Opinion
No. CV 04 0004409
January 14, 2010
MEMORANDUM OF DECISION
The petitioner, Juan Vazquez, alleges in his petition for a writ of habeas corpus filed on February 5, 2004, and amended on October 6, 2005, and again on February 27, 2009, that he was denied the effective assistance of trial counsel in violation of the fifth and sixth amendments to the United States Constitution and of article first, § 8 of the Connecticut Constitution. He also alleges actual innocence. The petitioner is requesting that this court reverse his convictions and order a new trial.
The matter came to trial on March 4, 2009 and April 30, 2009. The court heard testimony from Madelyn Cruz and Sheila Calderon, eyewitnesses to the crime, Donald Gates, a private investigator who was hired by Attorney Donald Cardwell to investigate the case, Luis Lebron, Cruz' brother, Maria Vazquez, the petitioner's mother and Attorney Nicholas Cardwell, who represented the petitioner throughout his criminal trial except for part of jury selection, at which time Donald Cardwell was representing the petitioner. The petitioner entered into evidence transcripts of the underlying criminal proceedings, Calderon's police statement, Cruz' police statement, the judgment file and an excerpt from a transcript of a grievance hearing at which Donald Cardwell and Nicholas Cardwell testified in response to a grievance filed against Donald Cardwell. The respondent proffered several transcripts of the petitioner's underlying criminal proceedings. The court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was charged in the Judicial District of Hartford, under Docket No. CR97 170461, with murder in violation of General Statutes § 53a-54a and conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a.
2. On October 23, 1997, the petitioner entered pleas of not guilty and elected a jury trial.
Petitioner's Exhibit [Exh.] 3, p. 11.
3. Donald Cardwell represented the petitioner during the pretrial proceedings and some of the jury selection. He is deceased.
4. Nicholas Cardwell assumed representation of the petitioner during jury selection and represented him throughout the criminal trial.
5. The jury trial commenced on August 7, 2001 and proceeded on August 8, 10, 13, 14 and 15, 2001 before the Honorable Bernard Gaffney.
Respondent's Exh. F-I.
6. On August 15, 2001, the jury found the petitioner guilty on both counts.
Respondent's Exh. 1, pp. 152-53.
7. On October 19, 2001, the court, (Gaffney, J.T.R.), sentenced the petitioner to sixty years incarceration on the murder conviction and twenty years on the conspiracy to commit murder conviction, consecutive to the sentence of murder, for a total effective sentence of sixty years incarceration.
Petitioner's Exh. 15.
8. The petitioner appealed his convictions, which were affirmed by the Appellate Court in State v. Vazquez, 79 Conn.App. 219, 221, 830 A.2d 261, cert. denied, 266 Conn. 918, 833 A.2d 468 (2003).
9. As stated by the Appellate Court, the jury reasonably could have found the following facts regarding the underlying offenses. "On the night of July 29, 1996, John Townsend, the victim, and John Okon went to a bar in Southington for a few drinks. At around midnight, the two decided to pool their money and attempt to buy some cocaine. They then drove to a housing project on Willow Street in New Britain. Okon remained in the car as the victim got out and approached some men to ask where cocaine might be purchased. After some discussion, the victim returned to the car with the cocaine. As they began to drive off, something hit the car, and the victim instructed Okon, who was driving, to stop. The victim exited the car to investigate. Moments later, Okon heard a shot, got out of the car and saw the victim lying on the ground, dead. Okon drove away from the scene until he found a police officer to whom to report the event." State v. Vazquez, supra, 79 Conn.App. 221.
10. The court will discuss additional facts as needed.
DISCUSSION
The petitioner alleges, in count one of his second amended petition, that he was denied the effective assistance of counsel in selecting some jury members because Donald Cardwell had a medical condition that allegedly affected his ability to practice the law. In count two, he alleges that he was denied the effective assistance of counsel throughout his criminal trial because Nicholas Cardwell failed to call material witnesses and to properly cross examine the prosecution's witnesses. In count three, the petitioner makes a claim of actual innocence.
I INEFFECTIVE ASSISTANCE OF COUNSEL
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier. (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). To prove prejudice, the petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006).
A Attorney Donald Cardwell
In count one of his second amended petition, the petitioner alleges that Donald Cardwell was ineffective during jury selection because he had a brain tumor. In his pretrial brief, the petitioner argues that he was constructively denied the effective assistance of counsel because Donald Cardwell was mentally incompetent at a critical stage of the proceeding and because his line of questioning during jury selection "was so limited as to render his assistance meaningless."
Based upon the testimony of Nicholas Cardwell at the habeas trial and the testimony of Donald Cardwell before the grievance committee on October 3, 2001, the court finds the following facts regarding Donald Cardwell's illness. In December 2000, Donald Cardwell was diagnosed with and treated for a brain tumor. Prior to Christmas that year, the doctor who diagnosed him with the brain tumor informed him that he had misdiagnosed him and slowly took him off the medication that he had proscribed to him. Around the first of the year in 2001, Donald Cardwell suffered a series of seizures. He was again diagnosed with and treated for a brain tumor. Donald Cardwell testified at the grievance hearing that "[he] went through a pretty tough period in January, February and March [2001]." He explained that "[he] was having problems with the medication, which was not working." In April 2001, he went to a cancer center in Houston, Texas for treatment. He had continuing treatment throughout April, May, June and July 2001. In July 2001, he began radiation treatment. He did not stop practicing the law until Easter of 2002.
Petiiioner's Exh. 18, p. 31.
Petitioner's Exh. 18, p. 31.
"In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the United States Supreme Court recognized a narrow exception to Strickland's holding. Cronic instructed that a presumption of prejudice applies in certain limited circumstances `when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance of counsel is so small that a presumption of prejudice is appropriate . . .' Id., 659-60. The court explained that no showing of prejudice is required when counsel is either totally absent or prevented from assisting the accused during a critical stage in the proceeding, when counsel `entirely fails to subject the prosecution's case to meaningful adversarial testing' and when a defendant is `denied the right of effective cross-examination.' Id., 659 n. 25. The United States Court of Appeals for the Second Circuit has stated that `[a]part from these rare instances . . . the Strickland two-part test of ineffectiveness generally applies.' United States v. Sanchez, 790 F.2d 245, 254 (2d Cir.), cert. denied, 479 U.S. 989, 93 L.Ed.2d 587, 107 S.Ct. 584 (1986)." Smith v. Commissioner of Correction, 89 Conn.App. 134, 137, 871 A.2d 1103, cert. denied, 275 Conn. 909, 882 A.2d 676 (2005).
The circumstances in the present case do not warrant an application of the narrow exception recognized in Cronic. This court agrees that "there is simply nothing inherent in an attorney's illness that necessarily will impede a spirited defense `most of the time' to justify finding the attorney's representation per se ineffective. Rather, given the varying effects health problems can have on an individual's ability to function, claims of ineffective assistance based on attorney illness are best suited to the fact-specific prejudice inquiry mandated by Strickland." Bellamy v. Codgell, 974 F.3d 302, 308 (2d Cir. 1992) (en banc).
Here, there is insufficient evidence that Donald Cardwell was ineffective in selecting a jury. Although he was being treated for a brain tumor at the time of jury selection, there is no evidence that his diagnosis affected his ability to effectively assist the petitioner in selecting jurors. At the grievance hearing, Nicholas Cardwell testified: "It is my recollection that by May or June [2001] [Donald Cardwell] was beginning to get things under control. He had no more seizures, because they were very small seizures, but these all stopped and he went back to fairly almost normal . . ." Donald Cardwell represented the petitioner on June 18 and 20, 2001 for jury selection. Shortly thereafter, he began radiation treatment. It is conceivable that Nicholas Cardwell took over the representation of the petitioner not because Donald Cardwell could not understand what was going on but because he needed to focus on his treatment.
Petitioner's Exh. 18, p. 59.
Moreover, a review of the transcripts of jury selection demonstrate that Donald Cardwell effectively represented the petitioner during this critical stage in the proceedings. The petitioner describes Donald Cardwell's line of questioning as limited. The court finds this to be an inaccurate description. Donald Cardwell asked the prospective jurors similar questions on topics such as their ability to accord the petitioner a presumption of innocence, their ability to set aside their emotions, their understanding of the prosecution's burden of proving the petitioner's guilt beyond a reasonable doubt, their ability to assess a police officer's credibility without regard to the fact that he or she is a police officer, and whether the fact that the petitioner was Hispanic would affect their judgment. These questions were both relevant and appropriate.
Respondent's Exh. A and B.
Furthermore, Donald Cardwell probed further when necessary. For example, he spent more time on the topic of the credibility of police officers with a prospective juror who was a former firefighter and discovered that there was, in the prospective juror's words, a "[c]ertain bond there," between firefighters and police officers. He accordingly exercised a challenge on this prospective juror. The transcripts of the jury selection also demonstrate that Donald Cardwell was engaged at all times. On the second day of jury selection, Donald Cardwell brought it to the court's attention that none of the prospective jurors thus far had been Hispanic and/or Puerto Rican. He stated: "I'm not moving beyond that at this point in time, but I am establishing, obviously, something that may lead to a motion depending on how this proceeds in the future." Based on the foregoing, it is clear that although Donald Cardwell was being treated for a brain tumor at the time of jury selection, his diagnosis and treatment did not prevent him from effectively representing the petitioner. The petitioner has failed to demonstrate any deficient performance on the part of Donald Cardwell and likewise has failed to demonstrate any resulting prejudice. Accordingly, the court finds that this claim has no merit.
Exh. A, pp. 127-28.
Respondent's Exh. A, p. 138.
Respondent's Exh. B, p. 1.
B Attorney Nicholas Cardwell
In count two of his second amended petition, the petitioner alleges that he was denied the effective assistance of counsel because Nicholas Cardwell, who represented him during his criminal trial, failed to call material witnesses and to properly cross examine the prosecution's witnesses. The petitioner claims that Nicholas Cardwell should have called the petitioner's mother, Maria Vazquez, and Donald Gates, the private investigator hired by the Cardwells to investigate the petitioner's case.
"The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Morant v. Commissioner of Correction, 117 Conn.App. 279, 303, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). "Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it." (Internal quotation marks omitted.) Conde v. Commissioner of Correction, 112 Conn.App. 451, 458, 963 A.2d 1007 (2009).
The petitioner has failed to show that his mother's testimony would have been helpful to his defense. The petitioner testified at his criminal trial that on the night of the shooting his mother beeped him while he was out with his girlfriend, Xiomara, and that he called her from Xiomara's aunt's house and she told him that the mother of his child, Evelyn Robles, needed diapers. From there, he testified, that he went to Stop Shop with Xiomara for the diapers, walked Xiomara part of the way home, delivered the diapers to Robles and then returned home around 11:30 p.m. On cross examination, he testified that he did not recall seeing or talking to anyone upon returning home. In fact, he admitted that only he could say where he was on the night of the shooting. At the habeas trial, Maria Vazquez testified that the petitioner was at home with her until he received a phone call from Robles instructing him that she needed diapers. According to her, he left home around 10:30 p.m. that night to get the diapers and returned around 11:30 p.m. She further testified that she discussed being called as a witness at the criminal trial with the Cardwells but that they decided that she should not testify because as the mother of the accused, they did not believe that the jury would credit her testimony. Not only would his mother's testimony have contained inconsistencies with his own but despite his argument to the contrary, it would not have helped the petitioner establish an alibi. Maria Vazquez could not definitively testify that the petitioner was at home at the time of the shooting, and the petitioner admitted that no one but he could testify as to where he was at that particular time. Accordingly, the petitioner has failed to prove that the failure to call his mother as a witness deprived him of the effective assistance of counsel.
Respondent's Exh. I, p. 32.
Respondent's Exh. I, pp. 17-18.
Exh. I, pp. 42-43.
Likewise, he has failed to prove that he was denied the effective assistance of counsel by Nicholas Cardwell's failure to call Gates as a witness. Gates testified at the habeas trial that he was hired by the Cardwells to investigate the case. He further testified that he spoke to Cruz who told him that she was afraid of losing her children and that her state aid had been taken away from her before she gave a statement to the police concerning the shooting and that her state aid was reinstated shortly after she gave her statement. He also stated that Cruz told him that she had been drinking and smoking marijuana on the day of the shooting. At the criminal trial, during cross examination, Cruz admitted that she told Gates that she was afraid of losing her children, that her state aid had been restored a couple of weeks after she gave a statement to the police about the shooting and that she had been drinking and smoking marijuana on the day of the shooting. She explained that she told Gates those things so that he would leave her alone.
Respondent's Exh. H, pp. 85-88.
"Subsection (c) of § 6-10 of the Connecticut Code of Evidence provides in relevant part that `[i]f a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement, extrinsic evidence of the statement is inadmissible, except in the discretion of the court . . .' (Emphasis added.) Additionally, the appellate courts in this state have established that when a witness admits to making a prior inconsistent statement, additional evidence of the inconsistency is merely cumulative." State v. Bermudez, 95 Conn.App. 577, 584-85, 897 A.2d 661 (2006). Accordingly, since Cruz admitted to making the prior inconsistent statements to Gates it was not necessary for Gates to testify to impeach her testimony. In fact, his testimony would have been inadmissible unless the court were to have exercised its discretion and allowed it. Even if the court were to have allowed it, there is no reasonable probability that it would have changed the result of the proceedings, as it would have been merely cumulative evidence. Nicholas Cardwell effectively impeached Cruz' testimony without Gates' testimony. In short, the petitioner has failed to prove that he was denied effective assistance of counsel because Gates was not called as a witness.
The last claim that the petitioner makes regarding Nicholas Cardwell is that he rendered ineffective assistance by failing to effectively impeach material witnesses, namely Cruz and Calderon. This claim is meritless.
On cross examination of both Cruz and Calderon, Nicholas Cardwell successfully highlighted the inconsistencies between their testimony and the statements that they had previously provided to the police. Moreover, he elicited testimony from Cruz demonstrating that she had a motive to lie. On cross examination, Cruz testified that she continued to see the petitioner after the shooting and that she got mad at the petitioner after they broke up. She further testified that she was in court with her sister on the day that she gave her statement to the police and that her sister's lawyer had asked her if she knew anything about a murder and if she could give a statement. As mentioned supra, Nicholas Cardwell also impeached Cruz' testimony by asking her about the statements that she had made to Gates.
Respondent's Exh. G, pp. 125-33; Respondent's Exh. H, pp. 77-894.
Respondent's Exh. G, pp. 80-81.
Exh. G, p. 76.
Respondent's Exh. G, pp. 85-87.
As for Calderon, the petitioner argues that had Nicholas Cardwell interviewed her prior to the trial, he could have used the information obtained to impeach her testimony. Gates, the investigator hired by the Cardwells, testified at the habeas trial that Calderon repeatedly refused to speak to him. Nicholas Cardwell testified at the habeas trial that the petitioner believed that neither Calderon nor Cruz were going to testify at the trial. The court cannot find that Nicholas Cardwell's representation fell below an objective standard of reasonableness because he did not interview a witness who refused to speak with his investigator and who his client believed was not going to show up for the trial. In any event, there is no telling what Calderon would have told Gates. "Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).
II ACTUAL INNOCENCE
In count three of his second amended petition, the petitioner makes a claim of actual innocence.
"Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence . . . [Our Appellate Court], however, has held that a claim of actual innocence must be based on newly discovered evidence . . . [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009).
"[T]he proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009).
The petitioner asserts that newly discovered evidence exists showing that the trial testimony of Cruz and Calderon was perjured and coerced. This evidence consists of the testimony of Luis Lebron, Cruz' brother, to the effect that Cruz admitted to him after the petitioner's criminal trial that she had lied and the testimony of Calderon that she too had lied to the police because they had threatened her. This evidence is newly discovered because it could not have been discovered prior to the petitioner's criminal trial as it consists of statements made after the conclusion of the criminal trial.
At the habeas trial, Cruz stood by her trial testimony and denied telling Lebron that she had lied because the police had threatened to take her children away. She also denied having taken acid on the night of the shooting. Lebron testified at the habeas trial that after the criminal trial Cruz told him that she lied about seeing the shooting because the police had threatened to take her children away and had offered her a new residence if she testified as she did. He also testified that someone approached him at the time of the petitioner's criminal trial and told him that if he could get Cruz to testify against the petitioner his sentence would be reduced. In 1999, Lebron was convicted of manslaughter and sentenced to thirty years of imprisonment. He also has convictions for tampering with a witness, assault in the first and second degree and for selling narcotics. The court does not find his testimony to be credible.
As for Calderon, at the habeas trial, she testified that she had taken acid on the night of the shooting, that the police told her that she would go to jail if she did not admit to being at the scene of the crime and if she did not give them a statement, that the police coached her in giving her statement, that she did not know what really happened that night because she was high and that she read through her police statement prior to testifying at the criminal trial. She also testified that she was with Cruz on the night of the shooting and that she did not recall if Cruz took acid or had been drinking on that night. On cross examination at the habeas trial, she admitted to telling the respondent's investigators that she did not want to testify at the habeas trial, that she was afraid to testify and that members of the petitioner's family had attempted to get her to change her testimony. Shortly thereafter, she changed her testimony and stated that members of the petitioner's family had not approached her but that she saw them at "the club" and that they spoke to her but they did not tell her to change her testimony. Upon being questioned about what she testified to at the criminal trial regarding whether she had taken any drugs on the night of the shooting and whether the police had coerced her into giving an inaccurate statement, Calderon became belligerent and stated that because of her drug use her memory "is real messed up." She also repeatedly stated: "I don't feel like I should be here right now."
Trial Transcript of March 4, 2009, p. 38.
Habeas Trial Transcript of March 4, 2009, pp. 38-39.
The court does not find Calderon's testimony at the habeas trial to be credible. She testified that she read her police statement prior to testifying at the criminal trial and that she had no independent recollection of the shooting. The court does not find this believable as her testimony at the criminal trial and her police statement contained several inconsistencies. If she had read her police statement prior to testifying and had based her testimony solely on that statement one would expect that there would not be as many significant discrepancies between her testimony and her police statement as there were in the present case. Moreover, Calderon appeared to have been under the influence of drugs during her testimony at the habeas trial, which further diminishes the credibility of her testimony. This court also finds that it is more likely than not that Calderon was motivated to testify as she did at the habeas trial because of the pressure that she has been under by people on the street and the petitioner's family to change her story. This is bolstered by her testimony at the criminal trial in which she explained that she had initially told the police that she did not see anything when questioned on the night of the shooting because she was afraid that the petitioner and his friends would "come and get [her].
Respondent's Exh. G, pp. 94-134; Petitioner's Exh. 14.
Respondent's Exh. C, p. 136.
The petitioner's newly discovered evidence essentially consists of additional impeachment evidence of the trial testimony of Cruz and Calderon. His effort to show that he is actually innocent ultimately amounts to no more than a re-emphasis of the inconsistencies in the testimony of the eyewitnesses. The petitioner has not established by clear and convincing evidence, as adduced at the criminal and habeas trials, that he is innocent of the murder for which he was convicted nor has he established that no reasonable fact finder would find him guilty of the crime. Nicholas Cardwell effectively impeached the testimony of Cruz and Calderon on cross examination. The jury, nonetheless, found the petitioner guilty of murder and conspiracy to commit murder. Moreover, as noted by the Appellate Court, "[a]lthough no weapon was recovered, the police had significant circumstantial evidence to support the eyewitnesses' version of events." State v. Vazquez, supra, 79 Conn.App. 238.
Respondent's Exh. G, pp. 680-93; Respondent's Exh. H, pp. 116-34.
CONCLUSION
For all the foregoing reasons, judgment shall enter denying the petition for a writ of habeas corpus. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.
BY THE COURT,