Opinion
No. CV-01-0463994 S
October 27, 2003
MEMORANDUM OF DECISION
The petitioner ("Santiago") seeks a new trial in this habeas corpus case. The First Count alleges inter alia ineffective assistance of trial counsel. Count Two: ineffective assistance of first appellate counsel and Count Three: ineffective assistance of second appellate counsel.
Habeas counsel submitted a pretrial brief dated November 11, 2001 in which he outlined the procedural history of this case.
In 1993, the petitioner the defendant was charged with Murder of Fernando Ilarrazo on November 1, 1993. He was represented by the Public Defender's office ("PDO") throughout the course of his trial. He was represented by Pam Favreau ("Favreau") at his arraignment November 4, 1993 in the Superior Court Judicial District of Windham. He was later represented at trial by Mark Shapera and Matt Davis.
On March 21, 1994 petitioner waived his right to a Hearing in Probable Cause (HPC) based upon the State disclosure that they would be calling two witnesses discussed later in this decision. Petitioner was tried on diverse dates between February 6 and February 27, 1996. Petitioner was found guilty on February 27, 1996.
The murder occurred shortly before 11:00 p.m. on November 1, 1993 on Valley Street in Willimantic. Exh. 18 at 20-21. The appeal reported in 245 Conn. 301, 303 recited The jury reasonably could have found the following facts . . . On the night of November 1, 1993, the defendant (Santiago) had been drinking beer with Mark Aviles and Joanne Negron, fellow residents of the Willimantic YMCA. At some point, Aviles and the defendant left to purchase some marijuana. They encountered Fernando Ilarrazo, the victim, however because he felt he would be cheated defendant refused to buy from the victim. When Aviles and the defendant saw the victim later that evening, the defendant and victim "exchanged looks." The defendant subsequently told Aviles that he intended to shoot the victim. Aviles and the defendant walked to a pay phone where the defendant called a friend who lived in Willimantic. Aviles heard the defendant say that he was going to "do the mission" and that he needed a "piece" to do it. Aviles and the defendant walked back to the YMCA. The defendant asked Negron to telephone a taxi to take him to Windham Heights. He returned with a .22 caliber revolver, which he cleaned and loaded in Negron's apartment. Thereafter he left wearing a black hat, a full length coat, black pants and black boots.
Exhibits 1 through 26, Criminal Trial Transcript.
Shortly before 11:00 p.m. the victim was discovered by a police officer shot behind the ear and one to the right cheek.
The murder weapon was never discovered. There was testimony the victim was shot with bullets that came from a .22 magnum hand gun.
When the defendant returned that night Aviles asked him if he had killed the victim and the defendant replied he had. The next day Negron confronted the defendant about the shooting. The defendant told her that it was "something he had to do out of heart" and that no one told him to do it. (See State v. Santiago, 245 Conn. 301, 303, 304.)
One of the grounds raised on appeal in State v. Santiago was that the trial court improperly concluded that his waiver of a probable cause hearing pursuant to Connecticut General Statutes § 54-46a was valid because the State had failed to disclose certain allegedly exculpatory information necessary for the defendant to make a "knowing and intelligent waiver." Santiago, id. at 305, 306.
"Two days after the shooting the petitioner was interviewed in Spanish by the Willimantic police officer John Perez and state trooper Jose Claudio. Initially, the officers did not regard the petitioner as a suspect and he made no admissions. Exhibit 20 at 24, 80. Later in the day, however, the supervising officer informed Claudio that others had implicated the petitioner and instructed Claudio to place him under arrest. Id. at 122-24. After Claudio did so, he and Perez confronted the petitioner with the information that he had gone to Windham Heights to obtain a gun, and that on Valley Street, he had shot the victim in the back of the head and then, after the victim fell, shot him again. Id. at 38, 126. The petitioner nodded his head affirmatively and, at one point, said "si" or "yes" in Spanish. Id. at 38, 128.
On direct appeal, the Supreme Court rejected all the petitioner's claims except a jury misconduct claim. As to the latter, the court ruled that the inquiry conducted by the trial court was inadequate and remanded for further proceedings. State v. Santiago, 245 Conn. 301 (1998). After an additional hearing, the court denied relief. On further review, the Supreme Court affirmed the judgment of conviction. State v. Santiago, 252 Conn. 635 (2000)." (See Post-Trial Memorandum of Respondent, pages 1-5.)
The Post-Trial Brief of the petitioner dated August 15, 2003 filed August 18, 2003 as appears on record on page 1, footnote 1 stated: "Petitioner has also alleged in Counts Two and Three, that his two appellate attorneys, Jon Shoenhorn and Mury Zeldis failed to apprise his (sic) of this conflict of interest issue or to raise it during direct appeal. As the evidence at habeas trial was confined, at the court's request, to Count One of the Petition, Mr. Santiago will rely upon the appellate briefs filed on his behalf which speak for themselves, as to the failure of those attorneys to raise those issues."
Canning testified on all murder cases in his PD, he assigns two lawyers to the case for trial and he assigned Attorney Shapera and Attorney Matt Davis who was already in the PD office for the trial of this case after Favreau left. Two lawyers were assigned to better represent the client. Canning would screen the cases for assignment to a special PD. Canning said the PD office was small and all the PDs worked in one office but all conflicts were brought to his attention. They would talk about it and if there was a conflict of interest he would take appropriate action. Favreau would have to talk to Canning about any conflict of interest. There were not many murder cases in the PD office of Windham County.
In this habeas case the petitioner is relying upon the issue of an actual conflict of interest as opposed to a potential conflict of interest discussed infra.
The sixth amendment to the United States constitution, as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution both guarantee a defendant the right to effective assistance of counsel in a criminal proceeding. Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. This right applies not only to the trial itself, but to any critical stage of a criminal proceeding. Moreover, one of the principal safeguards of this right is the rule announced by this court that [a trial] court must explore the possibility of a conflict . . . when it knows or reasonably should know of a conflict . . . Because this right to conflict free representation applies to all critical stages of a criminal proceeding, the duty of a court to safeguard this right applies equally to all such stages . . . [including] a hearing on probable cause. [T]he remedy for a defective probable cause hearing is . . . a new probable cause hearing and a new trial.
State v. Gaines, 257 Conn. 695, 706 (2001) (internal quotations omitted and citations omitted).
Habeas Trial Testimony
In addition to matters already discussed above, the following testimony was elicited at trial.
The petitioner first called Pamela J. Favreau (Favreau) appointed to Public Defender's office (PD) of Windham County in 1990 which consisted of two public defenders, Favreau and Attorney Ray Canning (Canning) the supervising Public Defender. The petitioner (Santiago) was arraigned on November 4, 1993 charged with Murder of Fernando Ilarrazo.
Santiago alleges that he was rendered ineffective assistance of counsel in that they (the Public Defenders) failed to recognize, investigate and inform the petitioner of a conflict of interest. Namely that Paul Casanova (Casanova), Edwin "Pito" Mendez (Mendez) and Ray Soto (Soto) were represented by the PD office (later determined that Soto was not a PD client). Casanova and Mendez were "regulars," meaning that they were generally known in this small PD office of Windham County. Favreau testified that she had always wanted to work on a murder case and that she and Canning had a combined effort of working on the Santiago case. Favreau was not previously responsible for the Defense of Santiago. Canning was the supervisor of the PD office and "he called the shots as to how cases would be handled." (Tr. 14-14.) Favreau would run anything she was going to do by Ray Canning before she did it. Before the hearing in probable cause Favreau and Condon, who was the investigator, spoke with an assistant state's attorney when they were determining whether to waive the hearing. Some of the witnesses were probably transient but if "they held the hearing they would be stuck with their testimony at trial." (Tr. 14-15.) Favreau, Condon and Santiago met when they interviewed two witnesses expected to be called by the State. Condon and Favreau called Canning, they thought it was in their best interests to waive the hearing in probable cause (HPC). The two witnesses the State expected to call were Aviles and Negron both who testified at Trial.
Tr. 14-14. Trial transcript August 14, pg. 14. All references in this decision are styled T date of transcript and page number.
There were four courts that the PD's office of Windham County serviced. There was no check list for persons that the PD office represented. Favreau stated that the PD would represent somebody until it was determined there was a conflict and then a Special Public Defender (SPD) would be appointed for one of them after bringing it to the attention of Canning.
Favreau became aware that her PD office represented Casanova and Mendez after November 1993. It was sometime in March 1994 that Favreau became aware that at some point her office had represented Casanova and Mendez. Favreau was appointed a PD when the petitioner was first arraigned in November of 1993. The present claim for a new trial on the grounds of a conflict was never part of the direct appeal process. The petitioner placed in evidence 26 transcripts of the trial in chronological order.
Favreau knew that Casanova was going to be their witness at the HPC. She was not his PD but he was a client of the PD office with open files but none directly related to the Santiago case.
Counsel for petitioner and the respondent both argue the issue of prejudice in Cuyler v. Sullivan, 446 U.S. 335. The petitioner agrees with the State that "[p]rejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708 64 L.Ed.2d 333 (1980). Petitioner argues that representation of conflicting interests is per se ineffective assistance of counsel. Attorney Longstreth, counsel for respondent, stated (Tr. 14-63) that Cuyler holds the petitioner does have to show more than an actual conflict. He has to show that this conflict adversely affected the representation.
Favreau testified that when the Santiago matter came into the PD office, Casanova in fact was a client of the public defender's office. "There were certain allegations made by the State that led us to believe that maybe other clients in our office were potential witnesses in this case, and I say potential at that time. There was much trouble in getting disclosure from the State. The state's attorney's office fought us tooth and nail to get information out of their file concerning this case. As a result they also moved for a protective order. At the time they moved for that protective order and all the way up until that time, I thought that although Paul Casanova was a potential witness, and in fact I was going to use him as a witness, and he was a public defender client, I don't think that his interests were different than my client. Mr. Santiago's were. I didn't think that the dual representation at that time constituted a clear conflict because some of the things that Mr. Casanova would have testified to and did testify to at the protective order hearing were helpful to Mr. Santiago. Again, we didn't have all the information that the state had; they withheld much information. There was a constant battle in this case." Judge Rittenband ordered the state to hand over its file or he would dismiss the murder charges. At that time the file was handed over. (See Exhibit 11, dated August 4, 2002.) Judge Rittenband directed our attention to investigate someone who went by the code name Batman. (Tr. 14-67.) On page 26 of Exhibit 11 it was disclosed that Paul Casanova had threatened to shoot Fernando Ilarrazo, the victim in this case. Casanova went by the name "Batman."
It was not known to Favreau until September 2, 2002 that Casanova had threatened to shoot the victim. Favreau resigned from the PD office to go into private practice March 1995 but continued to work there up to April 1995.
After learning about the information regarding Casanova, both Favreau and Condon informed Canning of this new development. (Tr. 14-71.) Favreau stated Casanova needed to be investigated. That it now presented a conflict.
Favreau had to bring the problem to Canning because he was in charge and if something needed to be assigned to an SPD he was the one with the authority and experience as to who to assign to the case. Favreau was not privy to who would handle the case or what information was obtained about Casanova. Mark Shapera tried the case. He had replaced Favreau when she left the PD.
Favreau disclosed that everybody (Casanova, Mendez and Soto) was accusing everybody else of shooting the victim, all of which was rumors or street talk. Favreau was pressing to look at the State's Attorney file to see if there was any exculpatory evidence for Santiago. By August 1, 1994, Favreau was merely aware that Casanova, Soto and Mendez were somehow involved in an admission of guilt by somebody in this case, apparently Raymond Soto. (Tr. 14-94.) By August 1, 1994 at least Favreau was aware that there was finger pointing by Casanova and Mendez and that Soto came into the picture through Canning and Condon's investigation. Favreau knew of the threatening through her investigation and she brought it to the attention of Canning. Exhibit 27 shown to Favreau dated August 1, 1994, the PD office was still working on the problem whether there was an actual conflict. Favreau said after the September hearing before Judge Rittenband she felt we need to get rid of it. Favreau continued to work at the PD office from September 2, 1994 to April 1995 but did not work on the Santiago case except to appear before the court to request continuances. Favreau appeared in court three times up to September 30, 1994. It was on September 2, 1994 that Favreau stopped doing anything on the file of Santiago and referred everything to her supervisor, Canning. Her only participation had to do with the psychiatric examinations that were going on for Santiago and to ask for a continuance for that purpose. (Tr. 15-5.)
Favreau after September 2, 2002 felt that Casanova had to be investigated and that Condon would have done that. Favreau did not keep a separate file on the Santiago case because everything was kept in one file and everybody used that file in such a small PD office.
Favreau worked for the PD office for three years after she was admitted to the bar, when she began working on the Santiago case. According to the State, the murder in the case against Santiago was gang-related. Favreau had no information that Casanova, Mendez or Soto were related to the Santiago case when she started working on it.
In February 1994, prior to the HPC, state attorney Stabile informed Favreau that he was going to put on just two witnesses, none being either Soto, Mendez or Casanova. And prior to the HPC Favreau had no thoughts that there was a potential third-party culpability defense concerning Casanova, Mendez or Soto.
Of the two witnesses to be put on by the State in the HPC, one was a state informant and the other a young female who with her child wanted to leave the area. Favreau felt if she allowed the HPC to go forward that they would be stuck with their testimony but if they disappeared it would hurt the State's case. She ran by the testimony that would carve out with Attorney Meisler whom she had worked for as an intern before taking the bar examination.
Favreau admitted that her advice to Santiago was to waive the hearing in the hopes that the witnesses would disappear and was not influenced in any way by her relationships with Soto, Mendez and Casanova. Favreau admitted that in a situation like where she was uncertain about a conflict, the practice of the PD office was to wait to see if there was an actual conflict. Because Favreau did not have the information about Casanova she had no reason to disqualify the PD office. After the September 2, 2002 hearing she was waiting for Canning "to determine whether we were going to farm the case out or not." (Tr. 15-26.) The trial of the case started about February 1996.
On redirect examination of Favreau she stated that she did not know of the Casanova threat until the HPC.
Raymond Canning worked part time as a PD in 1974, after graduating from law school about 1969. In 1989 he became a full-time PD. In 1990 he hired Pam Favreau as a per diem employee. She became full time after she passed the bar. After Favreau left he hired Mark Shapera, the PD for juvenile court in Willimantic. The staff consisted of Canning, Attorney Davis, Favreau and part-time staff. No one person represented one client. There were no barriers in representing clients and if there was a conflict of interest with an attorney in the office it was a conflict of interest for the entire office. Canning remembers having represented at some time Casanova, Mendez and Soto. (Exhibit 30.) Casanova was represented by the PD office from 1990 and up to at least August 1993. Casanova was arrested several times and represented by the PD office. (See Exhibit 30.) Canning does not recall representing Soto and came to his attention only through the Santiago case. His information about Soto was that he had either been arrested or that somewhere near Soto a gun had been found. Soto just had fines so he either represented himself or had other attorneys.
The PD also represented Mendez from 1990 through April 1999.
Canning appeared with Santiago on November 4, 1993 at the arraignment and was appointed by the court for Casanova prior to November 4, 1993. Casanova had charges of assault 3 of an arrest on August 30, 1993 disposed of March 8, 1994. (Exhibit 30.) At the time of arraignment of Santiago, Canning did not have any discovery from the state yet. Up until November 4, 1993 there was an open file policy of the State. In fact the PD office worked from the State's file. (Tr. 15-45.) State's Attorney Solak determined on the Santiago case that there would not be an open file. Canning believed it was because he had assigned Favreau to the Santiago case and there was a personality conflict with her and Attorney Caridad, the assistant state's attorney, assigned to the Santiago matter. In order to get any information from the State a motion had to be filed. (Tr. 15-47.) Canning appeared for Santiago on December 3, 1993, January 14, 1994 and including February 16, 1994. On February 16, 1994 (Exhibit 4), Canning appears on record for the HPC, the date of the waiver. (Exhibit 4.) Santiago was canvassed and waived the hearing knowingly and voluntarily having been fully canvassed by the court, Rittenband, J., February 16, 1994.
Canning testified he did not recall whether Santiago was present when he discussed the waiver and that he was aware that Favreau discussed the matter with Santiago. Canning could not recall whether he had an actual or telephone conversation with Favreau and investigator Condon, and that they had met with the two witnesses that the State was going to use in the probable cause hearing; and that he stood up with Santiago during the waiver hearing but he was sure he told Santiago what he was doing on that date.
Canning had heard about Casanova before the waiver. (Tr. 15-52.)
BY MR. CHAPMAN:
Q What did your work on the case or the work of any of your staff members reveal about the — or review of any discovery reveal about the involvement of Mr. Casanova up to February 16th, the day of the waiver?
A I don't have any actual recollection of what we knew, but I can tell you that on the day of the arraignment when Mr. Santiago was first in court on whatever day you mentioned in that transcript I stood up with him at arraignment. Individuals came to see our investigator, at that time a former homicide detective from New York City, Ray Condon, was working for our office. He was acting as our investigator. Individuals came to see him to report that others may have been involved, may have had motive, may have had a number of other incident-involvement in the case. Whether they were involved through actual participation, threats, conspiracy, I don't recall what that was. But it was right on the day of Mr. Santiago's arraignment the names of Ray Soto and Paul Casanova came up.
Canning heard from his investigator triggered him to do what he felt was a conflict check. Canning testified they continuously look during a case as best they can as to whether there is an actual conflict or a potential conflict. Since the PD office in Windham represents between 1,200-1,600 cases a year, a vast number of people come through the court system and if each one was disqualified because they represented someone presently or in the past "they are compelled to scrutinize the cases to see if there is an actual conflict or whether something will develop or it may go away."
Canning red flagged the Santiago case at that point as to what type of conflict. Canning said he knew Casanova and knew who Soto was so there was nothing for him to check. Now with the advent of computers, the PD office can check, but before it was a collective memory type of system.
Condon, the PD investigator, went out within 24 hours to check the threats Paul Casanova made. The PD office had an inkling as to Casanova's threats but did not fully investigate it until Judge Rittenband's hearing on September 2, 1994. (Exhibit 11.)
Canning felt that prior to Judge Rittenband's ruling ordering discovery released that the PD did not have an actual conflict. If the two people are arrested in the same circumstances, the case is scrutinized and if there is going to be finger pointing at one another they are referred out immediately. Canning classified the Santiago case as one in which they represent one individual and in unrelated matters we have represented other clients who sway the witnesses for or against the present client. (Tr. 15-63.) Condon, their investigator, went out immediately and investigated the leads. Condon reported to him about the rumors of the others and reported back to him. Soto who was not the PD client was also investigated. Condon did everything he could to develop a third-party culpability defense. Canning never felt that the information he had available went beyond a potential conflict. (Emphasis added.) Prior to the HPC waiver as to his knowledge, in no way was Santiago's representation compromised. After Favreau brought to Canning's attention the issue of a conflict he did not believe it rose to the level of an actual conflict. Right up through the trial Condon "beat the bushes on this case" to develop any possible leads for potential defenses.
Nothing was done in the PD office to protect the interests of the other three named individuals. The three individuals had no involvement in this case according to Canning. Canning was shown petitioner's Exhibit 31, a report of police officer David Stoddard. Canning nonetheless still felt it did not demonstrate an actual conflict with Casanova because it was not made to the police officer but two women said they heard it. At best it had to be investigated. Having the Stoddard report before the HPC would not have changed his advice to waive the HPC.
Mark Shapera, trial counsel, first became a public defender in April 1995 and knew that Favreau, who was no longer in office, had handled the Santiago case before, along with Canning. Canning never discussed with Shapera the subject of a potential conflict. (Exhibits 31, 32, 33 and 34.) Statements concerning Casanova, Mendez and Soto made Shapera aware that they were past clients of the PD office. Shapera was aware that the three named parties were part of the investigation. Shapera had an extensive career in the law from 1978 to 1986 when he joined the PD office.
Shapera testified (Tr. 11-57) that he did not find anything that could have been used to connect Casanova to the crime. At the time of trial the state filed a motion in limine to introduce evidence as to third-party culpability that they established in accordance with State v. Echols, 203 Conn. 385, that any of the third parties, Casanova, Mendez or Soto, could pass the Echols test. Shapera felt that he did not have enough for Casanova or Mendez but a possibility as to Soto who was never a client of the PD office. There was weakness to that evidence. The weakness to any claim of third-party culpability was that the taxi driver brought Santiago to the housing complex to get the "piece."
Shapera also focused on the statement of Paul Nelson to discredit the state witnesses as to the identity of the shooter.
Shapera went over what he adopted as trial strategy with Santiago and he agreed as to the strategy taken.
Shapera, for himself, never held back on his investigation of Casanova, Soto or Mendez. The PD office, although it had represented Casanova and Mendez, did not affect Shapera's strategic decision to make Paul Nelson the centerpiece of the defense. (Tr. 11-67.)
Under Echols, a defendant may introduce evidence which indicates a third party, and not the defendant committed the crime with which defendant is charged. However it is not enough to show another had motive to commit the crime. There must be some evidence to connect the third party to the crime.
The petitioner next brought to testify Attorney Ira Grudberg of New Haven, Connecticut, a well known lawyer in the criminal trial practice. The court allowed Attorney Grudberg to testify as to his experience with the practice of criminal law as to what he would do in situations regarding a question of conflict of interest. Attorney Grudberg was qualified as an expert in criminal procedure. (Tr. 11-90.)
Grudberg testified that if he represented Santiago, and the other three were clients of the office, or had been clients of the office, there is no way he could continue in his representation because he would not disadvantage his other clients. Grudberg could not represent Santiago because he could not vigorously defend Santiago having the other three that he represented or someone in his office represented. "Santiago would be entitled to full loyalty, not loyalty diluted by inability to go after other clients in his office." (Tr. 11-97.)
Under cross examination of Grudberg it made no difference that once you had a relationship of representing a client, even in the past, or a member of your law firm, you should extricate yourself. In this case the three other parties were "rolling stones." They came back once a year or so, based upon their rap sheet.
After the testimony of Grudberg the petitioner rested.
Attorney Longstreth called Wesley Horton ("Horton") who had practiced over 20 years doing mostly appellate work. Since 1977, Attorney Horton has chaired the Professional Ethics Committee of the Connecticut Bar Association for the past 5 years. Horton has given speeches and written articles on professional ethics. He testified in matters on ethical issues. The court recognized Horton as an expert in the field of professional ethics.
The rules of professional conduct were adopted in 1986 based largely on the model rules adopted by the American Bar Association in 1983.
The judges of the Superior Court for Connecticut adopted their rules that govern lawyers' professional ethics in 1986.
Rule 1.7 simultaneously governs representation with clients and adverse interest. Horton discussed rule 1.7 that provides two sections (a) and (b). Rule 1.7a applies to direct conflict of interest between two clients' right at the same time that basically would have to do with the same case. Horton did not believe that Rule 1.7a has anything to do with this case. Rule 1.7(b) is the rule that applies in this case.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Horton states that Rule of Professional Conduct (Connecticut Practice Book, 2003) 1.7 is the rule Grudberg was testifying about when Grudberg used the word "vigorous" which he agrees with. Horton agreed that Rule 1.7(b) applies to actual conflict as well but went on to say that when a lawyer receives information that there may be a conflict between current clients, but he is not sure if his representation is going to be affected or limited, he would deem that a potential conflict. Horton pointed to Loyalty to a client, commentary on the rule and opined the crucial language does not preclude representation and that in 1.7b the lawyer has to decide whether a potential conflict is a real conflict and that means the lawyer has to do whatever the lawyer can to determine it is a real conflict by looking into it to see if it is a real conflict which is a two-step process: B-1 and B-2: Will it affect what I am doing and do I have the client's consent? Horton opined that you have to assess the likelihood that "it's going to have an effect." If it was a former client then Rule 1.9 applies and unless it is related to the present case a lawyer has a right to attack the former client.
Horton stated that if a client is interviewed by the police in an investigation that client is a potential conflict. If his case is disposed of then he is no longer a client and Rule 1.9 kicks in so there is no conflict. Only if the former client told you something about the murder case to incriminate him does that then become a conflict. Accordingly, former clients can be used as witnesses so long as you no longer represent them.
In the Santiago case from the explanations given by Horton, Casanova was a potential conflict at least, and the lawyer must do something about it to see if it is going anywhere and if it may become an actual conflict. Seeing a client riding on a bicycle such as Mendez is a potential conflict and something he would have to look into.
Horton was unable to inform the court of any decisions in Connecticut addressing the issue of conflict of interest with regard to a potential third-party suspect.
Horton on cross examination, that on finding an actual conflict exists, a lawyer must withdraw unless Rule 1.7(b)1 and 2 is complied with. A lawyer may still stay in the case if he can do the job right and the client consents. But if a lawyer does not have 1 and 2 the person has to go out.
The State did not discuss with Horton all the intended facts of this case to permit Horton to give an opinion in the Santiago case. A statement coming from a third party about a public defender's client does not render it an actual conflict.
Once a client's case has gone to judgment he is no longer a client of the lawyer but a former client.
Horton did agree with Grudberg that an attorney owes a duty of loyalty to his client. Also that an actual conflict of interest impairs that duty of loyalty.
The petitioner argues with the State that "[P]rejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected the lawyer's performance. Cuvler v. Sullivan, [ 446 U.S. 335, 348-50, 100 S.Ct. 1708 64 L.Ed.2d 333 (1980)]."
Petitioner argues that in Glasser v. United States, 315 U.S. 60, 92, 62 S.Ct. 451, 475 86 L.Ed. 680 (1942), the court concluded that Glasser's lawyer had an actual conflict of interest it refused "to indulge in nice calculation as to the amount of prejudice" attributable to the conflict. The conflict itself demonstrated a denial of the "right to have effective counsel." Glasser at 76.
CONCLUSION
Petitioner argues that he is entitled to relief because his attorneys were divided between competing interests of clients (Mendez and Casanova) which prevented his attorneys from presenting the plausible alternative defense of third-party guilt. Petitioner argues that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interest. (Emphasis added.)
This court concludes from all the evidence adduced at trial that the three "parties suspects" claimed by the petitioner was a potential conflict but had not risen to an actual conflict.
Trial counsel (Shapera) had determined that the best theory of defense was to raise a reasonable doubt at trial based upon the testimony of Paul Nelson. The third-party culpability would not be likely to pass the Echols test. Shapera believed the third-party suspects would backfire.
Condon had thoroughly investigated the third-party culpability and was unable to establish such a defense.
Shapera had considered testimony of one Janice Wilson but had grave concerns about her credibility. Wilson maintained the victim had been shot at a remote location and his body was dumped from a car by several persons including Casanova.
Shapera shaped his defense strongly on Nelson because he was an innocent bystander. Shapera did not do anything to protect the interests of either Casanova or Mendez.
Horton recognized that law firms commonly follow "office rules" that are more stringent than Rules of Professional Conduct.
This court agrees that the professional rules in this case were more aptly applied to a finding of potential conflict rather than actual conflict.
"Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where, however, the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests . . . In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance . . ." Phillips v. Warden, 220 Conn. 112, 132-33, 595 A.2d 1356 (1991).
CT Page 11760 Mercer v. Commissioner of Corrections, 51 Conn. App. 638, 643.
Santiago has not met his burden of proof of a sixth-amendment violation because there is no showing in his case that counsel represented actual conflicting interests and that counsel's performance was adversely affected.
Few cases in Connecticut address the issue whether an actual conflict of interest arises when representing one client and that client implicates another client or former client. In State v. Wilson, 203 Conn. 159 (1987), the Supreme Court upheld a waiver by the accused when brought to the attention of the trial court. The court in Williams declined to hold joint representation and third-party lookalike an actual rather than a potential conflict. ( Id. at 168, n. 7.) In the Williams case, it was brought to the attention of the court about a potential conflict and the court correctly questioned the accused. Shapera had made a decision about trial strategy. Respondent argues that counsel cannot be faulted for not presenting a third-party culpability defense because under the holding in Strickland, the court should not second guess counsel's strategy. Although even if Casanova had threatened to shoot Illaraza the evidence would not have been admissible under the Echols test suggesting third-party culpability. Also Wilson's version was found not to be credible by Shapera and the statement by La Boy that the victim was in an automobile containing five persons including Santiago, that Santiago was the shooter further reduced the Janice Wilson information.
Mendez had returned the bike before the shooting which would dilute any testimony by the Marcano's statement. (Exhibit 36.)
Respondent argues that suggesting other suspects was weak and inconclusive and in view of the Aviles and Negron testimony depicting Santiago as the shooter; declaring his intent to do the shooting; getting the gun by taxi and returning stating that he had done it; Santiago's admission to the police and Paul Nelson's description of the shooter; the use of a .22 caliber revolver; Negron's description of the gun borrowed being consistent with a revolver and the testimony of the taxi driver that he drove Santiago from the Y.M.C.A. to Windham Heights convinces this court that Santiago has failed to show any prejudice.
To establish ineffective performance, a petitioner must show that counsel's representation "fell below an objective standard of reasonableness"; in Strickland v. Washington, 104 S.Ct. at 1064-65, thereby overcoming the "strong presumption that the counsel's conduct [fell] within the wide range of reasonable professional assistance." Cooper v. Commissioner, 53 Conn. App. at 496, quoting Stafford v. Warden, 223 Conn. 180, 193 (1992). To be constitutionally ineffective, counsel must have made errors so serious that it cannot be said that he or she was functioning as the counsel guaranteed by the sixth amendment. Copas v. Warden, 30 Conn. App. 677, 683 (1993), quoting Strickland v. Washington, 104 S.Ct. at 2064.
There has been no showing that counsel violated any professional rules of ethics in the representation of Santiago.
Petitioner has not met his burden of proof that there was an actual conflict. Santiago's constitutional rights to effective assistance of counsel were not violated in this case. Other claims alleged in the First Count as to ineffective assistance are also not supported by any evidence. Counsel's conduct fell within the wide range of reasonable professional assistance.
Respondent argues as to the Second and Third Counts as follows:
The petitioner was represented in his initial appeal by Jon Schoenhorn, a private attorney who is not associated in any way with the public defender's office. Exh. 40. Thus, the underlying premise of the petitioner's conflict of interest claim — that the public defender's office represented multiple suspects in the same crime — is lacking with respect to Schoenhorn.
The petitioner was represented in the remand phase of the appeal by Martin Zeldis, who was associated at the time with the Office of the Chief Public Defender, located in Hamden. Exh. 41. Zeldis therefore had no conflict because he was not part of the same "firm" as the Windham County public defender's office for purposes of imputed disqualification under Rule 1.10. State v. Webb, 238 Conn. at 419-21.
The petitioner further claims that appellate counsel should have raised the conflict of interest claims on appeal. This contention is meritless. The record of the criminal trial contains none of the facts pertaining to the alleged conflict of interest. Thus, had the claim been raised, the Supreme Court would have rejected it or declined to review it See e.g. State v. Gaines, 257 Conn. 695, 712 (2001) (rejecting conflict of interest claim based on inadequacy of actual record). Additionally, Zeldis could not have raised a conflict of interest claim on appeal because the issues in the remand stage of the appeal had been narrowly limited by the Supreme Court to the question of whether a juror had used ethnic slurs and if so, whether the petitioner was prejudiced. State v. Santiago, 252 Conn. 635 (2000).
Accordingly, petitioner's claim for a new trial is denied.
Frank S. Meadow, J.T.R.