Opinion
No. CV01-0811262 S
January 20, 2010
MEMORANDUM OF DECISION
The petitioner initiated this matter by way of a petition for a writ of habeas corpus filed in the judicial district of Hartford on September 12, 2001. The matter was stayed on July 30, 2002, pending the outcome of the petitioner's direct appeal. On September 1, 2003, this matter was transferred from the judicial district of Hartford to the judicial district of Tolland. A motion to appoint Attorney John Watson as a special public defender was granted on January 29, 2004. Attorney Watson filed his appearance on February 17, 2004, and has represented the petitioner since then.
The petitioner's direct appeal was first addressed by the Appellate Court in State v. Thompson, 69 Conn.App. 299, 797 A.2d 539 (2002), which was released on April 23, 2002. The Appellate Court reversed the trial court's judgment and remanded the matter for a new trial. On June 18, 2002, the Supreme Court granted the state's petition for certification to appeal. State v. Thompson, 260 Conn. 936, 802 A.2d 90 (2002). Ultimately, the Supreme Court, in a decision released on October 28, 2003, reversed the Appellate Court and remanded the case to that court with direction to affirm the judgment of the trial court. State v. Thompson, 266 Conn. 440, 832 A.2d 626 (2003).
The pro se petition was amended for the first time on May 10, 2007, and for second and final time on September 11, 2007. The second amended petition (amended petition) raises claims in two counts: first, ineffective assistance by trial counsel, Attorney Arthur Meisler; and second, that the petitioner was deprived of his right to trial by an impartial jury. As relief, the petitioner asks this court to vacate his convictions and sentences, order that the petitioner be released, remand the matter to the criminal docket and given a new criminal trial, and such other relief as law and justice may require. The respondent's return either denies the petitioner's material allegations or leaves him to his burden of proof, and raises the affirmative defense of procedural default as to the claim in count two. The petitioner's reply denies that he has procedurally defaulted, as well as that the facts will demonstrate the cause and prejudice to permit review of the claim in count two.
The parties appeared before this court on seven days, beginning on January 8, 2009, and concluding on July 16, 2009, for a trial on the merits and presented documentary and testimonial evidence, which will be discussed in more detail below. The court ordered the parties to file simultaneous post-trial briefs. The petitioner's brief was filed on October 2, 2009; the respondent's brief was filed on October 9, 2009.
For the reasons stated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
Findings of fact
The petitioner was the defendant in the case of State v. Ryan Thompson in the judicial district of Windham at Danielson, docket number CR98-0101201. The petitioner was charged with murder but was convicted by a jury of the lesser-included offense of reckless manslaughter in the first degree with a firearm in violation of §§ 53a-55(a)(3) and 53a-55a. The petitioner was sentenced to a term of twenty-five years to serve. The petitioner appealed from the judgment of conviction and raised four claims on appeal. The Appellate Court decision recites the following facts, as could be reasonably found by the jury.
These four claims were: "(1) he was deprived of a fair trial by prosecutorial misconduct, (2) the trial court improperly allowed witnesses to testify as to the credibility of other witnesses, (3) the trial court improperly admitted the written statements of two witnesses and (4) the trial court improperly admitted hearsay testimony." State v. Thompson, 69 Conn.App. 299, 301-02, 797 A.2d 539 (2002). The Appellate Court agreed with the first and second claims, reversed the judgment of conviction and remanded the matter for a new trial. Id., at 302.
"On the evening of April 18, 1998, the victim, Robert McCaffery, and his friend, John Jones, attended a party at an apartment in the Moosup section of Plainfield. The two left the apartment at approximately 11 p.m. and climbed onto a nearby garage roof to smoke and to watch an altercation that was taking place in front of the apartment. As the two men were sitting on the roof, Jones heard a `pop.' When Jones turned around, McCaffrey was lying on his back with blood coming out of the side of his head. McCaffery subsequently died as a result of a gunshot wound. A witness testified to seeing the defendant exit a car just before the shooting, holding what appeared to be a rifle, and run between two houses in the direction of the victim. No eyewitnesses actually saw the defendant shoot the victim. Two days after the shooting, the defendant was charged with murder in violation of General Statutes § 53a-54a. Following a jury trial, the [petitioner] was found guilty of the lesser-included offense of reckless manslaughter in the first degree with a firearm in violation of §§ 53a-55(a)(3) and 53a-55a. The jury found the defendant not guilty on the charges of murder in violation of § 53a-54a and intentional manslaughter in the first degree in violation of § 53a-55a." Id., at pgs. 302-03.
The State filed a petition for certification to appeal to the Supreme Court, and which was granted. State v. Thompson, 260 Conn. 936, 802 A.2d 90 (2002). "During the pendency of [the] appeal, [the Supreme Court] granted the [petitioner's] motion for permission to raise [an additional] claim as an alternate ground for affirmance." State v. Thompson, 266 Conn. 440, 443 n. 2, 832 A.2d 626 (2003). The Supreme Court ultimately reversed the decision of the Appellate Court and directed that court to affirm the judgment of the trial court.
The issues were limited to the following: "1. Did the Appellate Court properly conclude that the prosecutor's three improper remarks in rebuttal argument required reversal of the judgment of conviction? 2. Did the Appellate Court properly conclude that: (a) the trial court improperly permitted one witness to testify as to the credibility of another; and (b) that ruling constituted harmful error?" State v. Thompson, 260 Conn. 936, 802 A.2d 90 (2002).
This third, additional claim on appeal was "whether the Appellate Court's judgment should nevertheless be affirmed, in accordance with [the Supreme Court's] inherent supervisory authority over the administration of justice, on the ground that the prosecutor's misconduct in the present case was flagrant and deliberate." State v. Thompson, 266 Conn. 440, 443, 832 A.2d 626 (2003).
Significantly, the Supreme Court's decision summarized the underlying facts in much greater detail. "On April 18, 1998, the victim, Robert McCaffery, and his best friend, John Jones, attended a party at the apartment of Ron Harding in the Moosup section of Plainfield. The defendant and four of his friends, Robert Comeau, Jared Gilkenson, Brandy Stebbins and David Stebbins, also attended, although Harding had not invited them. The defendant and his friends arrived in Brandy Stebbins' car, a purple Chevy Cavalier. The defendant was wearing a white Nike pullover jacket and a baseball cap. Gilkenson had brought the defendant's nunchakus to the party, which he at first wore in the front of his pants. Later, he showed the nunchakus to people at the party. During the party, an argument started among David Stebbins, the defendant and two brothers, Matt Benoit and Chris Benoit, which continued outside Harding's apartment. Sometime during the course of the argument, while they were still inside, Chris Benoit pushed David Stebbins, who then grabbed the nunchakus from Gilkenson, spun them around, and broke them on the stair railing. Harding, who had come outside because he had heard about the fight, broke it up and told the defendant and David Stebbins to leave. At the same time, and because of the fight, Mandie Green, one of Harding's roommates, told everyone that the party was over.
"A set of nunchakus is a weapon that consists of two hardwood sticks joined at their ends by a short length of rawhide, cord, or chain. Oxford English Dictionary (2d Ed. 1989)." Nunchakus, or "numchucks" as they are referred to colloquially, have their origins in Southeast Asia where they were actually used by farmers in rice patties to help harvest the crop.
"In the meantime, before the party had ended, Jones and the victim had decided to leave, but they heard the altercation out front, so they took an alternate route to their car, climbing down the fire escape and cutting through a neighboring yard. While they were walking, Jones suggested that they climb onto the roof of a nearby garage to smoke a cigarette and watch the argument. They climbed on the roof, but by then the argument appeared to have ended. Jones was kneeling in front, watching Harding's apartment, and the victim was either kneeling or standing behind and to the right of Jones, out of his field of view. Jones could see persons walking back inside Harding's apartment. He heard a `pop' coming from his left, but did not think it was significant. When Jones had almost finished his cigarette, he asked the victim if he was ready to leave, but received no response. He turned around to look at the victim and saw that he was lying on his back. He leaned over the victim and saw blood coming from the side of his head. When he tried to give the victim mouth-to-mouth resuscitation, the victim coughed up blood, and Jones began to yell for help."
"An autopsy conducted the next day, April 20, 1998, determined that the victim had been killed by a bullet to his head. The bullet was examined on May 11, 1998, by a firearms examiner and was identified as a .22 caliber long rifle variety."
"At roughly the same time that Jones and the victim were climbing onto the roof, Harding, who was standing at the end of the driveway with his friend Robert Latour, saw the defendant, David Stebbins and Gilkenson enter Brandy Stebbins' car. Harding then began walking back up the stairs to his apartment. Latour, who remained outside, saw the defendant and Gilkenson get into Brandy Stebbins' car. David Stebbins then walked over to the car, reached into it, walked over to Latour with a rifle, aimed the rifle directly at Latour's face, and told Latour that he would shoot him. Latour responded, `Whatever.'" David Stebbins then returned to the car, handed the rifle inside the car, and entered the car. Latour then saw the car drive for a short distance and then stop. Latour next saw the defendant, wearing a white Nike jacket, exit the car carrying something that looked like a rifle, and run between two houses. Latour then heard a "pop," and heard Jones screaming from the nearby garage rooftop. In order to ascertain what had happened, Latour walked on the grass toward the garage roof where Jones and the victim were located. Jones was yelling that the victim had been shot and that someone should call 911. Latour went back into Harding's apartment and told the people inside to call 911."
"On cross-examination, Latour admitted that he could not say for sure whether the object that the defendant was carrying was a rifle."
"Meanwhile, Harding also had heard the popping sound and came back down the stairs and outside. He saw a person, whom he could not positively identify, but who was wearing a white pullover jacket, running with his hands in front of him. That person ran to Brandy Stebbins' car and entered it, and the car drove off. Harding then saw Jones on a roof, waving his arms and yelling for someone to call 911. Harding climbed up to the roof, where he found Jones kneeling over the victim and screaming `help me.'"
"Harding testified that when he came back outside, Latour was still standing at the end of the driveway. This was inconsistent with Latour's testimony that after the popping sound, Latour had walked across the grass toward the garage roof where Jones and the victim were. In addition, Latour testified that he did not recall, after hearing the popping noise, seeing Harding come out of the house."
"Officer Brandon Tyrrell of the Plainfield police department arrived at the scene, where Harding told him that the defendant, who had returned to the scene and was walking nearby, still wearing a white jacket might have some information. Tyrrell drove over to the defendant and asked him about the party, and the defendant responded that he knew only what others had told him. When Tyrrell continued to question the defendant, the defendant repeatedly stated: `Just arrest me. I didn't shoot anybody. Just arrest me.' Tyrrell told the defendant that he was not under arrest, and that Tyrrell just wanted to question him. Tyrrell then left the defendant with another officer and returned to the crime scene. The defendant then reappeared at the scene and began to yell that he had not shot anyone and questioned why anyone would believe that he had done so. Tyrrell and the other investigating officers asked the defendant to leave. When the defendant continued to cause a disturbance, Tyrrell arrested him for breach of the peace, brought him to the police station, and told him that he was under arrest for causing a disturbance, not for shooting anyone. The defendant, who appeared to be intoxicated, continued to insist that he did not shoot anyone and also asked Tyrrell if the `guy' was all right."
"Meanwhile, detectives were sent to locate and interview the other occupants of Brandy Stebbins' car. At approximately 1:50 a.m. on April 19, Detective Martin Graham and Lieutenant William Holmes located David Stebbins at his home, along with Brandy Stebbins, Gilkenson and Stebbins' mother. David Stebbins accompanied Graham and Holmes to their cruiser, where he provided a written statement that he, Brandy Stebbins, Gilkenson and the defendant had left the party without incident. David Stebbins and Gilkenson also agreed to go the police station for administration of a gunshot residue test. When they entered the station, Graham heard the defendant, in an adjoining room, screaming, yelling and swearing. After administration of the test, the police drove David Stebbins home."
"While Graham and Holmes were taking David Stebbins' statement, Detectives Richard Bedard and David LeBlanc interviewed the defendant at the police station. Immediately after the defendant had waived his Miranda rights, LeBlanc noticed a bite wound on the defendant's forearm, which the defendant told him he had inflicted on himself while he was in his cell. The defendant was agitated, and expressed concern that he had been arrested for shooting someone. After Bedard and LeBlanc assured him that he was under arrest for breach of the peace, not for shooting someone, the defendant agreed to speak to them. During the interview, the defendant asked them who had been hurt and how. When Bedard said that someone at the party had been shot, the defendant immediately jumped up and started to scream and swear at the detectives. After they had succeeded in calming the defendant, he asked: `What did he get shot with a .22?' The detectives were surprised at this question because at that point no one involved in the investigation knew the caliber of the weapon used, and they glanced at each other. The defendant then stated: `Or a shotgun.' When Bedard responded that the weapon used was not a shotgun, the defendant again began screaming and swearing at the detectives. When the detectives had once again calmed the defendant, Bedard asked him who at the party had a gun. The defendant again became belligerent, swearing and insisting that there was no gun at the party. When the detectives told the defendant that they would be questioning everyone who was at the party that night, he replied, `Well, my boys won't talk to you.'"
"See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)."
"During the interview, LeBlanc left the room to answer a page. When he returned, he informed the defendant that he had just been told that the victim was not expected to survive and that the victim's family had decided to donate his organs. At that point, the defendant became enraged, making growling noises, clenching his fists, screaming obscenities and making obscene gestures at LeBlanc. Realizing that they could not control the defendant, the detectives decided to end the interview."
"When LeBlanc and Bedard had finished interviewing the defendant, Bedard took a statement from Gilkenson, who was still at the station. In his statement, Gilkenson denied any wrongdoing by himself or any member of his group. The defendant also subsequently gave a written statement, indicating that he went to the party, but that he and his friends left the party at around 11 p.m. without incident."
"On April 19, 1998, Joseph Luberto, who knew the defendant from school and had heard about the shooting, called the defendant and asked him whether he had done it. The defendant denied shooting the victim. Furthermore, although Luberto had not mentioned and did not know the caliber of the weapon, the defendant added that he did not know how to load a .22 caliber rifle."
"Chad Burski, who was the father of Brandy Stebbins' son, testified, however, that he and the defendant had gone shooting together approximately thirty times prior to April 1998. Although he admitted that the defendant was a bad shot, he stated that he had seen the defendant load a .22 caliber rifle."
"Also on April 19, 1998, based on information they had received in the course of their interview of Latour, the police decided to interview Gilkenson and David Stebbins a second time. Detectives Norman Nault and Steven Rief questioned Gilkenson at his home, in the presence of both of his parents. Initially, Gilkenson repeated his initial assertion that he had no knowledge pertaining to the murder of the victim, but, upon being told that the police had information that someone from Brandy Stebbins' car shot the victim, and upon the urging of his parents, Gilkenson gave the police a second statement, in which he told them that when he, David Stebbins, Brandy Stebbins and the defendant were leaving the party, the defendant, before they left and before he got into the car, came running toward the car with a rifle in his hand. The defendant got into the backseat and leaned the gun against the side window, covering the gun with his arm. The defendant then said `something about he just shot somebody, let's get the hell out of here.'"
"Both Gilkenson's and David Stebbins' second statements were admitted at trial for their substance, pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). A statement is admissible for its substance under Whelan if it is: (1) a prior inconsistent statement; (2) signed by the declarant; (3) who has personal knowledge of the facts stated; and (4) the declarant testifies at trial and is subject to cross-examination. Id., 753. The trial court in the present case found that all four elements of Whelan were met for both statements."
"Bedard and LeBlanc located David Stebbins at home, and he agreed to accompany them to the police station for questioning. In David Stebbins' second statement, he said that when the defendant had arrived at his house to go to the party, the defendant had stuffed a .22 caliber rifle down his pant leg. The defendant told David Stebbins, Brandy Stebbins and Gilkenson that he was going to sell it to someone in Moosup. Brandy Stebbins then said, `I hope that's not loaded,' to which the defendant replied in the negative. When they arrived at the party, the defendant left the rifle in the backseat of the car. When they left the party, David Stebbins, the defendant, Gilkenson and Brandy Stebbins were in the car. They pulled away, and the defendant told Brandy Stebbins to stop the car and that he would be right back. The defendant then exited the car holding the rifle, and ran in between two buildings that were near Harding's apartment. Within fifteen seconds, they all heard a popping noise. The defendant then came running back to the car, got into the backseat with the rifle in his hand, threw the rifle into the backseat and said, `let's get out of here. I think I hit somebody.' When they arrived at David Stebbins' house, the defendant took the rifle and ran toward his house. David Stebbins stated that he and Gilkenson were `real scared' and hoped that the defendant had not shot anybody."
"David Stebbins later recanted this portion of his second statement in a third statement that he gave to Rief and Nault. In his third statement, David Stebbins explained that he had fabricated this exchange between his sister and the defendant in an attempt to protect his sister."
"On April 20, 1998, the police arrested the defendant for the murder of the victim. At the time of the arrest, detectives seized the white jacket that the defendant had been seen wearing on the night of April 18. The gunshot residue test performed on the jacket revealed one particle of lead and one particle of antinomy, both of which are consistent with gunshot residue. The gunshot residue tests performed on swabs taken from Gilkenson and David Stebbins revealed lead on both of their hands."
"At trial, both Gilkenson and David Stebbins testified that the police had coerced them into giving their second statements and that the statements were false. Instead, both testified consistently with their initial statements, denying any involvement by any member of their group, including the defendant, in the murder of the victim. Therefore, because the trial court found all four elements of Whelan satisfied for both statements; see footnote [10] of this opinion; the court granted the state's motion to have both statements admitted for their substance pursuant to State v. Whelan, 200 Conn., 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986)."
Additional facts will be discussed below as necessary to address the petitioner's specific allegations.
Discussion I. Ineffective assistance by trial defense counsel
In count one of the amended petition, the petitioner alleges that Attorney Arthur Meisler rendered ineffective assistance of counsel. The specific allegations against Meisler are grouped into four areas, although three of the specific allegations challenge Meisler's investigative efforts. First, that Meisler suffered mental and/or emotional difficulties, including stress and/or depression, during his representation of the petitioner, both pretrial and during trial, which impaired his ability to function effectively as counsel. Second, that Meisler conducted an inadequate investigation of material which would have supported effective cross examination and impeachment of crucial state's witnesses and/or evidence and/or the presentation of appropriate defense evidence to rebut such state's witnesses and/or evidence. Third, that Meisler failed to conduct adequate investigation and research, including consulting and/or presenting testimony by appropriate experts, to enable him to attack and/or explain to the jury the significance of forensic evidence presented by the state, including gunshot residue (GSR) evidence and incident reconstruction testimony by Dr. Henry Lee, then Commissioner of Public Safety for the state of Connecticut. And fourth, that Meisler failed to conduct adequate investigation and research, including consulting and/or presenting testimony by appropriate experts, on police interrogation techniques and their demonstrated effects on witnesses in order to counter the introduction of statements both at the hearing in probable cause and at trial (pursuant to State v. Whelan, 200 Conn. 743 (1986)) of state's witnesses David Stebbins and Jared Gilkenson, whose statements contradicted their in-court testimony which was exculpatory to the petitioner.
A. Standard for ineffective assistance of counsel
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . 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 . . .
"The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show 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 factfinder would have had a reasonable doubt respecting guilt . . ." (Internal citations and quotation marks omitted.) Eastwood v. Commissioner of Correction, 114 Conn.App. 471, 476-77, 969 A.2d 860 (2009).
B. Attorney Meisler's alleged mental and/or emotional difficulties
The jury in the criminal case returned its verdict on January 27, 2000, and the petitioner was sentenced on March 23, 2000. Attorney Meisler committed suicide one year later, sometime during the night of March 22-23, 2001, well after his representation of the petitioner had ended. The petitioner's allegation implicitly suggests that Meisler's problems, which ultimately resulted in him taking his own life on the first anniversary of the petitioner's sentencing, somehow affected his performance during his representation of the petitioner.
"To satisfy the first prong of Strickland, `the petitioner must prove, under all the circumstances existing at the time of the trial, that the representation fell below an objective standard of reasonableness.' . . ." (Emphasis added.) Beverly v. Commissioner of Correction, 101 Conn.App. 248, 252, 922 A.2d 178, cert. denied, 283 Conn. 907, 927 A.2d 916 (2007), citing and quoting Crump v. Commissioner of Correction, 68 Conn.App. 334, 337, 791 A.2d 628 (2002). Thus, what matters for purposes of the instant petition, is whether there is any evidence indicating that Meisler's representation was materially affected by any purported mental and/or emotional difficulties.
The petitioner's father, Scott Thompson, who retained Meisler to represent the petitioner, met with Meisler during the course of his representation. The petitioner's father testified at the habeas trial that he never observed anything that made him concerned about Meisler's mental health. Meisler did, according to the petitioner's father, appear at the probable cause hearing wearing two different colored shoes. Additionally, during the trial itself, Meisler on several occasions forgot people's names, including the petitioner's name "Ryan," and sometimes seemed confused. This apparent confusion was exhibited when Meisler on several occasions stopped while asking questions.
On cross-examination, the petitioner's father testified that Meisler seemed "a little eccentric" and at one point had put on two different colored socks. He discussed these "quirks" with his son, but both never considered firing Meisler and were satisfied with the representation he was providing at the time it was provided, even commenting that Meisler was doing a better job than the prosecuting attorneys.
The petitioner testified that he did not notice whether Meisler was depressed or not. The petitioner also observed that Meisler on occasion seemed distracted, even calling the petitioner Stebbins or Gilkenson, but generally was satisfied with Meisler's representation at the time he rendered his services. On cross-examination, the petitioner testified that on some occasions, Meisler seemed "confused" but was focused on the trial and believed in the petitioner's innocence.
Although the petitioner and his father presented the foregoing testimony, the court simply cannot elevate their testimony to having evidentiary value as to Meisler's mental and/or emotional health. The only other evidence even potentially bearing on Meisler's mental and/or emotional health arises from the investigation conducted into the circumstances surrounding Meisler's death. The police were made aware of an apparent suicide note written by Meisler and addressed to his own son. The letter bears the date "Thursday night 3/22/01" and indicates, in Meisler's own words, that "[he has] been very ill for many years." A police investigator took several pictures of Meisler's computer screen displaying the document properties of the suicide note. The document properties show that the document was created at 10:31 a.m., on April 20, 2000, and modified at 8:30 p.m. on March 22, 2001. Additionally, the document was printed at 8:30 p.m. on March 22, 2001. The properties screen also indicates "Revision number: 25" and "Total editing time: 248 minutes." It is unknown what the content of the note was prior to the last revision, and the entire content of the note could have been written during the final revision. Consequently, no determination can be made as to the content of the document when first created or any of the two dozen revisions prior to the March 22, 2001 revision at 8:30 p.m.
From the foregoing, the court concludes that the petitioner has failed to present any credible evidence that affirmatively shows that Meisler was suffering from mental and/or emotional difficulties, or stress and depression, that affected his performance prior to and during the criminal trial. The petitioner would have this court infer deficient performance of his attorney when the record, aside from some idiosyncratic behavior, is devoid of facts upon which this court might conclude the petitioner was deprived in a constitutional sense of his right to counsel. This court has remarked previously on the eccentricities of successful trial lawyers. Wearing different colored shoes or even ceasing questions in mid sentence may reflect a multi-tasking, keen mind hyperfocused on the present rather than counsel disengaged from his duties as an effective advocate. Furthermore, the mere fact that Meisler committed suicide one year after the petitioner was sentenced is not evidence that his performance was deficient during his representation of the petitioner. This claim is, therefore, wholly unsupported.
This court very recently addressed a claim that another criminal defense counsel was impaired by an emotional or mental illness which he knew or should have known would limit his ability to be effective. Hilton v. Warden, Superior Court, judicial district of Tolland, Docket No. CV03-0825394 (December 17, 2009, Nazzaro, J.). There, after accrediting the petitioner's testimony that defense counsel exuded a sense of braggadocio and expert testimony that defense counsel suffered from hypomania, a condition in which results in flamboyant and self-aggrandizing behavior, this court nevertheless concluded that there was insufficient evidence to conclude that trial defense counsel was in any way impaired or labored under some type of mental or emotional distress which caused or contributed to poor judgment or conduct rising, or stooping, to deficient performance during the course of representation. This court further noted that immodesty and lack of confidence are rare characteristics for successful trial lawyers. Pathology which contributes to an imbalanced mental state from whatever source, and hence, inability to make judgments, is another issue, entirely. These observations and conclusions are also pertinent and applicable to the instant habeas corpus petition.
C. Failure to investigate, research and call expert witnesses
As previously indicated, the petitioner asserts three different ways in which Meisler allegedly performed deficiently for failing to properly investigate, research and call expert witnesses. The standard applicable to such claims is as well-established as is the Strickland standard itself.
"`In Strickland v. Washington, [ supra, 466 U.S. 687], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different] . . . 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.) Parrott v. Commissioner of Correction, 107 Conn.App. 234, 236, 944 A.2d 437, cert. denied, 288 Conn. 912, 954 A.2d 184 (2008). Furthermore, `[i]n a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.' (Emphasis added; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008)." Farnum v. Commissioner of Correction, 118 Conn.App. 670, 675 (2009).
"`[U]npreserved, untested evidence is not presumed to be exculpatory.' Correia v. Rowland, 263 Conn. 453, 474, 820 A.2d 1009 (2003). `The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (petitioner could not succeed on claim of ineffective assistance of counsel because he failed to show what further investigation would have revealed and how it would have helped him) . . .' (Citation omitted.) Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001)." Carmon v. Commissioner of Correction, 114 Conn.App. 484, 492, 969 A.2d 854 (2009). "[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . ." (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002).
"The law presumes that counsel is competent until evidence has been introduced to the contrary. Strickland v. Washington, [ supra, 466 U.S. 689]. It is elementary jurisprudence that the determination of whether counsel's conduct was ineffective is a peculiarly fact-bound inquiry. Phillips v. Warden, 220 Conn. 112, 134, 595 A.2d 1356 (1991)." (Emphasis added.) Lapointe v. Commissioner of Correction, 67 Conn.App. 674, 679, 789 A.2d 491, cert. denied, 259 Conn. 932, 793 A.2d 1084 (2002). Even if deficient performance by counsel is proven, triggering the second Strickland prong that the deficient performance was prejudicial, "[m]ere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn.App. 526, 532, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007).
The court will first summarize its findings of fact as to each of the three areas.
1. Cross-examination, impeachment and rebuttal of state's witnesses
The petitioner first asserts that Meisler "conducted an inadequate investigation of material which would have supported effective cross-examination and impeachment of crucial state's witnesses and/or evidence and/or the presentation of appropriate defense evidence to rebut such state's witnesses and/or evidence, including, but not limited to: (1) police witnesses who testified concerning the taking of statements from state's witnesses; (2) Ron Harding and/or Robert "Bobby" Latour; [and] (3) the state's theory of the sequence of events and the [petitioner's] opportunity to commit the offense charged." Amended Petition, at pg. 2.
The petitioner's father, Scott Thompson, testified that he retained Meisler and thereafter met with both Meisler and/or his investigator, Ernest Rubino, who since has deceased. S. Thompson tried to get information that would be helpful to the investigation, even asking Brandy Stebbins to help gather information. Stebbins passed on information and tips from individuals who attended the party. One such tip was that Gallow had been with Latour that night, and that Latour was not at the party that night but instead was at a bar.
The court notes at this juncture that the parties stipulated that Latour also is deceased.
Don Light, currently a private investigator, but who has forty years experience with investigations, including as an investigator and supervisor of investigators with the Litchfield State's Attorney's Office, interviewed Gallow to determine where he was on the night of the shooting. Light then went to the location of the shooting to determine whether Latour could have seen what he testified to at the criminal trial he saw at the time of the shooting. Light concluded that Latour's position made it impossible for him to have seen the shooting. On cross-examination, Light could not recall if he was standing in the same location as Latour when he made his assessment. Thus, this court views the testimony of Light to have little value here.
Gallow himself testified during the habeas corpus proceeding. Gallow testified that he saw Latour at the Hangout, a nearby bar, and parking lot. Gallow asked Latour to go to Gallow's car and retrieve Gallow's pool cue. Latour did not return and, after several minutes, Gallow heard a crack similar to a gunshot. According to Gallow, Latour then yelled out an inquiry whether Gallow had heard the sound. Although Gallow learned Thompson was charged with the shooting, Gallow was not contacted, nor did he contact anyone.
On cross-examination, Gallow indicated that Latour left several times to go to the party in addition to leaving to get the pool cue from the car. Gallow did not know where Harding was located or what he observed. Gallow informed Light that Latour was almost a football field length away from Gallow, as well as that he did not know what Latour was doing before the shot or what Latour observed. Gallow indicated on both cross-examination and redirect that he had been drinking heavily the day of the shooting. This court finds little, if any value in Gallow's testimony.
Brandy Gilkenson, formerly Brandy Stebbins, testified about her police interviews. The first interview occurred the morning after the shooting. According to Brandy Gilkenson, the officers told her their version of what happened based on multiple eyewitnesses' accounts. Brandy Gilkenson told the officers that was not what happened and informed them of her rendition of the events. She later that same day went to the police station to provide a statement. During this second interview, the police indicated that they had many eyewitnesses and that Brandy Gilkenson's statement was the only one from the car's occupants that did not match. She recalled that an investigator for the petitioner's attorney talked to her, but she could not recall if she was asked about the statement signed April 20, 1998, which was not introduced into evidence during the criminal trial. Ultimately, the state charged her with perjury and hindering prosecution.
On cross-examination, Brandy Gilkenson testified that she was dating the petitioner at the time of the shooting. By the time of the criminal trial, however, she may already have been in a relationship with Jared Gilkenson and did not want to see him get into trouble. Brandy Gilkenson further testified that she agreed with the contents of the statement she signed, both then and to the present day. Given Brandy Gilkenson's potential bias to exculpate the petitioner, this court is not inclined to remove from the jury, its determination of credibility on this witness. It was the jury's province, and the jury's alone, whom to believe and which contradicting version of the events it might accredit. This court is not persuaded that Ms. Stebbins' testimony during the habeas trial should be credited.
Jared Gilkenson, another witness at the habeas trial, testified during the criminal trial and was also charged with perjury and making a false statement. Jared Gilkenson eventually pleaded guilty under the Alford doctrine. Jared Gilkenson, who was 17 at the time of the shooting, talked to the police the night of the shooting and gave a written statement to the police. This first statement was quickly followed that same day by a second written statement given when at least one of his parents was also present at all times and his mother initialed the second statement. According to Jared Gilkenson, when he told the officers what happened, their response was that could not have happened and that everyone in the car had already said that the petitioner committed the shooting.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, L.Ed.2d 162 (1970). "Under North Carolina v. Alford . . . a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless . . ." State v. Wheatland, 93 Conn.App. 232, 234 n. 1, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006).
On cross-examination, conducted the day following his testimony during direct examination, Jared Gilkenson's demeanor during the habeas corpus proceeding was drastically different. On cross, Gilkenson appeared to this court agitated, ill tempered and at times, hostile. Gilkenson on day two of his testimony was literally red-faced and physically squirmed in the witness box. In hindsight Gilkenson's responses on direct examination appears to have been carefully prepared. Cross-examination with the necessary spontaneity and inability to anticipate follow-up, on the other hand, appeared to be stressful, even overwhelming to Gilkenson. According to Jared Gilkenson's present-day testimony, the statement inculpating the petitioner he gave was not true. Furthermore, he testified that he would not have signed anything in 1998 without having first read it, which the court does not find credible. Jared Gilkenson told attorney Meisler about the circumstances surrounding his statements and met on more than one occasion with investigator Rubino to go over his statements. Meisler wanted to know what was false and what was true. At some point Rubino filled out a so-called "true" statement that included the summary that the petitioner did not do the shooting. As with Brandy Stebbins, it was the finder of fact's function, the jury here, to assess which Gilkenson statement to credit. There is no reason to speculate the jury was motivated by some improper purpose in deciding the credibility of Gilkenson, Brandy Stebbins or any other witness.
David Stebbins, Jr., also a witness during the criminal trial, testified during the habeas corpus trial. David Stebbins gave more than one written statement to investigators and, similar to others entwined in this matter, was charged with perjury and hindering prosecution. Stebbins eventually pleaded guilty under Alford. According to Stebbins, he admitted to making a false statement because some of the facts he provided were true and some were not. Stebbins' position was that his first statement, which is exculpatory of the petitioner, was true. Stebbins, again, during the habeas trial, as he did with his first statement to the police, sought to exculpate the petitioner. It bears emphasizing, however, that Robert "Bobby" Latour testified at the criminal trial that Stebbins pointed a rifle point-blank at Latour. At the habeas trial, Stebbins denied pointing a rifle at Latour. The court does not credit Stebbins' habeas testimony.
Stebbins' first written statement was given to the police the morning after the shooting. The second written statement, given several hours after the first written statement, contains a different version of events. Stebbins testified before this court that he told the officers what they wanted to hear and that they did not want to hear his original story. A few hours later, Stebbins in his father's presence made yet another written statement, his third, in which he corrected aspects of the second statement that he had made up mostly to protect his sister, Brandy Stebbins. A day later, Stebbins gave a fourth written statement recanting aspects of the second and third written statements.
On cross-cross examination during the habeas corpus proceeding, David Stebbins testified that Meisler spoke to him about the various written statements he had made. Stebbins also spoke with Rubino about the statements and how they came about. According to Stebbins, he had information from other people and used it to implicate the petitioner and, thereby, save himself.
Stephanie Lavimoniere testified before this court that she knew Harding. Lavimoniere also knew Latour by sight, but was not friends with him. Lavimoniere attended the party for a couple of hours around the hours of 7 p.m. and 8 p.m., but did not see Latour at the party. Although she was outside, Lavimoniere heard about the fight, but did not see it due to the darkness. She did not see Latour until later, after the shooting. Lavimoniere overheard people making statements about who was responsible for the shooting. On cross-examination, Lavimoniere admitted that there were probably more than 100 hundred people at the party, which was going on in three rooms. She had no idea whether Latour, who she was not friends with, was at the party or not.
Lavimoniere gave a statement to Rubino, who was Meisler's investigator. Although the statement taken in June 1998 differs from her present-day testimony (e.g., inside building at the time the fight ensued; could not see fight because she was too far away/darkness), Lavimoniere's testimony was consistent as to people saying David Stebbins had done the shooting and Latour was not at the party and showed up later, after the shooting.
Public Defender Martin Zeldis, the Chief of Legal Services Unit (i.e., appellate unit), Office of the Chief Public Defender, testified as an expert witness regarding trial counsel's alleged deficiencies. According to Zeldis, the witness's credibility was of extreme importance. Meisler's reliance on cross-examination made the credibility contest one between law enforcement officials and the individuals at issue. Exacerbating the credibility contest, Zeldis said, was the fact that several witnesses gave more than one statement to the police. Zeldis opined that reducing the trial strategy to cross-examination may work in certain circumstances but not in others. It usually proves difficult to make law enforcement officials appear not truthful.
On cross-examination, Zeldis acknowledged that Meisler's position during the trial was that Latour either was lying or mistaken, and that the petitioner was not there and could not have shot the victim. Such a position would deemphasize evidence showing the shot's origin. The defense position all along was that Latour could not have seen the petitioner and Zeldis admittedly did not see anything that diluted that defense position. Zeldis also conceded that it is difficult to show that police officers are not being truthful. Meisler did, according to Zeldis, bring out evidence of coercion of statements, threatening or intimidation, interviews as a long as ten hours, as well as produced testimony from Gilkenson's parents. In contrast to attorney Zeldis, this court views a measure of Meisler's success is that the jury returned a not guilty verdict on both the murder and more significant of the lesser-included manslaughter charges.
Attorney Zeldis conceded that there is a problem with the credibility of witnesses when witnesses give different versions of the same events. In this case, there are several witnesses who gave several stories, making the jury's credibility determinations that much more difficult. In Zeldis' hyperbolic words, there was a "crying need" for an expert to convey to the jury the manner in which law enforcement officials potentially can manipulate the circumstances of an interview. Zeldis did not know whether an expert would have been permitted to so testify, nor did he know if Meisler consulted with an expert to provide guidance for his questioning of witnesses. Zeldis also acknowledged, as did Dr. Narchet, that there is virtually no research in the area of false statements at the time of the petitioner's criminal trial and presently still is a nascent area of expertise. Lastly, Zeldis was not aware at the time of the habeas corpus proceeding that several of the witnesses who give multiple statements pleaded guilty to giving false statements.
2. Forensic evidence CT Page 3227
The second area of alleged deficient "investigation and research, including consulting and/or presenting testimony by appropriate experts, to enable [Meisler] to attack and/or explain to the jury the significance of forensic evidence presented by the state, including gunshot residue evidence and incident reconstruction testimony by Dr. Henry Lee, then Commissioner of Public Safety for the State of Connecticut." Amended Petition, at pg. 2.The petitioner's father testified that he discussed with Meisler the GSR on the petitioner's jacket. S. Thompson apprised Meisler of potential sources of the residue located on the jacket: that he was employed at that time by the Navy and also ran a video store and stocked DVDs, as well as that his daughter was seeing a sonar technician at the submarine base. The petitioner's father also discussed these other potential sources of the residue with one Dr. Tucker, who he communicated with via the internet. The petitioner's father shared Dr. Tucker's comments with Meisler, who took them into consideration in his investigation. According to S. Thompson, Meisler twice talked with the state's forensic expert and concluded it was not necessary for the defense to hire its own expert. Instead, the defense's approach would be to use the state's witness to demonstrate that the residue was not GSR. Although S. Thompson offered to rent an electron microscope to conduct testing and thought the defense needed a ballistics expert, Meisler neither availed himself of the offer nor hired a ballistics expert.
The petitioner also testified about discussions with Meisler about GSR evidence and hiring an expert witness. Meisler did not think, after meeting with the state's expert, that a defense expert was necessary to discredit the state's expert. The petitioner discussed with Meisler the jacket, which belonged to the petitioner's sister, and which he wore on the night of the murder. The petitioner testified that he was aware of the scene reconstruction evidence by Dr. Lee, but was unsure whether the subject came up during conversations with Meisler. According to the petitioner, he also on more than one occasion discussed with Meisler that Gallow and Latour were together the evening of the murder.
Robert O'Brien, a forensic scientist employed by the State of Connecticut since 1998, testified at the habeas corpus trial about the reconstruction of the crime scene, which culminated in the report authored by Dr. Lee and O'Brien. According to O'Brien, the reconstruction in part attempted to show that an individual on the roof fired the shot. The statement from Jones did not help to determine the shooter's location, nor was it helpful in terms of the report's conclusions. O'Brien testified that he met with Meisler in this case and spoke with Drs. Maxwell and Phillips. O'Brien was unable, however, to recall whether Meisler spoke with him about the GSR and could not recall his conversations with Meisler.
O'Brien further testified that he prepared the GSR analysis of the jacket using an electron microscope that employs a computerized monitoring process. The GSR report was admitted without objection as an exhibit during the criminal trial. O'Brien testified during the criminal trial that he was unable to confirm gunshot residue on the white jacket. That is, the state was unable through O'Brien to establish that GSR was on the jacket. O'Brien was, however, able to confirm some elements were consistent with GSR. O'Brien could not determine when the particles were deposited on the jacket.
On cross-examination, O'Brien stated that he and Dr. Lee were unable to ascertain either the victim's precise position or the direction the victim was facing when the bullet struck him. They were able to determine that the victim was not lying down on the roof, but they could not determine whether the victim was kneeling or standing when the bullet struck. The historical evidence was conflicting as to what the victim was doing at that time. O'Brien indicated his testimony as to the reconstruction would not have differed from Dr. Lee's testimony because they shared the same conclusions.
The petitioner called Dr. Peter Diaczuk, a forensic scientist. Dr. Diaczuk reviewed the forensic testimony presented during the criminal trial, as well as photographs and reports such as Dr. Lee's reconstruction report. Based on his review of all materials and trial transcripts, Dr. Diaczuk emphasized that determining the victim's positioning was critical to determining where the shot originated from. What was unknown, even from Jones' statement and criminal trial testimony, was the direction the victim was facing at the moment the bullet struck his head. Knowledge of the shooter's position would allow someone reconstructing the scene to determine the victim's position. But if both the victim's and the shooter's positions are unknown, then someone reconstructing the scene to determine the shot angle cannot make conclusions about one from the other. In other words, there cannot be two unknowns.
Dr. Diaczuk specifically took issue with Dr. Lee's testimony during the criminal trial because it was more specific about the shooter's position than could be determined. That is, Dr. Lee's testimony indicated the shooter's position with a precision that was not supported by statements or forensic evidence. A further criticism was that Dr. Lee sought to verify information provided by a detective regarding the shooter's location, instead of conducting testing that explored various locations to either rule out or confirm a location. The photographs of the reconstruction show that the mannequin was aligned the same way, whether kneeling or standing, and that it does not appear as though those reconstructing the scene considered the victim might be facing in some other direction. This left other possible trajectories unexplored. Dr. Diaczuk was not aware of efforts undertaken by Dr. Lee to verify the information provided to Lee by a detective suggesting the shooter's location. For example, Dr. Diaczuk did not know whether Dr. Lee reviewed the autopsy report.
Dr. Diaczuk stated that if retained at the time of the criminal trial, that he would have been able to assist defense counsel in challenging the reconstruction. An expert such as Dr. Diaczuk could have been prepared to testify about defects in the reconstruction and better scientific practices, and offered alternative reconstruction theories.
GSR residue testing was also addressed during Dr. Diaczuk's testimony. An expert would have reviewed the laboratory documents and reviewed the protocols with defense counsel, as well as made recommendations about what issues defense counsel could emphasize. As with the reconstruction evidence, Dr. Diaczuk reviewed the testimony and evidence pertaining to GSR testing. Dr. Diaczuk stressed that there are many, many environmental sources of lead and that the extent of this commonality was not brought out enough.
Attorney Zeldis offered his opinion regarding Dr. Lee's reconstruction report and the GSR testing performed on the white jacket. For example, Zeldis noted that Meisler's handling of the cross-examination of O'Brien could have more extensively explored the many sources of lead on the white jacket. Zeldis maintained Meisler's questioning was unfocused, going into harmless sources of lead and then just stopping such questioning. This forensic evidence proved critical to the Supreme Court's subsequent determination that while there were several instances of prosecutorial misconduct or impropriety, they were harmless in large part because of the forensic evidence supporting the petitioner's conviction. Stated another way, Zeldis, who has the benefit of hindsight, in particular that the Supreme Court emphasized the forensic evidence to the degree it did to find the prosecutorial misconduct was harmless error, faults Meisler's decisions.
According to Zeldis, there was a need to consult with an expert and that was apparently not done by Meisler. Zeldis rendered the opinion that reasonably competent counsel would have consulted with an expert. Nevertheless, it was clear to Zeldis that Meisler was prepared for trial, but that Meisler did not explore areas that could have been explored. For example, an expert would have broadened the potential sources of the lead. An expert could also have been used to demonstrate that Dr. Lee's objective in the reconstruction was to pinpoint a shooting location consistent with Latour's statement and testimony.
3. Police interrogation techniques in order to counter the introduction of statements
The third and final area in which Meisler allegedly performed deficiently centers on the police interrogations and the techniques employed by the police. The petitioner avers that Meisler "failed to conduct adequate investigation and research, including consulting and/or presenting testimony by appropriate experts, on police interrogation techniques and their demonstrated effects on witnesses in order to counter the introduction of statements both at the hearing in probable cause and at trial (pursuant to State v. Whelan, 200 Conn. 743 (1986)) of state's witnesses David Stebbins and Jared Gilkenson, whose statements contradicted their in-court testimony which was exculpatory to the defendant." Amended Petition, at pg. 3.
Detective Martin Graham testified that he interviewed Jared Gilkenson. At the time, Graham was assigned to the Eastern District Major Crime Squad tasked with investigating homicides and major crimes. Graham acknowledged that he was aware of various interviewing techniques and had attended various courses and schools in which interviewing techniques were taught. The purpose of observing witnesses is to attempt to discern whether they are being truthful. Graham emphasized that the overarching objective is to uncover the truth. While there are techniques that employ making mistakes in preparing witness's statements, Graham does not employ such techniques.
On cross-examination, Graham stated that Jared Gilkenson's parents were brought in for the interview. Graham employed a question-and-answer format to try to get information in a truthful manner. According to Graham, his approach is not to intimidate witnesses; instead, he treats people the way in which he would want to be treated. In the presence of Gilkenson and his parents, the detective was friendly, cordial and polite. During the second interview with Gilkenson, the investigators were armed with new information. The court credits this testimony.
Graham went on to testify on redirect that Gilkenson said that the petitioner was the shooter and that he saw him running back to the car with a rifle. These statements from Gilkenson can be verified by the other statements given by the occupants of Brandy Stebbins' car. Gilkenson's mother, Judy Gilkenson, testified at the habeas trial that she told her son to tell the truth. Graham estimated, at most, this interview with Gilkenson lasted two and one-half hours. There is no credible evidence to persuade this court to conclude the circumstances of the taking of the second statement, albeit inculpatory and inconsistent with Gilkenson's in-court and out-of-court statements, either were ripe for fabrication or, at the very least, suggest Gilkenson was dispossessed in his ability to distinguish fact from fiction. He was not of so tender an age or intellect to convince this court he was coerced, threatened or overcome by motives other than to speak the truth.
Detective Richard Bedard, another of the officers involved in the investigation and who conducted interviews, testified about his training on interviewing techniques. Like Graham, Bedard during this investigation was part of the state police Major Crime Squad. Bedard testified that although he was taught a number of interviewing techniques, he adopted his own system or program. Bedard's system or program used body language and responses to help determine truthfulness. Bedard employed his own interviewing regimen when he interviewed David Stebbins, Jr. during his second interview. Bedard did not, however, participate in Stebbins' first interview. According to Bedard, his approach was to interview Stebbins, utilizing the information obtained from Latour that he had observed the petitioner exit a vehicle, run by buildings, followed by a pop sound, and then saw the petitioner carrying something. While Bedard recalled Stebbins being asked why he was not telling the truth, he could not recall using investigative efforts that intentionally insert errant information. Bedard further testified that bluffing was not used to obtain evidence from Stebbins.
Bedard testified that because the team questioning Stebbins was unsure of exactly what happened, but were using the information provided by Latour, the interviewers wanted to continue talking with Stebbins to see what information he would provide. Bedard indicated that Stebbins was not told it would be helpful if he were cooperative, and that there were no expressions of sympathy for Stebbins to solicit responses. According to Bedard, the interviewers' approach was to focus on the inconsistencies and determine Stebbins' involvement. That is, whether Stebbins was involved in the shooting or was covering up for someone. Bedard also testified that he did not make the interview long to pressure Stebbins, did not share information with him but instead let Stebbins tell what he knew, and did not use leading questions. Bedard testified there were no threats, Stebbins was not deprived of sleep, nor was Stebbins accused of shooting the victim. The court finds Bedard's testimony to be highly credible.
Detective Charles Sarant, who helped interview Jared Gilkenson, testified at the habeas corpus trial. Sarant testified that the interviewers did not utilize any bluffing techniques during the interview, at which Jared Gilkenson's parents were present. Sarant credibly testified that he does not lie to people because he does not want people to lie to him. Sarant further indicated that he did not intentionally make mistakes to prompt corrections. The interviewers kept encouraging Jared Gilkenson to tell the truth. At no point did the interview become threatening, and the interviewers were never asked to calm down or leave. The conversation was, according to Sarant, cordial even though Jared Gilkenson did get upset during portions of the interview.
The petitioner presented testimony from Dr. Fadia Narchet, a legal psychologist. Dr. Narchet testified that an expert in police interviewing techniques, if retained, would have been able to identify interviewing techniques and advised counsel about questions to ask about the techniques. According to Dr. Narchet, the testimony by law enforcement witnesses all seemed to indicate that the petitioner confessed after interviewers used the technique involving false information. Trial defense counsel did not, per Dr. Narchet, explore the similarities and differences in the law enforcement witness's testimonies, as well as regarding other techniques such as bluffing, suggesting new information has come to light, isolating the interview subject, or that it is in the person's best interest to comply. All these points were not developed by Meisler.
The court in part granted the respondent's motion in limine. The court conducted a Porter hearing to determine the admissibility of Dr. Narchet's opinion testimony. See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). Even if the testimony satisfied Porter, the court would not permit the expert to offer an ultimate opinion concerning the veracity of any statements made to the police. Ultimately, the court issued an extensive oral ruling subsequent to the Porter hearing, thereby granting the motion in limine precluding Dr. Narchet's testimony as to what she would have said in 2000 at the time of the criminal trial.
On cross-examination, Dr. Narchet admitted that she has not been trained in interviewing, nor has she conducted interviews of witnesses or suspects in criminal cases. The concern with employing any one or all of these techniques, the witness testified, is that law enforcement officials could elicit false confessions. Dr. Narchet did not know whether Meisler's trial strategy involved not asking certain questions. Dr. Narchet was not aware of the police officers' observations during the interviews, nor was she aware of the tone of voice or demeanor of either witnesses or officers. Most importantly, Dr. Narchet acknowledged that just because a technique is used does not mean that the technique induced a false statement.
4. Discussion
The foregoing findings of fact, albeit lengthy, have been made by this court for the purpose of determining whether attorney Meisler performed deficiently. "In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions . . . Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.
"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 . . . A fair assessment of attorney performance requires that every effort 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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way."
"The availability of intrusive post-trial inquiry into attorney performance or 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."
"Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." (Internal citations and quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 688-91. See also, Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186, cert. denied (2009).
". . . [T]he truthfinding process is better served if the witness' testimony is submitted to `the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.' Imbler v. Pachtman, 424 U.S. 409, 440 (1976) (White, J., concurring in judgment) . . ." (Footnote omitted.) Briscoe v. LaHue, 460 U.S. 325, 333-34, 103 S.Ct. 1108, 1115 (1983) (discussing the goal of the trial process in the context of deciding that Title 42 U.S.C. § 1983 does not authorize a convicted state defendant to assert a claim for damages against a police officer for giving perjured testimony at the defendant's criminal trial).
The term `crucible' means: "1. a container made of a substance that can resist great heat, for melting, fusing, or calcifing ores, metals, etc. 2. the hollow at the bottom of an ore furnace, where the molten metal collects 2. a severe test or trial." Webster's New World Dictionary, 2nd COLL. ED. Thus, subjecting evidence and witnesses to the crucible of a trial or cross-examination implies both collecting and fusing, as well as subjecting to the rigors and tests of a trial.
"The United States Court of Appeals for the Second Circuit has stated: `[T]here is no per se rule that requires trial attorneys to seek out any expert.' (Emphasis in original; internal quotation marks omitted.) Gersten v. Senkowski, 426 F.3d 588, 609 (2d Cir. 2005), cert. denied sub nom. Artus v. Gersten, U.S., 126 S.Ct. 2882, 165 L.Ed.2d 894 (2006)." Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 76 n. 7, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008). "The United States Court of Appeals for the Fourth Circuit has stated: `The Constitution does not entitle a criminal defendant to the effective assistance of an expert witness. To entertain such claims would immerse federal judges in an endless battle of the experts . . .' Wilson v. Green, 155 F.3d 396, 401 (4th Cir.), cert. denied sub nom. Wilson v. Taylor, 525 U.S. 1012, 119 S.Ct. 536, 142 L. Ed.2d 441 (1998)." Peruccio v. Commissioner of Correction, supra, 107 Conn.App. 77 n. 8.
Based on the credible evidence presented at the habeas corpus proceeding, when viewed together with the criminal trial transcripts, the court is hard-pressed to find fault with Meisler's approach. Meisler and his investigator, Mr. Rubino, investigated the facts and circumstances surrounding the events at issue. They also investigated the reconstruction and potential forensic evidence. Meisler then made the decision to rely on cross-examination instead of calling his own expert witnesses. From its review of his cross-examination, the court can only describe Meisler's cross-examination as exemplifying the skills of a well-seasoned and experienced trial attorney. Meisler's skilled, artful and focused cross-examination highlighted weaknesses, contradictions and flaws in witness's testimony.
The court fails, contrary to attorney Zeldis' impassioned entreaty that this matter cried out for expert testimony, to discern any real or tangible benefit to be gained from presenting the expert testimony as alleged by the petitioner. Meisler's decision, made after a thorough investigation and discussions with the state's experts, to rely on cross-examination was eminently reasonable trial strategy. Stated somewhat differently, constitutionally adequate representation does not require expert testimony when counsel, after thorough investigation, relies on cross-examination as the crucible that will test and contest the evidence being presented to the fact finder. To argue that the jury, in essence, was not capable of deciding this case without an expert gives little credit to the common sense and reasonable judgment which the jurors are presumed to possess. The right of individual voire dire guaranteed by the Connecticut Constitution would be a hollow right, indeed, if it were viewed or employed as some perfunctory exercise to select a random group of individuals without first probing each eventual juror's ability or desire to bring to the process a pedestrian sense of fairness and analysis in deciding whom to believe and what testimony to credit.
Article one, § 19, of the constitution of Connecticut, as amended by article four (". . . The right to question each juror individually shall be inviolate").
Simply put, it was the province of the jury to decide whether to believe Brandy Stebbins, Jared Gilkenson and David Stebbins, as well as which statements to accredit. Similar to the court itself in a habeas trial, the jurors in the underlying trial were in the best position to judge credibility. Expert testimony was neither necessary nor desirable where the record reflects purposeful questioning through the art of cross-examination by Meisler, who in no small measure obtained an acquittal on the charge of murder and the more severe lesser included offense. Accordingly, the allegation of ineffective assistance of counsel is denied as to all three bases alleged in count one of the amended petition.
II. Deprival of right to impartial jury
In the second count of the amended petition, the petitioner asserts that he was deprived of his right to an impartial jury. This claim is based on the factual allegations, as contained in the amended petition, and recited below:
"At the time of the petitioner's criminal trial, Rene Barbeau was an inspector employed by the Office of the State's Attorney in the trial court. Inspector Barbeau was assigned to assist the prosecutors representing the State in the trial of the petitioner. Inspector Barbeau's name was mentioned to the venire panels at the time of voir dire and he appeared in the courtroom before the jury during voir dire and trial."
"Kathy Thoren was summoned and appeared as a member of one of the venire panels during jury selection for the petitioner's trial. Kathy Thoren was a personal friend during high school of Donna M. Moran, who is a sister of Inspector Barbeau. Kathy Thoren failed at the time of voir dire and at any time thereafter to disclose any acquaintance with a member of the State's Attorney's staff or his family. Kathy Thoren was chosen as an alternate juror, and subsequently became a member of petitioner's jury upon excuse of a juror due to illness. Kathy Thoren exhibited an emotional reaction to the subject matter of the trial, telling an employee of the clerk's office that she felt nauseous thinking of serving on the jury when called for the beginning of trial."
"During proceedings, Kathy Thoren developed an interest in one of the State's Attorneys trying the case, Senior Assistant State's Attorney Vincent Dooley, and wished to pursue a relationship with him. Prior to the sentencing, Kathy Thoren made efforts to locate Donna M. Moran, and called her to ask that Ms. Moran communicate through her brother to the Assistant State's Attorney in order to determine whether he might wish to meet and explore a possible relationship. Ms. Thoren made repeated attempts through Ms. Moran to communicate with the Assistant State's Attorney."
"The Assistant State's Attorney was informed of Ms. Thoren's interest by Inspector Barbeau. The Assistant State's Attorney reportedly told Inspector Barbeau that he felt dating Ms. Thoren could be a problem and that he was considering reporting the contact to judicial authority. The Assistant State's Attorney did not report the matter."
"At some point, the Assistant State's Attorney and Ms. Thoren did in fact begin a relationship and they were married in September 2001. During an investigation conducted by the Office of the Chief State's Attorney into their relationship, neither the Assistant State's Attorney nor his wife, the former Kathy Thoren, disclosed her attempts to contact the Assistant State's Attorney prior to sentencing in the petitioner's case." Amended Petition, at pgs. 3-5.
A. Additional findings of fact
On some unspecified date, presumably during the summer of 2003, the Office of the Chief State's Attorney received information from an anonymous source about the relationship that developed between the prosecutor and the former juror. Petitioner's Exhibit 1. A Chief Inspector and another Inspector interviewed Mr. Dooley, who explained that he had never known Kathy Thoren prior to the criminal trial. Dooley informed them that the verdict was returned in January 2000, and that he ran into Thoren in a grocery store in July 2000. Thoren subsequently called Dooley to ask advice about her son, who had been in an accident and had been issued a ticket. Thereafter, the two began to date and eventually married, with Thoren taking on Dooley's name. Id.
On July 18, 2003, the two investigators interviewed Mrs. Dooley, whose explanation of the chain of events mirrored those of Mr. Dooley. Mrs. Dooley's explanation, as did her then husband's, indicated that she called Dooley to ask for advice about her son after the July 2000 chance encounter at the grocery store. One of the inspectors asked Mrs. Dooley who made the first contact to begin a dating relationship after the grocery store encounter. Mrs. Dooley did not remember who made the first contact, nor could she remember who pursued whom in the relationship. Id.
The two investigators also interviewed Daniel D. Dumas, who was in a relationship with Thoren for nine years that continued at least until the time of Thoren's service as a juror in the criminal trial. Dumas indicated to the investigators that he and Thoren broke up sometime close to Valentine's Day 2000, at which point he moved out. Id.
The Chief Inspector called Inspector Barbeau in response to a voice mail. Barbeau informed the Chief Inspector that shortly after the jury's verdict, Thoren called Moran, his sister, and asked if she would talk to Barbeau about meeting Dooley. While Barbeau indicated that this information showed Thoren did not know Dooley during the criminal trial and did not date him during the trial, the Chief Inspector was concerned that this information conflicted with the information already provided by Mr. Mrs. Dooley. Id.
The two inspectors then spoke with Moran. Moran confirmed that she had sat in on one day of evidence in the petitioner's criminal trial. Moran saw that Thoren was on the jury, but did not have the impression that Thoren recognized her in the courtroom. At some time post-verdict but prior to sentencing, Moran received a call from Thoren in which Thoren asked about Moran contacting Barbeau to find out if Dooley was interested in meeting Thoren. According to Moran, she eventually spoke to her brother and passed on the request. Moran thereafter called back Thoren and told her Dooley was not interested. Moran indicated that Thoren continued to call and express interest in Dooley, calling 6-8 times before ending the calls to Moran. Id.
The Chief Inspector again spoke with Barbeau. Barbeau indicated that he had spoken with Dooley more than once about Thoren, but that Dooley was not interested and also concerned that there could be a problem if he dated Thoren. Id.
Having failed to uncover any information that demonstrated Dooley and Thoren had any contact, either direct or indirect, during the criminal trial, the Chief Inspector on July 28, 2003, recommended that the case be closed. After concluding that the investigation did not disclose any credible evidence of any misconduct, the investigation was closed on August 20, 2003. Id.
The foregoing investigation occurred during the pendency of the petitioner's direct appeal. More specifically: while his appeal, argued on May 23, 2003, was pending in the Supreme Court, but prior to that court's decision being officially released on October 28, 2003. A letter dated July 21, 2003, from then Chief State's Attorney Christopher Morano to Senior Assistant State's Attorney Timothy J. Sugrue, who was lead appellate counsel for the state, apprised Sugrue of the investigation and its failure to uncover any prosecutorial and juror improprieties. Id.
By letter dated October 16, 2003, Sugrue informed Attorney Moira Buckley, appellate counsel on the petitioner's direct appeals, of the investigation into potential juror and/or prosecutorial misconduct. Sugrue's letter was accompanied by copies of the investigation's documents, with the dates of birth, home addresses and extraneous information about Thoren's prior relationship and living arrangements with Dumas redacted. One day earlier, on October 15, 2003, Sugrue filed a pleading dated October 14, 2003, and captioned "Disclosure of anonymous and unsubstantiated allegation of juror and/or prosecutorial misconduct," with the criminal court where the petitioner was successfully prosecuted. Petitioner's Exhibit 2. This disclosure was certified to Buckley, who in turn faxed the disclosure to Attorney Kalisha Raphael, who represented the petitioner earlier in the instant habeas corpus matter, including the pendency of the direct appeal. On October 21, 2003, Buckley forwarded the documents she had received from Sugrue to Raphael. Petitioner's Exhibit 1.
At the habeas trial, Buckley testified that appellate claims are limited to those in the record. The allegations of potential juror and prosecutorial misconduct were not in the record on appeal and could not, therefore, have been raised by her.
Because of this, the respondent's claim that the petitioner has procedurally defaulted as to the claim in count two seems misplaced. The purported impropriety was not reported until the appeal had been argued before the Supreme Court and the parties were awaiting that court's decision. The disclosure by the state of the allegations and ensuing investigation to Buckley a scant few days prior to the official release of the Supreme Court's decision, coupled with there being nothing in the record for appellate counsel to challenge, demonstrates the inapplicability of the procedural default defense given the facts and circumstances of this case.
Senior Assistant State's Attorney Dooley testified at the habeas corpus proceeding that the other prosecuting attorney, Roger Caridad, did most of the jury selection, although Dooley could not recall if Caridad had conducted the voir dire of Thoren. Dooley testified that he and Thoren met at the grocery store during July 2000. The two recognized each other from the trial. Shortly thereafter, in August 2000, they started dating each other. This dating relationship, according to Dooley, followed Thoren's call asking for assistance with her son. Dooley testified that he had no contact with Thoren prior to the chance encounter at the grocery store and that he believes he asked out Thoren.
Dooley further testified about his interactions and conversations with Barbeau. According to Dooley, there were several conversations about Thoren after the jury returned its verdict and had been discharged. Dooley testified about the 2003 investigation, which seemed to focus on the relationship's timeline. The conversations with Barbeau did not come up in the investigation and Dooley did not volunteer information about the conversations between him and Barbeau. Dooley testified that he never spoke with Thoren during the trial, had no interest in her during the trial, had no relationship with her during the trial, and did not have any contact of a personal nature with Thoren until August 2000.
Thoren, now Mrs. Dooley, also testified at the habeas corpus proceeding. Thoren testified that she did not develop feelings or interest in Dooley until after the trial. According to Thoren, she and Dumas were in a relationship until February 2000. Thoren indicated that she believes Dooley asked her out and that the dating relationship developed thereafter, and that the relationship developed mutually.
Thoren did not recall seeing either Inspector Barbeau or Donna Moran at the criminal trial. It was Moran, according to Thoren's testimony at the habeas corpus trial, who called her and asked if she was seeing anyone and whether she was interested in meeting Dooley for coffee. Thoren asked Moran if she could find out more information. Thoren further testified that the 2003 investigation did not raise questions about phone calls between her and Moran and that she did not mention such contact between her and Moran.
Inspector Barbeau, now retired from the Division of Criminal Justice, also presented testimony at the habeas corpus trial. Barbeau testified that he could not recall when he was sequestered during the criminal trial. He was not aware that his sister and Thoren were acquainted in high school. Barbeau did not recall whether his sister mentioned, after her visit to the trial, that she knew Thoren. Barbeau was not aware during the criminal trial itself that Thoren had become either a juror or an alternate. According to Barbeau, his sister called him to inquire on Thoren's behalf if it would be appropriate for Thoren to attend the sentencing. Moran also communicated that Thoren was interested in Dooley.
According to Barbeau's testimony, he did go to Dooley, who after the first relayed telephone inquiry by Thoren did not appear similarly interested in her. Moran contacted Barbeau perhaps five more times via telephone and continued to relay Thoren's interest in Dooley. Barbeau communicated some of these additional inquiries to Dooley, whose reaction consistently was that contact between him and Thoren at that time was not appropriate. On cross-examination, Barbeau expressed his absolute confidence that the phones calls by Moran about Thoren occurred after the verdict, as well as that he was not aware of any contact between Dooley and Thoren during the trial.
The final witness who testified regarding the events at issue was Moran. She testified that she recognized Thoren, who she knew by her childhood surname "Bonneville" during their time together in elementary and high school, when she attended the criminal trial. Thoren did not appear to have recognized her in the courtroom. Although Moran had an unlisted telephone number and had no contact with Thoren after high school, she nevertheless heard from Thoren prior to the sentencing. Thoren expressed interest in Dooley and Moran passed on Thoren's expressed interest to Barbeau on more than one occasion. At some point, Moran got tired of being an intermediary and did not pass on all of Thoren's messages. Lastly, Moran testified that she never got a response from Dooley to Thoren's inquiries.
B. Discussion
"`Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution . . . [An] accused [is entitled to] a fair trial by a panel of impartial, indifferent jurors . . . The modern jury . . . determines the case solely on the basis of the evidence and arguments . . . [These] rules . . . assure that the jury will decide the case free from external influences . . .' (Internal quotation marks omitted.) State v. Portee, 55 Conn.App. 544, 565-66, 740 A.2d 868 (1999), cert. denied, 252 Conn. 920, 744 A.2d 439 (2000)."
"`Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations [or the possibility] of jury [bias or] misconduct will necessarily be fact specific . . . We [therefore] have limited our role, on appeal, to a consideration of whether the trial court's review of alleged [or possible] jury misconduct can fairly be characterized as an abuse of its discretion . . . Although we recognize that trial [c]ourts face a delicate and complex task whenever they undertake to investigate [the possibility] of juror misconduct or bias . . . we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred . . . Ultimately, however, [t]o succeed on a claim of [juror] bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact.' (Citations omitted; internal quotation marks omitted.) State v. Mukhtaar, supra, 253 Conn. 296-97."
"[A] trial court should consider the following factors in exercising its discretion as to the form and scope of a preliminary inquiry into allegations [or the possibility] of jury misconduct [or bias]: (1) the criminal defendant's substantial interest in his constitutional right to a trial before an impartial jury; (2) the risk of deprivation of the defendant's constitutional right to a trial before an impartial jury, which will vary with the seriousness and the credibility of the allegations of jury misconduct; and (3) the state's interests of, inter alia, jury impartiality, protecting jurors' privacy and maintaining public confidence in the jury system . . ."
"Consequently, the trial court has wide latitude in fashioning the proper response to allegations [or the possibility] of juror bias . . . We [therefore] have limited our role, on appeal, to a consideration of whether the trial court's review of alleged [or possible] jury misconduct [or bias] can fairly be characterized as an abuse of its discretion . . . [W]hen, as in this case, the trial court is in no way responsible for the [possible] juror misconduct [or bias], the defendant bears the burden of proving that the misconduct [or bias] actually occurred and resulted in actual prejudice. (Internal quotation marks omitted.) State v. Bangulescu, 80 Conn.App. 26, 49-50, 832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003)." State v. Sinvil, 90 Conn.App. 226, 240-41, 876 A.2d 1237, cert. denied, 275 Conn. 924, 883 A.2d 1251 (2005).
The court has extensively summarized the evidence pertaining to the purported improper conduct between a juror in the criminal trial and one of the prosecuting attorneys. Simply put, although there are some minor discrepancies in the witnesses' testimonies, there is no evidence that takes the claim of juror and prosecutorial misconduct out of the realm of speculation. There is no evidence whatsoever indicating that Thoren was anything but impartial or indifferent, nor that Dooley did anything that would affect her impartiality or indifferent approach by being an external influence. There also is no indication that Thoren was subject to any external influences in arriving at her verdict. It bears emphasis that Thoren was one of twelve jurors who, after rendering not guilty verdicts as to the charges of murder and the lesser included offense of intentional manslaughter in the first degree with a firearm, were individually polled after returning a guilty verdict on the lesser included offense of reckless manslaughter in the first degree with a firearm.
Accordingly, the petitioner has failed to prove that he was deprived of a fair trial by an impartial jury. The claim in count two, therefore, is denied.
Conclusion
For all the foregoing reasons, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall submit a judgment file to the clerk within thirty days of the date of this decision.
It is so ordered.