Opinion
No. CV 01-0447749 S
June 2, 2003
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
Before the court is the habeas corpus petition of the petitioner Duane Ziemba. The petitioner claims ineffective assistance of trial counsel and appellate counsel as well as inconsistent verdicts on which his conviction was based.
The petitioner was the defendant in two criminal cases entitled State v. Duane Ziemba, Nos. CR 97-142185 and CR 97-141855, pending in the Superior Court for the Judicial District of Middlesex at Middletown. Both cases were consolidated for trial. Trial commenced on October 1, 1998 and on October 7, the petitioner was found not guilty of the charge of burglary in the third degree in violation of C.G.S. § 53a-103 (a), but was found guilty of the charges of criminal mischief in the second degree in violation of C.G.S. § 53a-116 (a) (1), and larceny in the first degree in violation of C.G.S. § 53a-122 (a) (3).
On November 18, 1998, the petitioner was sentenced by the court, Higgins, J., to a term of 12 years on the larceny charge and 1 year on the criminal mischief charge, both to run consecutively to each other for a total effective sentence of 13 years. The judgment of the trial court was affirmed per curiam by the Appellate Court on May 30, 2000.
Evidence before this court includes the complete trial transcript which includes 728 pages of trial testimony consisting of the testimony of 19 witnesses.
STANDARD OF REVIEW
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be utilized in evaluation of claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.
Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims: "The right of a defendant to effective assistance of counsel is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (1989). He must also show 'that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.' Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 59 A.2d 206 (1989)." Further, strategic or tactical choices or decisions of counsel are not subject to challenge. ( Strickland, supra.) The petitioner's claims must be evaluated in light of these standards.
DISCUSSION
As to Facts Leading to Petitioner's Arrest
On April 16, 1997, a burglary and larceny occurred involving unauthorized entry to and removal of a truck belonging to the City of Middletown's Park and Recreation Department which was parked in a garage at 319 Butternut Street in Middletown.
The evidence disclosed that forcible entry to said garage was obtained through a high window (broken) and several sneaker foot prints were left on top of shelving located immediately beneath the window. The footprints in question did not match the footwear worn by the petitioner, nor was there any other evidence of the petitioner's having been present within the garage.
The record reveals, however, that Officer Siena of the Middletown Police, Patrol Division, testified that on the morning of April 17, while on duty of the intersection of Spring and Pearl Streets, he "observed a vehicle proceeding towards me . . . A yellow pick-up truck," which he identified as the missing vehicle, and recognized the operator as the petitioner whom he had known "approximately thirteen, fourteen years." Siena followed the truck and saw it pull into a driveway at 582 High Street. The petitioner was found in a second-floor apartment belonging to Steven Hurwitz at this address with the truck parked in the rear yard.
Upon booking the petitioner at police headquarters, Officer Patrick Howard testified as follows:
Q. Did you ask him any specific questions with regard to the theft of that motor vehicle?
A. At one point I asked him (petitioner) for the keys to the truck.
Q. And do you recall when you asked him for the keys to the truck?
A. It was after he was read his rights and during the processing.
Q. And were those keys produced?
A. Yes, he took them out of his pocket.
Q. And were they identified as the keys belonging to the pick-up truck located at 582 High Street?
A. Yes, they were.
As to the Performance of Trial Counsel
The petitioner was represented by Special Public Defender Attorney Jeffrey J. Drewniany. An examination of the trial transcript reveals that Drewniany conducted a more than adequate cross-examination of all the state's witnesses, made appropriate objections and generally furnished a defense to the petitioner which provided the petitioner with the effective assistance of counsel in the face of strong evidence of the petitioner's guilt on the larceny and criminal mischief charges.
Petitioner is critical of Drewniany's failure to secure the testimony of Matthew Raymond, a State Trooper, to challenge the credibility of Officer Barone who testified that petitioner admitted his involvement in the larceny and criminal mischief charges of which he was convicted. Trooper Raymond did not testify at the habeas hearing nor was his affidavit submitted substantiating the petitioner's claim. Also, the petitioner is critical of Drewniany's failure "to contact witnesses that would have been helpful to petitioner's defense . . ." without identifying such witnesses, or offering the testimony of such witnesses in person or by affidavit. Therefore, there is no way of knowing and one could only speculate as to whether any such witness' testimony would or would not have been helpful to the petitioner. "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." State v. Talton, 197 Conn. 280, 297 (1985).
"The test that measures ineffective assistance of counsel required a defendant to make two showings, that trial counsel's performance was not reasonably competent or within the range of ordinary training and skill in the criminal law, and that trial counsel's lack of competence contributed to the defendant's conviction. State v. Tirado, 194 Conn. 89, 91-92, 478 A.2d 606 (1984). Thus far, the petitioner is zero for two.
The petitioner is critical as well, of trial counsel's "failure to investigate a claim that Steven Hurwitz, a state's witness and John Delaney were the ones who committed the offenses the petitioner stands convicted of." Once again, the petitioner has failed to produce any evidence to implicate these individuals other than the fact that the petitioner was found in the apartment of Steven Hurwitz with the truck at issue in the back yard of said apartment. The court is being asked to be critical of the investigatory ability of the Middletown Police Department on the basis of no more than conjecture and speculation. This, the court should not, and cannot do.
Petitioner attacks, as well, trial counsel on the basis of the "attorneys criminal trial experience being deficient." The court's review of the trial transcript failed to reveal a trial tactic or deficiency which would indicate inexperience or incompetency on the part of Attorney Drewniany. On the contrary the court concludes that, faced with a strong case presented by the state, that is the petitioner being seen operating the truck at issue, being followed to the location where the truck was found, being arrested at this location and thereafter surrendering the keys to said truck to the police, trial counsel made the most of a difficult situation in securing a not guilty finding on the burglary charge and the conviction in the larceny and criminal mischief charges were inevitable.
As to the Performance of Appellate Counsel
The Appellate Court decision in this case was per curiam and, therefore, sheds no light on the thinking of the court, although one should conclude that the court found nothing in the record worthy of discussion let alone reversal.
On appeal the petitioner was represented by Attorney Katerina M. Rohner of New Haven Legal Assistance, Inc. The petitioner claims that Attorney Rohner's performance on appeal fell below the standard of competence expected from attorneys experienced in representing defendants in criminal appeals in the following respects:
a. That she failed to challenge petitioner's larceny conviction of C.G.S. § 53a-122 (a) (3) which is larceny by the taking when the petitioner was acquitted of the Burglary 3rd charge.
(b) "Failed to challenge the jury instructions about larceny of the taking which would have required the jury to find that petitioner was the one who took the truck. The charge given by Judge Higgins was general and not specific to the alleged offense."
(c) "Failed to challenge the court's denial of a request for a new trial as the guilty verdict of larceny by the taking was against the weight of the evidence."
Connecticut General Statutes § 53 a-119 defines "larceny" and states: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person he wrongfully takes, obtains or withholds such property from an owner."
The petitioner was convicted of violating C.G.S. § 53a-122 (a) (3) which provides that: ". . . (a) A person is guilty of larceny in the first degree when he commits larceny as defined in § 53a-119, and . . . (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars . . ."
Connecticut General Statues § 53a-103 (a) defines "Burglary in the third degree" as "A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein."
It is clear that violations of each of the above statutes may occur and be due to conduct mutually exclusive, and that conviction of one while being acquitted of the other does not necessarily create a conflict. Therefore, appellate counsel's failure to challenge petitioner's request for a new trial on this ground is non-availing to the petitioner's cause.
With respect to petitioner's claim concerning Judge Higgins' charge being "general and not specific to the alleged offense," an examination of the charge belies such a characterization:
The final count is larceny in the first degree. In the third count of the information, the defendant is charged with the crime of larceny in the first degree . . . A person is guilty of larceny in the first degree when he commits a larceny as defined by § 53a-119 and the property consists of a motor vehicle, the value of which exceeds ten thousand dollars.
(T 81-85.)
The charge continues to furnish the jury with each of the elements that must be proven by the State beyond a reasonable doubt with reference to the "taken property" that is, the truck. The charge on larceny concludes: "If you find that the defendant is guilty of larceny, then you must consider if the motor vehicle was worth more than ten thousand dollars."
The court is forced to conclude that Judge Higgins' charge on larceny in the taking was complete, specific and correct on the law. Therefore, criticism of appellate counsel's failure to include a claim of error with respect to the larceny charge would have been unwarranted and unavailing.
Finally petitioner's last claim of error as to appellate counsel raises the issue of whether counsel's failure to challenge the court's denial of petitioner's request for a new trial on the grounds that the guilty verdict on the larceny count was against the weight of evidence, was prejudicial to the petitioner.
In considering the so-called "weight of the evidence" one should remember that the credibility of witnesses and the weight to be given to their testimony are matters left solely to the jury. The jury is the sole judge of what testimony is to be believed and what testimony is to be rejected. Thus, the jury has the right to believe all or only part of a witness' testimony or none of the testimony of a particular witness. Petitioner's trial transcript reveals that Officer Robert Siena, while directing traffic, observed the truck at issue being operated by the petitioner on Spring Street. He observed the truck turn left onto Pearl Street. The truck was within 10-15 feet of him when it passed him on Spring Street. Officer Siena was asked:
Q . . . could you observe an operator of the vehicle?
A. Yes, I did
Q. Who was the operator
A. The operator was Duane Ziemba
(T 79.)
Darrell Pierce, a resident at 586 High Street testified that he recognized the truck as a town truck in the backyard of the house next door and recognized the petitioner as the petitioner was exiting the vehicle. (T 110.) Officer Howard took the keys identified as the truck keys from the petitioner at his booking at police headquarters. (T 212.)
The evidence alluded to could, if believed by the jury, serve as a basis for the petitioner's conviction on the larceny by the taking charge. It would further constitute a conviction based upon the "better weight of the evidence."
CONCLUSION
The court's conclusions and decisions above require that the relief sought by the petitioner be denied. "Any other result would be an aberration unless one decides all the disinterested witnesses who testified were enlisted by the police to weave this web of guilt around the petitioner." Pittman v. Warden, Superior Court, New Haven, CV 99-043264 (DeMayo, J.), March 12, 2003.
The petition is denied and judgment may enter for the respondent.
Skolnick, J