Opinion
CV154007330S
05-18-2017
Steven Stanley v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Steven Stanley, represented himself in a jury trial that resulted in a judgment of conviction for 100 counts of violating a criminal protective order; stalking first degree; and threatening second degree, for which crimes he serves a total, effective sentence of eighteen years imprisonment, followed by twelve years special parole and a standing protective order. The Appellate Court affirmed the judgment of conviction on direct appeal, State v. Stanley, 161 Conn.App. 10, 125 A.3d 1078 (2015); cert. denied, 320 Conn. 918, 131 A.3d 1154 (2016). Attorney Deborah Stevenson represented the petitioner for his direct appeal.
The petitioner, again appearing pro se, had filed an earlier habeas corpus action that was denied, Stanley v. Warden, Superior Court, Tolland Judicial District, d.n. CV 13-4005408S, (March 11, 2014), and the Appellate Court dismissed his appeal from that adverse decision, Stanley v. Comm'r of Corr., 156 Conn.App. 903, 110 A.3d 549 (2015).
In the present habeas case, the petitioner alleged sundry grounds for relief, and the court previously dismissed all but one ground, Stanley v. Warden, Superior Court, Tolland Judicial District, d.n. CV 15-4007330, (November 4, 2016). The sole remaining claim asserts that the petitioner's appellate lawyer, Attorney Stevenson, provided ineffective assistance. The court tried this matter on April 27 and May 12, 2017, and makes the following findings of fact and rulings of law.
Our Appellate Court concisely summarized the evidence that supported the jury's verdicts.
" On March 18, 2012, the victim called the police to report that the defendant was violating the protective order by telephoning her constantly. East Hartford Police Officer Robert A. Vanacore responded by going to her residence and taking her statement. Later that day, the victim called the police a second time; she then reported that the defendant had appeared in front of her house, and, " burn[ing] rubber, " drove his motorcycle away at a high rate of speed. The victim's roommate, Gene Lavigne, also gave a statement to the police, confirming that the defendant had driven his motorcycle by the house. While police were interviewing the victim, the defendant called and spoke to her three times. The victim put the cell phone on speaker so that East Hartford Police Officer Daniel Zaleski and Vanacore were able to overhear the calls.
Vanacore sought and obtained the defendant's phone records. After reviewing the records and discovering that approximately 1, 750 phone calls from the defendant's cell phone to the victim's cell phone had been made between February 14, 2012, and March 24, 2012, Vanacore requested an arrest warrant for the defendant." State v. Stanley, supra, 13-14.
" In support of the charges, the state presented the testimony of the victim, who received the calls, police officers who overheard one of the threatening phone calls, and the victim's phone records. The jury had before it evidence of more than 1, 750 calls made from the defendant's cell phone to the victim's cell phone. The jury also heard evidence regarding the failed relationship between the victim and the defendant, and his previously threatening behavior. The victim identified his voice on three phone calls made on March 18, 2012. The defendant also wrote letters to family members advising them to testify that they had made phone calls to the victim. The jury reasonably could have inferred from this evidence that it was the defendant himself who made all of the phone calls reflected in the victim's phone records. None of the defendant's witnesses testified that they made many of the calls from the defendant's cell phone, as he contended, " Id., 16-17.
The court recognizes that pro se litigants often draft pleadings with imprecision, redundancy, and rambling prolixity, and this petitioner follows suit. After examining the amended petitions, the motions to amend the petition, the memoranda submitted therewith, and the petitioner's final argument, the court discerns the following specific allegations of substandard performance by Attorney Stevenson. That she failed to raise as appellate grounds:
1. that the petitioner's phone records were illegally seized, in violation of his constitutional rights;
2. that his arrest warrant lacked probable cause, thereby tainting the seizure of evidence obtained thereafter;
3. that the use of that evidence by the prosecution at trial violated his due process rights;
4. that the victim's phone records were really those of her former boyfriend, Paul Springs;
5. that Judge Carl Taylor ought to have recused himself from ruling on any motions because Judge Taylor issued the flawed arrest warrant;
6. that the trial judge erroneously excluded Paul Spring's testimony;
7. that the trial judge erroneously excluded a written recantation authored by the victim;
8. that the prosecutorial team engaged in witness intimidation;
9. that Judge Taylor denied the petitioner's request to disqualify and replace a biased juror; and
10. whether telephone calls that the victim did not answer violated the criminal protective order.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that habeas counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome. DaEira v. Comm'r of Corr., 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id.
Also, as to appellate representation, the prejudice component of the Strickland standard refers to the outcome of the appeal, rather than that of the criminal trial, Small v. Comm'r of Corr., 286 Conn. 707, 723-24, 946 A.2d 1203 (2008). Therefore, the petitioner bears the burden of demonstrating, by a preponderance of the evidence, that, but for Attorney Stevenson's purported deficiencies, there exists a reasonable probability that the result of the petitioner's direct appeal would have been more favorable, Iovieno v. Commissioner, 242 Conn. 689, 694, 699 A.2d 1003 (1997); apparently overruling, sub silentio, Fisher v. Commissioner, 45 Conn.App. 362, 367, 696 A.2d 371 (1997); a case that had, two months earlier, incorrectly ruled that the preponderance of the evidence level of proof was inapplicable to the prejudice prong of Strickland . This court, of course, is bound to follow Supreme Court precedent rather than conflicting Appellate Court caselaw.
Analysis of the prejudice component in this case has been significantly circumscribed because the petitioner's own legal expert, Attorney Jeffrey Kestenband, testified that he could only identify three potential inadequacies by Attorney Stevenson that gave rise to a reasonable probability of a different outcome for the petitioner's direct appeal; namely, 1. the refusal to admit the victim's written recantation into evidence; 2. the denial of disqualification of a juror for bias; and 3. whether a defendant can be found guilty of violating a criminal protective order like the petitioner's where the protected person does not answer the putative telephone calls. Because no other credible testimony bore on the satisfaction of the prejudice aspect of the Strickland test, the court need only address that issue directly as to these three specifications of ineffective assistance.
Attorney Kestenband stressed that his first and second opinions regarding a more favorable outcome were entirely premised on the existence of the factual hypotheticals described to him by the petitioner. Attorney Kestenband acknowledged that he never read the complete transcripts of the petitioner's criminal trial nor did he ascertain whether the hypotheticals so described matched the trial records.
Therefore, the first order of business for this court is to determine whether the scenarios assumed by Attorney Kerstenband comport with the actual events that occurred at that criminal trial and related proceedings. Unfortunately, the petitioner never offered into evidence the full transcripts of that trial. Of particular importance, is that he failed to produce the trial transcripts pertaining to the portions of those proceedings which were relevant to his claim regarding the failure to admit into evidence the victim's written recantation or of the trial judge's refusal to replace the purportedly biased juror. These evidentiary gaps undermine the petitioner's contentions.
The court is aware that Practice Book 23-36 allows a party to request that the habeas court take judicial notice of the transcripts of the criminal proceedings and the appellate and trial records. However, the petitioner chose to offer into evidence only selected portions of the transcripts bearing on other issues but declined to offer or request that this court take judicial notice of the appropriate transcripts pertaining to his claims regarding the exclusion of the copy of the written recantation and the denial of his request to replace a juror. Under these circumstances, the court will eschew considering, sua sponte, unavailable court transcripts that the parties chose not to offer or produce.
Attorney Stevenson never raised such claims on appeal. The petitioner called Attorney Stevenson as a witness in this habeas case, but he never inquired of her regarding why she decided to pursue other grounds instead. In the absence of credible evidence, the court finds no support to believe that the events unfolded in precisely the manner hypothesized by the petitioner. The court decides that the petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that there exists a reasonable likelihood of a better outcome of his appeal had Attorney Stevenson pressed these claims.
As to the exclusion of the victim's written recantation by the trial judge, the hypothetical presented to Attorney Kerstenband suffers from the same evidentiary malady. This court has no way of knowing how the trial judge ruled nor on what basis. The petitioner avows that the trial judge disallowed the document because the copy had the petitioner's markings on it. Did the petitioner have the opportunity to offer a clean copy? No one can tell without a review of the record, which the petitioner chose not to offer at this habeas trial.
More importantly, the trial court allowed the petitioner to cross examine the victim about her recantation. Apparently, she agreed she authored such a retraction of her allegations against the petitioner, but she explained that she did so because the petitioner pressured her to do so and not because those allegations were false. The trial judge instructed the jury as to the proper use of the victim's prior, inconsistent statement as bearing on her credibility or lack thereof.
Clearly, the trial court permitted the petitioner to put before the jury, the fact of the victim's retraction. The victim conceded that recantation, but the jury obviously believed her explanation for producing it. That concession, therefore, belies the petitioner's assertion that, the trial court's ruling harmed him. The court determines that the petitioner has also failed to satisfy his burden of establishing, by a preponderance of the evidence, the prejudice component of the Strickland test as to the outcome of his appeal but for the failure of Attorney Stevenson to raise this issue.
The final issue pertaining to prejudice arises from the petitioner's contention that the crime of violation of a criminal protective order, as set forth in General Statutes § 53a-223, that also prohibits telephone contact, is completed only when and if the protected person answers the call. The petitioner's expert, Attorney Kerstenband, expressed concern that unanswered telephone calls to the protected person initiated by the person restrained by the order might only constitute an attempt to violate the order. The victim in the petitioner's case answered two or three of the petitioner's hundreds of calls to her. Understandably, she avoided answering calls she suspected were made by him.
The court holds, as a matter of law, that, where a court has issued a criminal protective order, under General Statutes § 46b-38c(e), that specifically enjoins a defendant from contacting another by telephone and that defendant defies the order by intentionally initiating a telephone call to the protected person, the defendant has committed a violation of that protective order whether or not the protected person answers. Section 46b-38c(e) mandates that a defendant refrain from harassment or intimidation of the protected person, and the protective order may include those provisions necessary to protect the victim of a family violence crime.
The protective order placed upon the petitioner specified, inter alia, that he must not abuse, harass, or interfere with the victim nor may he contact her " in any manner, including by . . . telephone contact." As the Appellate Court noted, the " jury had before it evidence of more than 1750 calls made from the [petitioner's] cell phone to the victim's cell phone, " State v. Stanley, supra, 16.
One can suffer abuse, harassment, and be interfered with by the actions of another simply through knowledge that the miscreant is persistent in his unlawful pursuit of the victim, even though the victim is able to elude the pursuer's efforts. The dread and consternation induced by the unrepentant caller's usurpation of the victim's telephone line. despite imposition of legal restraint by the judicial authority, and the willingness of the caller blithely to breach the court's orders, certainly can be regarded as abuse, harassment, and interference. The effort to call, in itself, is intimidating, provocative, and potentially mortifying.
Whether the protected person recognizes the source of the call or refuses to accept the call, lest the caller be the defendant, is immaterial. The primary purpose of the protective order, to insulate the victim from the caller's reach, would be thwarted under the petitioner's interpretation.
Violation of a protective order under § 53a-223 is a general intent crime, State v. Fagan, 280 Conn. 69, 76-78, 905 A.2d 1101 (2006). In that case, the defendant broke that law by intentionally driving by, and within 100 yards, of the victim's residence, even though the state presented no evidence that the perpetrator knew whether the victim was home or not.
Although the use of the word " harass" in § 46b-38c(e) arguably covers a broader range of conduct than telephone harassment, as that crime is defined in General Statutes § 53a-183(a)(3), that term surely embraces the criminal activity proscribed by telephone harassment. Subsection 53a-183(a)(3) criminalizes telephone calls made with the intent to harass, annoy, or alarm " whether or not a conversation ensues . . ." The Appellate Court has instructed that " it is the physical act of placing the call and causing a ringing at the receiving end that constitutes the actus reus of the crime, " State v Moulton, 120 Conn.App. 330, 337, 991 A.2d 728 (2010); reversed on other grounds, 310 Conn. 337, 78 A.3d 55 (2013).
Also, Attorney Stevenson did raise on direct appeal the sufficiency of the evidence to convict the petitioner of 100 counts of violation of a criminal protective order. The Appellate Court held the jury's guilty verdicts were supported by the evidence at the criminal trial, State v. Stanley, supra, 15-17. If the victim's answering of each one of the telephone calls was a necessary element of that crime, one would have expected the Appellate Court to have mentioned that deficiency.
It would be highly anomalous to determine that an unanswered telephone call is a choate crime under § 53a-183(a)(3), but, as to the crime of violating a court order, the identical conduct is inchoate. The impact on the victim is the same, as is the vexatious nature of the perpetrator's conduct.
Therefore, the court decides that the petitioner has failed to prove, by a preponderance of the evidence, that there exists a reasonable likelihood of success on appeal had this argument been made by Attorney Stevenson.
For these reasons, the court denies habeas corpus relief on the ground of ineffective assistance of appellate counsel.