Opinion
No. CV 05-4000665
November 13, 2007
Memorandum of Decision
The petitioner was convicted of robbery and being a serious felony offender and sentenced to ten years in prison. The Appellate Court affirmed the conviction. State v. Williams, 93 Conn.App. 844, 890 A.2d 630 (2006). The conviction arose from the robbery of a Hess gas station in New Haven. The robbery was captured on a surveillance videotape.
The petitioner's sole claim in this habeas corpus case is that trial counsel, assistant public defender Tashun Bowden-Lewis, rendered ineffective assistance by failing to object to testimony at the robbery trial by police officers identifying him as the person on the videotape. The petitioner claims that this testimony violated the rule codified in Connecticut Code of Evidence § 7-3(a) proscribing lay opinion on an ultimate issue of fact.
At the habeas trial, the petitioner withdrew his other claims of ineffective assistance of trial counsel, as well as all claims of ineffective assistance of appellate counsel.
Section 7-3(a) provides: "Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that, other than as provided in subsection (b), an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue."
At the criminal trial, Bowden-Lewis moved to exclude the tape on the ground that it was more prejudicial than probative and that the copy was not authentic. The court, Rodriguez, J., denied the motion. Bowden-Lewis also moved to exclude the police officer identification testimony insofar as it would characterize the petitioner as having a criminal history. The court granted the motion and approved the admission of a sanitized version of the testimony. There is no claim that Bowden-Lewis should have objected to the police officer testimony solely because it was a lay opinion. See Conn. Code Evi. § 7-1. The two police officers who testified had ample familiarity with the petitioner and thus there would have been little basis for such an objection. See State v. Watson, 50 Conn.App. 591, 600, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058 (1999). Thus, the only claim here is that Bowden-Lewis did not identify the additional ground of § 7-3(a) as a basis for exclusion of the police officer testimony.
Section 7-1 provides: "If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue."
After hearing the evidence at the habeas trial, the court concludes that the petitioner has proven neither deficient performance nor prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). With regard to the performance prong, "counsel 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). "The decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency." (Internal quotation marks omitted.) Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985). In the present case, trial counsel had ample reason to believe that an objection to the police officer identification testimony would not have been meritorious, and thus that there was no reason to object to the testimony.
The present case is distinguishable from State v. Finan, 275 Conn. 60, 881 A.2d 187 (2005), relied upon by the petitioner. In Finan, there was surveillance videotape of a robbery and, at trial, the only issue was the identity of the robbers. The Supreme Court reasoned that police officer testimony of their suspicions that the defendant was one of the persons on the videotape was "fundamental to the jury's conclusion that the defendant was one of the perpetrators of the robbery." Id., 68-69. As the Court stated: "There was no physical evidence linking the defendant to the robbery, and the credibility of the witnesses other than the police officers had been called into question." Id., 71.
In the present case, in contrast, identity was not the sole issue. The petitioner also contested whether there was evidence of the use of force necessary to raise larceny to a robbery. Furthermore, the police identification of the petitioner was not the only credible, or even the most important, evidence of identity, thus taking the identification out of the category of being lay opinion on the "ultimate issue." On the contrary, there was both circumstantial and direct evidence of the petitioner's involvement in the robbery, which involved two robbers and the theft of some money and two cases of Newport cigarettes. See State v. Williams, supra, 846-47. There was evidence at the criminal trial that, at about the time of the robbery, the petitioner had borrowed the car identified as the one used to transport the robbers from the gas station. When the petitioner returned the car shortly thereafter, the petitioner removed Newport cigarettes from the back seat. He gave the owner of the car two packs of Newport cigarettes. Police seized another pack from the petitioner's residence. All three packs had the tax stamp that corresponded to that of the cigarettes sold at the gas station. Thus, the petitioner was in possession of the fruits of the crime.
Of additional importance was the actual surveillance videotape and the state's introduction of a slow motion version of the tape as well as still pictures taken from the tape. Unlike the depiction of the defendant on the tape in Finan, which the court characterized as "`momentary and not particularly clear,'" State v. Finan, supra, 275 Conn. 70 (quoting State v. Finan, 82 Conn.App. 222, 229, 843 A.2d 630 (2004)), the slow motion version and still pictures in the present case show an unobscured, full frontal view of the suspect. From these images, the jury on its own could readily have identified the suspect as the petitioner. Thus, unlike the case in Finan, police officer testimony identifying the suspect in the videotape as the petitioner was not fundamental to the conviction.
Moreover, it is not readily apparent that the police officers in this case rendered an "opinion." In Finan, the police officers testified to their "suspicions" that the person in the videotape was the defendant. The Supreme Court accepted the characterization of this testimony as an opinion. State v. Finan, supra, 275 Conn. 63-64. In the present case, the officers were unequivocal. Under these same circumstances, the Appellate Court has held that Finan and the opinion rule does not apply, because "recognition of the defendant was not based on opinion, but fact." State v. Felder, 99 Conn.App. 18, 25, n. 7, 912 A.2d 1054, cert. denied, 281 Conn. 921, 918 A.2d 273 (2007).
Finally, even assuming that Finan is similar to the present case, at the time of trial in 2002, Bowden-Lewis could not reasonably have anticipated the 2005 Supreme Court Finan decision. Prior to that decision, a Connecticut appellate court had never held that police officer identification of a suspect on a videotape in a case in which identity was at issue constituted a prohibited lay opinion on an ultimate issue. Rather, the operative rule had been that lay witnesses could testify regarding the identity or similarity of persons. See State v. Finan, supra, 275 Conn. 69 (citing State v. Watson, 50 Conn.App. 591, 600, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058 (1999)); State v. Finan, supra, 82 Conn.App. 232-33. In general, the "failure to advance novel legal theories or arguments does not constitute ineffective performance . . . Nor is counsel required to change existing law to provide effective representation . . . Counsel instead performs effectively when [she] elects to maneuver within the existing law, declining to present untested legal theories." (Citations omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, supra, 275 Conn. 461-62. Under these circumstances, it was well within the realm of competence for Bowden-Lewis to have concluded that the police officer identification of the petitioner was not a lay opinion on the ultimate issue in the trial and, thus, that it was not necessary to object to the police testimony on that additional ground.
The 2004 Appellate Court decision in the case, which the Supreme Court reversed, found no error in the admission of the police officer testimony. State v. Finan, supra, 82 Conn.App. 222, 225-34.
It is also the petitioner's burden to show that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. Id., 458. The petitioner cannot do so. For the same reasons, discussed above, that trial counsel did not have to object to the testimony as a lay opinion on the ultimate issue, the trial court would not likely have sustained the objection. Further, even without the police officer identification testimony, the state's case was strong. The petitioner was in possession of the fruits of the crime. And the videotape, especially when slowed down and reduced to still pictures, spoke for itself. The petitioner has not convinced the court that the result of the trial would have been different even without the challenged evidence.
Accordingly, the petitioner has failed to prove his claim of ineffective assistance of counsel. The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.