelling. On a prior occasion a court had issued a protective order prohibiting petitioner from assaulting her.
On or about June 5, 2001, Sara Bernstein was appointed to represent petitioner in the criminal cases. Bernstein was admitted to the bar of the state of Connecticut in October 1980. From 1981-86, Bernstein was engaged in the private practice of law with concentrations in criminal defense and family law. From 1986-1995, Bernstein was an assistant public defender assigned at various times to geographical areas #12, 13 and 14. Sometime in 1995, Bernstein accepted a position as an assistant public defender in the Part A court in Waterbury and at some point thereafter transferred to Part A in Hartford. In 2002, Bernstein was appointed Public Defender for the judicial district of Hartford. At the time of her representation of petitioner, Bernstein had handled several thousand criminal cases.
At the outset of her representation of petitioner, Bernstein reviewed the police reports in support of probable cause and met with petitioner to ascertain his version of the events. Petitioner denied that he was the perpetrator and reported that two individuals who were wearing masks had shot the victim. Subsequently pursuant to the state's "open-file" policy, Bernstein reviewed the entire contents of the state's file, identified the relevant reports and statements and received copies thereof. Bernstein and her investigator, Robert Bushey, reviewed these materials and discussed them with petitioner.
Bushey is a former Hartford police detective.
Bushey then contacted all of the witnesses named in the police reports and all of the witnesses identified by petitioner and petitioner's family. Some of the witnesses identified by petitioner were, however, unable to be located because there was insufficient information about their identity. Petitioner also gave his girlfriend as an alibi, but the girlfriend's recollection did not corroborate petitioner's version. Additionally Bushey went to the scene of the homicide to investigate petitioner's claim that Smith and Williams were not in a position to overhear his conversation with the victim. While there Bushey spoke to persons who were present and those who lived in the area. None of these efforts, however, produced any exculpatory evidence.
After compiling and reviewing the results of their own investigation, Bernstein and Bushey met with petitioner to go over the state's evidence and the defense case. During this meeting, Bernstein reviewed all of the state's evidence, areas of possible cross examination and all possible defenses. Bernstein specifically told petitioner that their investigation did not turn up sufficient evidence to mount a third-party culpability defense in that there was no corroboration of petitioner's claim. Bernstein further told petitioner that in her opinion the state had "an extremely strong" case in that three eyewitnesses who were acquainted with petitioner would testify he shot the victim. Bernstein also told petitioner that if the matter were tried, there was a good likelihood petitioner would be convicted of murder and would receive a sentence of sixty years. When asked by Bernstein if petitioner wanted her or Bushey to do any additional investigation, petitioner responded no and thanked them for their efforts.
In all, Bernstein met with petitioner on fourteen occasions. Additionally she telephoned him on seven occasions and on other occasions mailed copies of the police reports, witnesses' statements, relevant statutes and a reported case concerning third-party culpability. On more than one occasion, Bernstein discussed with petitioner the contents of the police reports and statements and the applicable statutes. At petitioner's request, Bernstein also sent copies of the statutes to petitioner's mother.
Petitioner told Bernstein that he would be willing to accept a plea to manslaughter and a ten-year sentence. Bernstein presented this offer to the state's attorney who countered with an offer of pleas to manslaughter in the first degree with a firearm, possession of a firearm, carrying a pistol without a permit, assault in the third degree on a pregnant person, violation of a protective order and an agreed sentence of twenty-five years to serve. Bernstein discussed this offer with petitioner and petitioner's family, but ultimately petitioner rejected the offer. As a result, the matter was added to the firm jury list and the state's offer was withdrawn.
On October 18, 2002, petitioner's cellmate, James Harvey, also known as Maurice Smith, advised the state's attorney that petitioner had confessed to killing the victim. Harvey also expressed an interest in cooperating with the state. Despite this additional evidence, in early 2003, Bernstein's co-counsel, Michael Isko, was successful in getting the state to reinstate its offer of twenty-five years. Isko sent petitioner a letter to this effect and thereafter Isko met with petitioner at Northern Correctional Institution. After meeting with Isko, petitioner decided to accept the offer. On April 2, 2003, petitioner was brought to court for a plea hearing. Before petitioner was brought into court, Bernstein and Isko sat down with him to make sure he still wanted to accept the offer. After verifying that he did, Bernstein discussed with petitioner the advantages and disadvantages of a pre-sentence investigation. Since the plea agreement gave no sentencing flexibility to the court and since petitioner had a prior criminal history and other misconduct in his background, Bernstein advised petitioner to waive a pre-sentence investigation report.
On several prior occasions Bernstein and Isko had gone over the applicable statutes, the minimum and maximum penalties and the probable parole consequences of his plea.
Petitioner was then brought before the court and pleaded guilty to manslaughter in the first degree with a firearm, criminal possession of a firearm, carrying a pistol without a permit, assault in the third degree on a pregnant person and violation of a protective order. At the outset of the plea canvass the court, Solomon, J., told petitioner to inform the court if at any time he did not understand the proceedings. Thereafter the court advised petitioner of the elements of each of the crimes to which he had pleaded guilty, the minimum and maximum penalties for these crimes and the fact that these penalties could be made to run consecutive. The court further informed petitioner of the rights he was giving up by pleading guilty. In each instance petitioner assured the court that he understood these advisements. In response to the court's direct questions, petitioner further averred that he was satisfied with his attorneys' advice and assistance, that no one had threatened him or coerced him or put pressure on him to plead guilty, that the decision to plead guilty was his alone and that he was entering his pleas freely and voluntarily. The court then verified that petitioner understood the significance of an Alford plea and that petitioner was entering his plea to take advantage of an offer which he believed was in his best interest. Finally petitioner assured the court that he had understood all of the court's questions. Petitioner then waived his right to a presentence investigation and the matter was continued for the imposition of sentence. On April 23, 2001, the court imposed a sentence of twenty-five years for the conviction of manslaughter in the first degree with a firearm. All other sentences were made to run concurrent. The total effective sentence, therefore, was a commitment to the custody of the commissioner of correction for a term of twenty-five years to serve.
At the habeas trial, petitioner testified that Bernstein met with petitioner only a few times at court and that she came to the correctional center on only one occasion. Petitioner recalled meeting with Bushey at Walker Reception Center and with Isko one time at Northern Correctional Institution and one time at court. Petitioner admitted that Bernstein gave him copies of the police reports and statements of the three eyewitnesses, Jeamah Smith, Christina Williams and Robert Colepan, but claims that Bernstein never went over the contents of these statements with him. Petitioner now claims that there are numerous inconsistencies in these statements which could have been brought out at trial, but admits he never informed Bernstein of this. Petitioner further claims that he did not understand the reports and statements given to him by Bernstein but acknowledges that he never asked Bernstein to go over the reports with him. On cross examination petitioner conceded that prior to the murder, he was acquainted with Christina Williams and Jeamah Smith.
Also referred to at the habeas trial as Christina Smith.
At various times in the habeas trial, petitioner admitted having copies of the statements of Smith, Williams and Copeland. At other times he denied having such copies.
Petitioner testified that he told Bernstein he had been engaged in a game of craps with two acquaintances known as Dog and Wolf when two masked men exited a car and shot the victim. Subsequently Bernstein or Bushey told him that they had been unable to locate the individuals with whom petitioner was gambling. Petitioner further testified that Bernstein repeatedly told him he should accept the state's offer because he was guilty and because he would get sixty years after trial. Petitioner also admitted that Bernstein explained the probable parole consequences of a conviction for murder and for manslaughter.
With respect to the plea hearing, petitioner admits he knew he was going to get a reduced charge and a sentence of twenty-five years, but claims that he did not understand he was waiving his right to a pre-sentence investigation or "what else [he] was waiving." Petitioner now claims that but for his attorney's ineffective representation and inadequate investigation, he would have gone to trial.
Additional facts will be discussed as necessary.
DISCUSSION
Petitioner's sole claim is that he received ineffective assistance of counsel. More specifically, petitioner alleges that counsel failed to: properly conduct an adequate pretrial investigation; argue a motion to suppress the identification of the petitioner; properly advise the petitioner; and preserve petitioner's right to appeal. Petitioner avers that but for counsels' deficient actions or omissions, he would not have accepted the plea bargain and would have elected to proceed to trial and likely would have prevailed at such a trial.
At the time petitioner filed his pro se petition for a writ of habeas corpus, he had completed his sentence in CR01-550590. Given that petitioner had discharged from the sentence in CR01-550590 and that his allegations and the evidence adduced at the habeas trial are only directed at the representation he received in the manslaughter conviction, petitioner clearly is challenging only his conviction in CR01-550589.
"A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified Strickland's predjudice prong . . .
"To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness . . . A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases . . . To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, supra, 474 U.S. 59 . . . Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra, 466 U.S. 693-94 . . . The Hill court noted that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Hill v. Lockhart, supra, 59 . . . A reviewing court can find against a petitioner on either ground, whichever is easier . . ." (Citation omitted.) McClellan v. Commissioner of Correction, 103 Conn.App. 159, 161-62, 927 A.2d 992 (2007).
A.
Petitioner first alleges that Bernstein and Isko "did not conduct an adequate pretrial investigation of facts and witnesses in support of the state's case and the petitioner's defenses in that they failed to properly investigate the crime scene to determine if the witnesses could have heard what was being said as they claimed given the distance away they were, they failed to have their investigators question the witnesses about the photo array they were shown and/or the other methods used by the police to allow the witnesses to identify the respondent [sic] as the shooter and/or whether there was any evidence of the victim either having a gun and/or firing it." Petition, at p. 3.
As to the allegation that the investigation failed to properly determine if the witnesses could have heard what was being said as they claimed given their distance away, the evidence shows that petitioner requested that his attorneys investigate whether Smith and Williams were in a position to hear what the shooter said. Bushey thereafter spoke to all of the state's witnesses including Smith and Williams and also went to the scene. At the scene, Bushey spoke to persons who either were present or lived in the area. Despite these efforts, however, Bushey was not able to develop or produce any exculpatory evidence.
Given the foregoing, petitioner has failed to present any evidence in this habeas corpus proceeding that shows deficient investigation by counsel. Petitioner additionally has not demonstrated that there is a likelihood that discovery of such evidence, if in fact discovered through the investigation, would have led counsel to change their recommendation as to the plea. Thus, the claim premised on the failure to investigate must be denied.
Petitioner also alleges that counsel failed to have their investigators question the witnesses about the photo array they were shown and/or the other methods used by the police to allow the witnesses to identify the shooter and/or whether there was any evidence of the victim either having a gun and/or firing it. There was no evidence adduced at the habeas trial regarding these claims. The court will, therefore, deem these claims to be abandoned.
B.
The next basis for ineffective assistance of counsel is that counsel failed to argue a motion to suppress the identification of the petitioner by various witnesses and to argue that the photo array used was unduly suggestive. It is correct that a motion to suppress the identification was not pursued. The applicable standard that governs motions to suppress identifications is well established.
"[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances . . . To prevail on his claim [on appeal], the defendant has the burden of showing that the trial court's determinations of suggestiveness and reliability both were incorrect . . .
"Furthermore, [w]e will reverse the trial court's ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court's ruling . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of fact bound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error . . ." (Citation omitted.) State v. Randolph, 284 Conn. 328, 384-85, 931 A.2d 939 (2007) (en banc).
The evidence in this matter shows that three eyewitness — Smith, Williams and Copeland — were acquainted with petitioner prior to the murder. Simply put, there was no identification issue and no viable legitimate basis to suppress the identification. Moreover petitioner has failed to present any evidence that calls into question that either the identification procedures in general, or the array specifically, were unduly suggestive. Consequently, the petitioner has failed to prove that the identification procedures were in any way unreliable. Petitioner's defense counsel did not, therefore, render deficient performance by not pursuing a futile motion to suppress petitioner's identification.
The court additionally notes that counsels' decision not to pursue such a motion was very prudent trial strategy. Had counsel pursued such a motion with no likelihood of prevailing, petitioner's ability to resolve the matter by way of plea agreement with the sentence he presently is serving would have been doomed. Thus, counsels' decision not to pursue a motion to suppress that had no real potential of being successful evidences, contrary to petitioner's assertions, insightful trial strategy and effective representation.
C. CT Page 2347
Petitioner's next claim that counsel failed to properly advise him. Thus, according to petitioner, counsel "failed to fully and properly investigate the relative weaknesses and/or strengths of the state's case and/or relative weaknesses and/or strengths of the petitioner's defenses and mitigating factors and to explain the same to the petitioner, including, but not limited to, the claims of the witnesses to the shooting as to what they saw and heard, the unduly suggestive nature of the photo array shown to the witnesses, the failure to research the criminal history of the victim, the failure to obtain an autopsy report for the victim to determine if any drugs were in his system at the time of his death and to meet with the petitioner to go over the evidence gathered and they failed to explain to the petitioner the likely outcome of the case if it went to trial and the range of sentences the petitioner could receive and/or the process or [sic] preserving the right to appeal if the petitioner entered a guilty plea or if he went to trial and lost." Petition, at pp. 3-4.
The court has previously addressed the alleged failure to investigate the witnesses and will rely on that discussion and its conclusions. Bernstein credibly testified that she went over the evidence and defenses on numerous occasions with petitioner. At the outset of her representation of petitioner, Bernstein reviewed the police reports in support of probable cause and met with petitioner to ascertain his version of the events. Petitioner denied that he was the perpetrator and informed Bernstein that two individuals who were wearing masks had shot the victim. Bernstein reviewed the entire contents of the state's file, identified the relevant reports and statements and received copies thereof.
Bernstein and Bushey also met with petitioner after completing and compiling the results of their own investigation. Bernstein reviewed with petitioner all of the state's evidence, areas of possible cross examination of the state's witnesses and all possible defenses. Bernstein specifically told petitioner that their investigation did not turn up sufficient evidence to mount a third-party culpability defense in that there was no corroboration of petitioner's claim. Bernstein further told petitioner that in her opinion the state had "an extremely strong" case in that three eyewitnesses would testify petitioner shot the victim. Bernstein also told petitioner that if the matter were tried there was a good likelihood petitioner would be convicted of murder and would receive a sentence of sixty years.
Again, contrary to petitioner's allegations, counsels' efforts and the advice proffered in no way demonstrate deficient performance. Petitioner has not shown that counsel somehow failed to properly investigate, discuss the matter, explain the likely outcome if the matter proceeded to trial, and explain the range of sentences. As to the assertions that counsel failed to research the victim's criminal history and obtain an autopsy report or toxicology report, there was no evidence adduced in support thereof. The court deems these assertions to be abandoned. Lastly, the claim that counsel failed to properly explain to petitioner his right to appeal will be discussed below.
D.
Petitioner's fourth basis for ineffective assistance of counsel is that "they failed to contact potential defense witnesses and/or investigate what they would say if called to trial, including, but not limited to, an expert on photo array identification procedures." The court has already extensively discussed counsels' investigative efforts and has found nothing deficient. Any further discussion would only unnecessarily repeat what has already been said and lead to the same conclusion: the claim is without merit. As to the aspect of this claim pertaining to an expert witness on photo arrays, there was no evidence adduced at the habeas corpus proceeding relevant to this claim. Consequently, the court deems the claim abandoned.
E.
The fifth and final ineffective assistance of counsel claim is that counsel failed to properly advise petitioner of his right to appeal and preserve that right. The court deems this claim abandoned because there was no evidence adduced on this issue. Additionally, the court notes that petitioner has done nothing to meet the test established for this type of claim by Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), as adopted in Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000).
CONCLUSION
Based upon the foregoing, the court concludes that the petitioner has failed to meet his burden of proof under Strickland/Hill. The petition for a writ of habeas corpus is, therefore, denied. Counsel for petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.