Opinion
No. CV 03 0004206
August 7, 2006
MEMORANDUM OF DECISION
The petitioner, Lamont Thergood, alleges in his petition for a Writ of Habeas Corpus, initially filed on October 1, 2003, and amended on May 11, 2005, that he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments of the United States Constitution, and of Article First, Sections 8 and 9, of the Constitution of the State of Connecticut. He asserts that with respect to his criminal case in docket number CR 99 0147948, the judgment should be vacated and the matter be remanded to the trial court for further proceedings.
The matter came to trial before the Court on April 27, 2006. On May 4, 2006, petitioner withdrew all claims in the amended petition except the claim that his trial counsel failed to adequately challenge the state's contention that he knowingly and intelligently waived his Miranda rights. The Court heard testimony from Dr. John Collins, a psychologist retained by trial counsel; Attorney Errol Skyers, petitioner's trial counsel; and Dr. Charles Saldanha, a forensic psychiatrist. In addition, the Court received transcripts of all of the criminal trial proceedings, from arraignment to sentencing. The respondent proffered two police incident reports and petitioner's statement, to which is attached a Miranda warning form.
Petitioner withdrew paragraphs 14-20 and 22-40, leaving paragraph 21 as the only remaining claim.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FINDINGS OF FACT
After a review of all the testimony and evidence submitted at the habeas trial, the Court makes the following findings of fact:
1. The petitioner was the defendant in a criminal case in the Judicial District of Fairfield under docket number CR 99 0147948, in which he was charged with murder in violation of General Statutes §§ 53a-54a(a) and 53-202k, felony murder in violation of § 53a-54c, and robbery in the first degree in violation of § 53a-134(a).
2. Attorney Errol Skyers was appointed as a special public defender by the trial court and represented the petitioner throughout these proceedings.
3. The jury could have reasonably found the following facts to be true regarding the underlying offense: "At approximately 1 a.m. on March 26, 1999, Lamont Baldwin, Ricky Owen and the [petitioner] were riding around Bridgeport in a car driven by Baldwin. As they proceeded along Knowlton Street, the [petitioner] asked Baldwin to stop the car so that the [petitioner] could get out and urinate. While he was outside the vehicle, the [petitioner] encountered the victim Telerence Carter. The [petitioner] shot Carter four times with a revolver, killing him . . .
4. "Officer Milton Johnson of the Bridgeport police department was driving on East Washington Avenue near Knowlton Street when he heard gunshots. Johnson made a U-turn and, as he was approaching Knowlton Street, his vehicle was nearly struck by the car in which Baldwin, Owen and the [petitioner] were traveling. Johnson then made another U-turn so that he could pursue the car. As Johnson pursued the [petitioner] and his companions, Owen grabbed the revolver from the [petitioner] and threw it out the window. The pursuit ended when Baldwin turned onto a dead-end street. Johnson ordered Baldwin, Owen and the [petitioner] to stay in the car until additional police arrived. After additional police officers arrived at the scene, the [petitioner] was patted down and placed in the rear of Johnson's squad car for approximately one hour. Johnson subsequently drove the [petitioner] to the police station where, several hours later, the [petitioner] signed a typed confession in which he admitted shooting Carter." State v. Thergood, 75 Conn.App. 527, 528-29, 816 A.2d 665, cert. denied, 263 Conn. 917, 821 A.2d 771 (2003).
5. In addition to the petitioner's confession, the jury heard the following evidence: "Owen testified that after Baldwin stopped the car on Knowlton Street, the [petitioner] exited the car. After some time had passed, Owen looked and saw the [petitioner] standing directly in front of Carter, whose hands were raised. Owen then saw the [petitioner] shoot Carter. The state also called Baldwin, who testified that after he stopped the car on Knowlton Sweet, the [petitioner] exited the car. Baldwin further testified that as he was adjusting the car's tape player, he suddenly heard gunshots. He saw the [petitioner] running toward the car with a gun . . .
6. "After his arrest, the [petitioner] made a telephone call from the squad room of the police station. Detective Edwin Perez overheard part of the [petitioner's] conversation. Perez testified that he heard the [petitioner] say, 'Mom,' 'I did it,' 'I shot him' and 'no reason' [Detective Heitor] Teixeira, who also overheard the conversation, testified that he heard the [petitioner] say that he 'shot the dude for no reason.'
7. "Later, the [petitioner] was placed in a cell under suicide watch. Terrance Lambert, Keith Grieco and Paul Nikola, who were the police officers assigned to watch the [petitioner], overheard statements that he made. Lambert testified that he heard the [petitioner] say to Owen, 'I did him, but it wasn't me that killed him, it was God that took him.' He also heard the [petitioner] tell Owen, 'It wasn't the Budweiser that made me do it.' Grieco testified that he heard the [petitioner] say, 'My black ass is going down. I should have never confessed. I should have never let them search the car. I didn't shoot at that close of a range that blood would get on my shoes. My life is ruined. You guys are just witnesses. We should have gone down the avenue instead of stopping for that.' Grieco also testified that the [petitioner] said that he had pulled the trigger. Nikola testified that he heard a conversation between the [petitioner] and his brother, Mark Thergood. According to Nikola, Mark Thergood asked the [petitioner] what he had told the police. The [petitioner] responded, 'I told the truth. I confessed to it.'" Id., 531-33.
8. Prior to the trial, Attorney Skyers, on petitioner's behalf, filed a motion to suppress his confession and the statements he made to his mother by telephone and to Ricky Owen while m custody.
9. At the suppression hearing, which was held on October 23 and 24 of 2000, police detectives testified that after petitioner was questioned for about two hours, he signed a waiver of his Miranda rights and said he wanted to make a statement.
10. Attorney Skyers presented no witnesses at the suppression hearing. 11. The trial court denied the motion to suppress, finding that petitioner's confession was voluntary under the totality of the circumstances.
12. Following a trial of the case to a jury, petitioner was convicted of murder.
13. On January 5, 2001, the Court (Hartmere, J.) imposed a sentence of fifty years incarceration on the charge of murder.
14. Petitioner appealed his conviction, which was sustained by the Appellate Court. The sole issue on appeal was whether petitioner's federal constitutional right to due process was violated because his confession was involuntary.
State v. Thergood, 75 Conn.App. 527, 816 A.2d 665, cert. denied, 263 Conn. 917, 821 A.2d 771 (2003).
15. Attorney Errol Skyers, petitioner's trial counsel, testified at the habeas trial that he had trouble communicating with petitioner at the onset of his representation. He moved for a competency evaluation and after the initial evaluation, petitioner was found incompetent to stand trial but restorable at hearings held on August 9, October 8, and November 29 of 1999. Finally, on February 4, 2000, the petitioner was deemed competent.
16. Attorney Skyers testified that after the restoration, he had no further trouble communicating with petitioner.
17. In September 2000, Attorney Skyers hired Dr. John Collins, a psychiatrist associated with the Yale Child Study Center and the Yale Department of Psychiatry, to evaluate his client with respect to the possibility of using mental disease or defect as a defense.
18. Dr. Collins met with petitioner once alone and once with Attorney Skyers. Dr. Collins testified that petitioner presented to be "less impaired" than Attorney Skyers had described him. Dr. Collins then set up a meeting that included Attorney Skyers. At that meeting, Attorney Skyers appeared to be able to communicate adequately with his client. Dr. Collins assumed that Attorney Skyers would further contact him to arrange a formal psychological test of the petitioner and prepare an evaluation for use in the criminal proceeding. However, he was never contacted further by Attorney Skyers.
19. Attorney Skyers testified that he never requested Dr. Collins to consider the issue of whether petitioner knowingly, voluntarily, and intelligently waived his Miranda rights.
20. Dr. Charles Saldanha, a forensic psychiatrist, testified at the habeas trial. His evaluation (see Petitioner's Exhibit 27) and his testimony demonstrated that he had completed a comprehensive examination of petitioner and relevant reports and documents relating to the underlying criminal matter. He opined that on the morning of March 26, 1999, petitioner was not capable and did not make a knowing and intelligent waiver of his Miranda rights.
21. Additional facts will be discussed as necessary.
DISCUSSION OF LAW
The standard that the Court must apply to the petitioner's claim of ineffective assistance of trial defense counsel is well established. "A petitioner's right to the effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, Section 8, of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel . . . The right to counsel, however, is the right to effective assistance and not the right to perfect representation." (Internal quotation marks omitted.) Woods v. Commissioner of Correction, 85 Conn.App. 544, 549, 857 A.2d 986, cert. denied, 272 Conn. 903, 863 A.2d 696 (2004). "The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney . . . who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In Strickland v. Washington, supra, the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must demonstrate that counsel's assistance was so defective the conviction can no longer be considered reliable. "That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
To satisfy the first prong of the Strickland test, the petitioner must establish that his attorney's performance was "not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . The court must be mindful that [a] fair assessment of attorney performance requires that every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Citation omitted; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 855-56, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).
It is not appropriate for a habeas court to examine the performance of trial defense counsel and put it under microscopic scrutiny. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, supra, 466 U.S. 689-90. According to the transcripts submitted at the habeas trial, the petitioner was held for evaluation and treatment at Connecticut Valley Hospital, Whiting Forensic Division, for approximately eight months before his competency was restored. During his time in the hospital, the petitioner was assessed for his understanding with respect to, among other things, the charges against him, the implications of a guilty verdict and the role of the judge, jury, prosecutor and witnesses during the criminal trial. Competency Hearing Transcript, February 22, 2000, pp. 4-5. Based on the length of the petitioner's hospitalization and the level of understanding he was required to possess before being deemed competent to stand trial, it is clear that the petitioner had difficulty comprehending basic legal concepts and engaging in abstract reasoning. This is supported by the observations and conclusions made by Dr. Saldanha, as testified to at the habeas trial and documented in his report on the petitioner's psychological evaluation. See Petitioner's Exhibit 27.
Attorney Skyers was well aware of the petitioner's limitations, through his own interaction with the petitioner and the information obtained from the petitioner's family and school records. He specifically argued at the suppression hearing that the petitioner's waiver of his Miranda rights was involuntary based, in part, on his inability to understand these rights as they were explained to him. Hearing Transcript, October 24, 2000, pp. 5-6. Attorney Skyers did not, however, address the Miranda issue when he contacted Dr. Collins concerning the petitioner in advance of the suppression hearing. Instead, Attorney Skyers discussed only the petitioner's capacity to communicate and the possibility of presenting a mental disease or defect defense.
Given what was known about the petitioner's limitations at the time of the suppression hearing and the availability of Dr. Collins to perform a comprehensive evaluation of the petitioner, this Court finds that it was remiss of Attorney Skyers not to present any witnesses in support of his motion at the suppression hearing. Particularly, Attorney Skyers should have had the petitioner evaluated as to whether he understood his Miranda rights and the implications of waiving them. He then could have offered some proof, in the form of expert testimony or a psychological report, in support of his argument that the petitioner did not knowingly, intelligently or voluntarily waive his Miranda rights. A reasonably competent defense attorney would not have failed to challenge the petitioner's confession in such a way. Consequently, this Court finds that Attorney Skyers rendered deficient performance and that the petitioner has satisfied the first part of the Strickland test.
Although the petitioner has successfully overcome the first hurdle in the ineffective assistance of counsel analysis, both parts of the standard must be satisfied before trial counsel's representation can be deemed constitutionally defective. The second prong of the Strickland test involves the prejudice component for which the petitioner must do more than merely show that the errors made by counsel had some effect on the outcome of the proceeding. To meet his burden, the petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that absent the errors, the fact finder would have had had a reasonable doubt respecting guilt . . . A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury [when making the prejudice inquiry] . . .' Strickland v. Washington, supra, 466 U.S. 695-96." (Citation omitted; internal quotation marks omitted.) Lewis v. Commissioner of Correction, supra, 89 Conn.App. 856.
Here, the petitioner has failed to show that he was in any way prejudiced by counsel's deficient performance. There was sufficient evidence of the petitioner's guilt, assuring the reliability of his conviction, absent counsel's errors. As the Appellate Court concluded in its decision of the petitioner's direct appeal, "[e]ven if the court had suppressed the [petitioner's] written confession, the jury still would have heard the testimony of two eyewitnesses who positively identified the [petitioner] and five police officers who collectively overheard him make statements at four different times indicating his responsibility for the shooting. In light of all that highly inculpatory evidence . . . [it is] beyond a reasonable doubt that the [petitioner's] written confession did not contribute to his conviction." State v. Thergood, supra, 75 Conn.App. 533. The petitioner did not put forth any evidence at the habeas trial for this Court to conclude otherwise.
Accordingly, the Writ of Habeas Corpus is denied.