Opinion
No. CV05-4000672
January 14, 2010
Memorandum of Decision
The petitioner, Vernon Vassell, alleges in his petition for a Writ of Habeas Corpus filed on September 15, 2005 that his conviction for murder in violation of CGS § 53a-54a(a) was obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of the effective assistance of his trial defense counsel.
This matter came on for trial before this Court on December 2, 2009 at which time testimony was received from the petitioner's trial defense counsel, Atty. Erroll Skyers, and two women who had not been called as witnesses at the petitioner's trial, Ms Alicia Pesci and Ms. Aida Crespo. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and documentary evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Fairfield entitled State v. Vassell. He was charged with Murder in violation of CGS § 53a-54a.
2. Attorney Erroll Skyers represented the petitioner at trial and Atty. Frederick Paoletti on appeal.
3. As regards the charged crimes, the jury reasonably could have found the following facts. "The jury reasonably could have found the following facts. On May 26, 1997, a Memorial Day picnic took place at a house on Charles Street in Bridgeport. Late in the afternoon or early evening, a burgundy colored automobile occupied by three or four men, identified as Dwight Daly, Naja [Fagin] and the defendant, nicknamed Markie, arrived at the house. An argument ensued between the men who had arrived and Marcus Colbert, Terry Perkins, Eric Wells, James Harris and Glenn Jones, all of whom were already in attendance. During the argument, the defendant drew a semiautomatic pistol from his waistband and fired multiple times, striking both Colbert and Jones. The defendant and his companions then fled the scene in their automobile. Colbert was transported to St. Vincent's Hospital in Bridgeport where he subsequently died from multiple gunshot wounds."
State v. Vassell, 79 Conn.App. 843, at 844 (2003).
4. At trial, the petitioner claimed he was not the murderer.
5. The petitioner, after a trial to the jury, was convicted of all counts.
6. The petitioner was thereafter sentenced by the court, Hauser, J., to a total effective sentence of sixty years to serve.
7. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). As a result, the burden of proof in a habeas petition rests upon the petitioner.
In the instant case, the petitioner alleges that his trial defense counsel was ineffective for failing to present the testimony of two witnesses, Ms. Pesci and Ms. Crespo, to the jury. The gravamen of the complaint is that had he done so the jury would not have convicted the petitioner of this murder.
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's performance may have been substandard, will result in denial of the petition.
In the instant case, the petitioner must first prove that it was deficient performance by Attorney Skyers to elect to not call these two women as witnesses. If so, then the petitioner must next prove that there is a reasonable probability that he would have been acquitted of Murder had he done so. Now, it is clear that the decision as to which witnesses to call is a tactical decision that rests within the sound discretion of the trial counsel. In general, a habeas court is admonished not to second guess tactical decisions of counsel, however, such decisions, while entitled to great weight, must, of course, be reasonable decisions.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. It is indisputable fact that many times if one had foreknowledge of certain events; different courses might well have been taken. Likewise, a habeas court, knowing the outcome of the trial, "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
Moreover, "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance 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." Strickland v. Washington, 466 U.S. 668 at 688 (1984).
The petitioner did present the testimony of the two witnesses that he now says would have been the key to an acquittal. Interestingly, this is significantly similar to the petitioner's direct appeal before the Appellate Court. In his direct appeal, the petitioner argued that the evidence adduced at trial was insufficient to support a finding of guilt beyond all reasonable doubt. The Court, in a per curiam decision stated that "there was ample evidence to support the jury's verdict. The state produced eyewitnesses Wells, Perkins and Harris, each of whom testified that the defendant was present at the scene and was the shooter. The testimony of Marshall Robinson, a tool marks and firearms examination expert, supported the testimony of Wells, Harris and Perkins regarding the number of gunshots fired and the existence of only one shooter. In addition, associate state medical examiner Malka B. Shah testified that the victim had died from multiple gunshot wounds." State v. Vassell, 79 Conn.App. 843 (2003). We start then from the premise that there was sufficient evidence of guilt. If one adds the testimony of Alicia Pesci and Aida Crespo to the existing evidence, it is clear that there still is enough evidence to support the finding of guilty. Neither woman added anything that could be said to establish reasonable doubt.
Indeed, Ms. Crespo was, at the time of the murder, a 12-year-old child. Her memory is not particularly clear as to the events and contains several significant errors that undermine the credibility to be attached to her testimony, not due to its falseness, but its inaccuracy.
The burden of persuasion in a habeas case rests with the petitioner because of the "fact that in many cases an order for a new trial may, in reality, reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, 229 Conn. 397 at 419 (1994). There is, therefore, a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
This admonition from the United States Supreme Court bears reiteration. "A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged `action might be considered sound trial strategy' . . . [C]ounsel is strongly presumed to have tendered adequate assistance and made all significant decisions in the exercise of reasonable and professional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90. Despite the ardent, and undoubtedly sincere, arguments of petitioner's counsel this court must find the strategic decisions of counsel to be within the acceptable range of performance. There is, therefore, neither deficient performance nor prejudice.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.