Opinion
No. CV00-435067-S
June 22, 2006
MEMORANDUM OF DECISION ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS
The petitioner was the defendant in a criminal case in the judicial district of Fairfield. After a jury trial he was convicted of two counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), and thereafter the court found that he was a persistent dangerous felony offender.
On January 19, 1996 the trial court, (Maiocco, J.) sentenced the petitioner to a total effective sentence of thirty years incarceration. The convictions were affirmed on direct appeal. State v. Watson, 47 Conn.App. 794 (1998); 251 Conn. 220 (1990). The petitioner is presently in the custody of the respondent as a result of his sentence. The petitioner was represented at trial by Attorney William Schipul.
The petitioner, by counsel, filed a one-count amended petition on February 6, 2006, alleging ineffective assistance of trial counsel Schipul, and the respondent filed his return on February 15, 2006. The court conducted a trial on the petition on May 11, 2006. The witnesses were the petitioner and Mr. Schipul. The criminal trial transcript was the only exhibit.
The Appellate Court found that the jury reasonably could have found the following facts.
On the evening of December 17, 1994, Elaine Jackson and Christina Ramirez were employed at a sandwich shop in Bridgeport. At approximately 11 p.m., the defendant entered the store and asked for a soda. Ramirez waited on the defendant. He inquired about a telephone, and Ramirez indicated that there was one on the street corner. The defendant then displayed a gun and demanded money from Ramirez, who was standing next to the cash register. Ramirez called to Jackson, who observed the gun pointed at Ramirez. Both employees were behind a floor-to-ceiling partition that had an opening through which customers received their orders. The defendant kept the gun pointed at Ramirez and repeatedly demanded money. The defendant took the money that Ramirez removed from the cash register. He then pointed the gun at Jackson and demanded that she open the door leading to the rear of the store. Apparently unable to exit the store from the rear, he ordered the two employees to lie face down on the floor and to count to ten before moving. He left by the front door, and the employees then notified the police and the store supervisor.
The employees described the defendant as a Hispanic male, five feet, five inches tall, who spoke broken English, had a gauze bandage over one eye and was wearing a red and black flannel jacket. Ramirez selected the defendant's photograph from a photographic array of eight males as being that of the perpetrator. The defendant was thereafter arrested.
At trial, the defendant presented an alibi defense that on the evening of December 17, 1994, he was attending a Christmas party at a club in Stratford with his fiancèe, Lisa Cabral, who is now his wife. Cabral testified that she was with him from shortly before 9:30 p.m. until after 12:15 a.m. She testified that the defendant had no accent or injury to his face. Two other witnesses testified that the defendant was at the party and that he had no accent and no injury to or bandage on his eye.
State v. Watson, supra, 47 Conn.App. 796-97.
The petitioner claims that he was denied his right to effective assistance of trial counsel in violation of his sixth and fourteenth amendment rights under the United States Constitution, and article first section eight of the Connecticut Constitution. The only claims pursued at the habeas trial were that Mr. Schipul was ineffective in that he failed to withdraw as trial counsel when a conflict of interest developed during his examination of Lisa Cabral, the petitioner's alibi witness, which affected counsel's representation by interjecting his credibility into the case, and in that he failed to withdraw as counsel when the petitioner requested that he do so. A claim of a failure to call a material witness at the criminal trial was withdrawn at the habeas trial.
The petitioner is entitled to receive effective assistance of trial counsel. "A petitioner's right to the effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States Constitution, and by article first, § 8, of the Connecticut Constitution. The right to counsel is the right to the effective assistance of counsel . . . The right to counsel, however, is the right to effective assistance and not the right to perfect representation." (Internal quotation marks omitted.) Woods v. Commissioner of Correction, supra, 85 Conn.App. 549.
"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." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
To establish the first prong of the Strickland test, the petitioner must first establish that his attorney's performance was "not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . ." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 29 Conn.App. 162, 170, 614 A.2d 842 (1992), rev'd on other grounds, 229 Conn. 397, 641 A.2d 1356 (1994). The court must be mindful that "[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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 798-99.
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 fact finder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Woods v. Commissioner of Correction, supra, 85 Conn.App. 550. A court "hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury . . . [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." Strickland v. Washington, supra, 466 U.S. 695-96." Lewis v. Commissioner of Correction, 89 Conn.App. 850, 854-56.
The claim that Mr. Schipul was ineffective when he failed to withdraw as counsel because of a conflict of interest is based on certain testimony elicited from Lisa Cabral, one of three alibi witnesses, during redirect examination. On cross-examination the state had asked Ms. Cabral questions concerning her failure to contact either the police or the prosecutor, after the petitioner was arrested, and advise them of the alibi. On redirect examination Mr. Schipul inquired whether she had told anyone about the alibi and she testified that she had told him, defense counsel Schipul, about the alibi. The details of this evidence are discussed more fully by both the Supreme Court and the Appellate Court. See State v. Watson, 251 Conn., supra, 228-39, and State v. Watson, 47 Conn.App., supra, 807-08.
The plaintiff claims in his brief that "[T]hrough no fault of his own, Attorney Schipul was forced, by the court's admission of the evidence of the alibi witness's silence, into questioning Cabral about his advice, and arguing it to the jury." This claim was also made before the Appellate Court. It is clear from the record, as was pointed out by the Appellate Court in footnote 1 on page 805, that there was no testimony by Ms. Cabral that Mr. Schipul gave her any advice, and in addition, in closing argument defense counsel made no reference to any such advice.
That the jury heard evidence that Ms. Cabral did not tell the police or the prosecutor about the alibi, but that she did tell defense counsel, was not evidence of such significance that it required Mr. Schipul to withdraw as counsel. The court notes that Mr. Schipul, in his final argument to the jury, which took in excess of one hour, made a very brief reference to the evidence that Ms. Cabral told only defense counsel about the alibi, and the state in argument made no reference to it. The court also notes that when appellate counsel raised on appeal the same claim of conflict of interest and ineffective assistance of trial counsel based on trial counsel's final argument, the Appellate Court, while not ruling on a claim of ineffective assistance of trial counsel, did state, "Furthermore defense counsel's remarks to the jury do not appear to create a conflict of interest . . . Assuming arguendo, that a conflict did exist, we deem it to be harmless in view of the other witnesses who also testified as to the whereabouts of the defendant on the evening of December 17, 1994." State v. Watson, 47 Conn.App. 303. This court fully agrees with that comment.
The court finds that the petitioner has failed to prove that the testimony of Ms. Cabral, that she had previously told Mr. Schipul about the alibi, and the reference to that testimony by Mr. Schipul in final argument, created a situation where Mr. Schipul was deficient in not moving to withdraw as counsel. In addition the petitioner has failed to prove that, even if Mr. Schipul was deficient, which the court does not find, that that deficient conduct prejudiced the petitioner.
The petitioner also claims that when Ms. Cabral testified that she had told Mr. Schipul about the alibi that he, the petitioner, told Mr. Schipul that he did not wish Mr. Schipul to continue as his attorney because he had become a witness in the case. The petitioner also testified that Ms. Cabral had testified in the trial that Mr. Schipul had told her not to tell the state about the alibi. Mr. Schipul testified that at no time did the petitioner ask him to withdraw as counsel, that he did not tell Ms. Cabral not to tell the state about the alibi, and that she did not so testify.
Mr. Schipul is a Senior Assistant Public Defender with the Office of the Public Defender in Bridgeport. He has been with that office for approximately twenty-four years. He is a very experienced criminal defense attorney and the court finds him to be a credible witness.
The court does not accept the petitioner's testimony that, upon hearing Ms. Cabral's testimony, he realized that there might be a necessity for his attorney to testify, and the record clearly shows that Ms. Cabral did not give the testimony that the petitioner attributed to her. The court accepts Mr. Schipul's testimony and finds that the petitioner did not request that he withdraw as counsel.
For the foregoing reasons, the amended petition is dismissed.