Jones v. Commissioner of Correction ( 2016 )

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APPENDIX
WAYNE J. JONES, SR. v. COMMISSIONER
OF CORRECTION*
Superior Court, Judicial District of Tolland
File No. CV-12-4004724
Memorandum filed November 21, 2014
Proceedings
Memorandum of decision on petitioner’s petition for
writ of habeas corpus. Petition denied.
Dante R. Gallucci, for the petitioner.
Craig P. Nowak, senior assistant state’s attorney, for
the respondent.
Opinion
OLIVER, J. The petitioner, Wayne Jones, initiated this
petition for a writ of habeas corpus, claiming that his
prior habeas counsel provided him ineffective legal rep-
resentation during his previous habeas trial. He seeks
an order of this court vacating his conviction and
returning the matter to the criminal court for further
proceedings. The court finds the issues for the respon-
dent, the Commissioner of Correction, and denies the
petition.
I
PROCEDURAL HISTORY
The petitioner was convicted after trial of sexual
assault in the first degree in violation of General Stat-
utes § 53a-70 (a) (1); burglary in the first degree in
violation of General Statutes (Rev. to 2005) § 53a-101
(a) (2); and kidnapping in the first degree in violation
of General Statutes § 53a-92 (a) (2) (B). Attorney Barry
Butler represented the petitioner in the criminal matter.
On December 16, 2005, the trial court (Rodriguez, J.)
imposed a total effective sentence of thirty-five years
imprisonment, execution suspended after twenty-five
years to serve, followed by thirty-five years of pro-
bation.
The petitioner appealed from the judgment of convic-
tion, which was affirmed by the Appellate Court. State
v. Jones, 115 Conn. App. 581, 974 A.2d 72, cert. denied,
293 Conn. 916, 979 A.2d 492 (2009).
The petitioner filed his first habeas corpus petition,
Docket No. CV-07-4001687, in which he was represented
by Attorney Joseph Visone. On October 25, 2010, after
trial, the court (T. Santos, J.) denied the habeas petition.
A subsequent appeal of the habeas court’s decision was
dismissed by the Appellate Court on March 27, 2012.
See Jones v. Commissioner of Correction, 134 Conn.
App. 903, 38 A.3d 1253 (2012). This petition followed.
On April 11, 2012, the petitioner brought this petition.
In his one count amended petition dated April 30, 2014,
the petitioner asserts that his prior habeas counsel was
ineffective in failing to establish Attorney Butler’s defi-
cient performance in that Attorney Butler:
1. Failed to adequately discuss with the petitioner
the state’s evidence and to advise him on the applicable
law so as to allow him to make a knowing, intelligent
and voluntary decision to try his case before a jury;
2. Failed to adequately investigate the case, potential
witnesses and potential defenses to the state’s DNA
evidence;
3. Failed to seek an independent evaluation of the
DNA evidence obtained by the state, to determine
whether exculpatory evidence could be obtained;
4. Failed to prepare and present pretrial motions
directed to obtain and preserve potentially exculpatory
DNA evidence;
5. Failed to properly prepare and argue a motion to
suppress the state’s DNA evidence; and
6. Failed to adequately prepare for trial, including
cross-examination of witnesses, rebutting the state’s
DNA evidence and arguing third party culpability as to
the petitioner’s cousin.
The petitioner argues that these several claimed defi-
ciencies are of such magnitude as to render his repre-
sentation by Attorney Butler constitutionally deficient.
For the following reasons, the several claims fail, and
the court denies the petition.
The entirety of the petition surrounds the DNA evi-
dence presented to the court during the motion to sup-
press and to the jury during the underlying criminal
trial. Accordingly, the court’s focus will be on facts
found by this court relative to recovered DNA evidence.
On October 19, 2006, at a hearing on the petitioner’s
motion to suppress before the trial court (Rodriguez,
J.), Dr. Michael Bourke, lead criminalist at the Connecti-
cut State Forensic Science Laboratory, testified to the
proper procedures for the acceptance of potential DNA
evidence from an outside agency, as well as the proper
procedures for the preservation, testing, analysis and
comparison of DNA samples in his facility. The doctor
also testified to state and federal regulations and proto-
cols designed to maintain the integrity of both the
nationwide computerized DNA database, known as
‘‘CODIS’’ (Combining DNA Index) in general and the
State Laboratory in particular. Comparing the testimony
provided by Dr. Bourke to the subsequent trial testi-
mony of State Laboratory employees, this court finds
nothing in the evidence to suggest that there were any
improprieties in the processing and analysis of the DNA
evidence submitted to the State Laboratory in the peti-
tioner’s underlying criminal trial.
Karen Lamy, a criminalist at the Connecticut State
Forensic Science Laboratory’s forensic biology section,
testified at the petitioner’s criminal trial. Ms. Lamy testi-
fied to the submission of the sexual assault evidence
collection kit to the laboratory, her examination of vagi-
nal smears collected from the victim by medical person-
nel, and her identification of spermatozoa and red blood
cells on the smear. The evidence collected from the
smear was submitted by Ms. Lamy for DNA analysis.
Ms. Lamy later received buccal swabs from the peti-
tioner and the victim’s boyfriend that were submitted
for DNA analysis.
Christine Roy, a forensic science examiner for the
Connecticut State Forensic Science Laboratory, testi-
fied at the petitioner’s criminal trial. Ms. Roy examined
the results of the vaginal smear and buccal swabs sub-
mitted to her section by Ms. Lamy for the presence of
physiological fluids and DNA testing. Ms. Roy obtained
DNA profiles from the vaginal smear. Ms. Roy also
examined known DNA profiles of the petitioner and
the victim’s boyfriend from buccal swabs submitted by
law enforcement, as well as a known DNA profile of
the victim from the sexual assault evidence collection
kit. Ms. Lamy testified that after a DNA extraction pro-
cess and subsequent analysis, all of the petitioner’s DNA
profile was identified as being present in the DNA mix-
ture of spermatozoa obtained from the vaginal swab
contained in the sexual assault collection kit taken from
the victim of the sexual assault for which the petitioner
stood trial. Ms. Lamy further testified that the expected
frequency of individuals who could be a contributor to
the DNA profile from the sperm-rich fraction of the
vaginal smear is approximately one in six hundred fifty
thousand in the African-American population. The affi-
davit in support of the search and seizure warrant that
authorized the taking of a buccal swab DNA sample
from the petitioner identifies him as ‘‘Black.’’
Ms. Lamy further testified that Dwayne White, the
petitioner’s cousin, was eliminated as a contributor to
the DNA profile of spermatozoa taken from the vaginal
smear contained in the sexual assault collection kit
obtained from the victim after the sexual assault for
which the petitioner stood trial.
At the petitioner’s trial on his previous habeas peti-
tion, much the same evidence was presented to the
trial court. Attorney Visone’s examination of the several
witnesses called was thorough and well within the range
of competent representation.
During the instant habeas trial, the petitioner submit-
ted a number of exhibits as well the testimony of himself
and criminal trial counsel. The petitioner and respon-
dent submitted into evidence portions of the trial tran-
script from the underlying criminal trial and motion to
suppress. The respondent also submitted into evidence
the 2010 habeas trial transcript and memorandum of
decision.
Attorney Butler testified to his representation of the
petitioner at the underlying criminal trial in 2006. He
further testified to his experience as a criminal defense
attorney for the past twenty-eight years, including as a
trial attorney in private practice, a part A public
defender, and a public defender in the office’s Capital
Defense and Trial Services Unit (hereinafter capital
unit). Attorney Butler testified to extensive experience
in the trial of serious felony offenses, including sexual
assault and murder. Prior to representing the petitioner
in the underlying trial, Attorney Butler represented
approximately forty other clients accused of similar
crimes. During the course of his experience as a crimi-
nal defense attorney, Attorney Butler became very
familiar with the use of DNA evidence in criminal prose-
cutions, including its collection, preservation and analy-
sis. In addition to formal training, Attorney Butler, using
the resources of the capital unit, availed himself of the
increased access to experts and emerging technologies
in the area of DNA forensics.
Regarding his representation of the petitioner, Attor-
ney Butler testified credibly that he familiarized himself
with the entirety of the state’s case against the peti-
tioner, including the potential introduction of DNA evi-
dence implicating his client. He testified to meeting
several times with the petitioner during the course of
the prosecution, reviewing the allegations and the antic-
ipated evidence to be introduced against him at trial,
including DNA evidence. The court finds, based on his
testimony, that Attorney Butler took great pains to
make the petitioner aware of the strength of the state’s
evidence against him, especially as it related to any
potential defense strategies. The court finds that,
despite compelling evidence identifying the petitioner
as a contributor to DNA contained within a sample of
biological material collected in relation to the sexual
assault, the petitioner insisted on a defense strategy of
mistaken identity, i.e., that the victim misidentified the
petitioner as the perpetrator of the sexual assault.
The court further credits Attorney Butler’s testimony
of his extensive preparation for the trial of the underly-
ing criminal matter, including the filing and litigation
of a motion to suppress the results of a DNA sample
taken from the petitioner based on a lack of probable
cause to seize the buccal sample, the pretrial investiga-
tion and interview of the state’s expert witness, and
the exploration of third party culpability as a potential
defense. As testified to at the habeas trial, a third party
culpability defense directed to the petitioner’s cousin
would have been unavailing, as the cousin was excluded
as a contributor of DNA to the sample of biological
material connected to the sexual assault.
Attorney Butler testified to his strategic reasoning
in not seeking an independent evaluation of the DNA
analysis performed by the employees at the State Police
Forensic Science Laboratory. Based on his training and
specific experience and familiarity with the state’s
potential trial witnesses, a decision was made to inter-
view and cross-examine these witnesses at trial, rather
than to create additional evidence potentially damaging
to the defense by hiring an outside consultant. There
is no evidence to support a contention that an outside
DNA evaluation would have successfully challenged the
conclusions of the state’s expert witnesses. The trial
record makes clear that the petitioner, through Attorney
Butler, did indeed mount a defense, though unsuccess-
ful, to contest the inculpatory effect of the state’s
DNA evidence.
The petitioner testified that the sole basis of the cur-
rent petition is his belief that Attorney Visone’s repre-
sentation was ineffective in that he failed to establish
the several claimed deficiencies in Attorney Butler’s
representation only as it relates to issues surrounding
DNA evidence at the criminal trial. Contrary to the
assertions in the petition, the petitioner testified on
redirect examination that, after meeting with Attorney
Visone, he was in agreement with the claims presented
in the amended petition filed by counsel in the prior
habeas matter.
The petitioner’s testimony at the habeas trial was
loose, equivocal, contradictory and unconvincing. He
testified alternatively that he never discussed the state’s
potential DNA evidence with Attorney Butler, but that
he was made aware ‘‘through [his] attorneys’’ that the
state intended to offer DNA evidence against him at
trial. He further testified that he ‘‘only saw [his attorney]
once’’ prior to trial, that Attorney Butler ‘‘never came
to see [him] in jail,’’ and that he met with Attorney
Butler three to four times. It is clear from the petitioner’s
testimony that Attorney Butler did indeed discuss with
him at prison visits the nature and elements of the
offenses against him, the anticipated evidence to be
presented, including DNA, potential defenses to the
charges, the motion to suppress, and whether the peti-
tioner would decide to take the case to trial. It is also
clear that the petitioner did not like what he was hearing
when he ‘‘ended the conversation and . . . left.’’ The
petitioner testified that he unequivocally told Attorney
Butler that he wanted a trial and wanted his defense
strategy to be that of mistaken identity, as he ‘‘told
[Attorney Butler], I didn’t do this,’’ and that he was ‘‘not
at the crime scene.’’ It is evident from the entire record
that the petitioner refuses to accept, despite the best
efforts of counsel, the scientific conclusion that being
identified as a contributor of DNA to a biological sample
collected at a sexual assault crime scene, even in a
mixture with other contributors as in the underlying
criminal matter, is compelling evidence of identity and
of being present at the crime scene.
II
DISCUSSION
‘‘A criminal defendant’s right to the effective assis-
tance of counsel . . . is guaranteed by the sixth and
fourteenth amendments to the United States constitu-
tion and by article first, § 8, of the Connecticut constitu-
tion. . . . To succeed on a claim of ineffective
assistance of counsel, a habeas petitioner must satisfy
the two-pronged test articulated in Strickland v. Wash-
ington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).’’ (Citations omitted.) Small v. Commissioner of
Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.
Ct. 481, 172 L. Ed. 2d 336 (2008). The petitioner has the
burden to establish that ‘‘(1) counsel’s representation
fell below an objective standard of reasonableness, and
(2) counsel’s deficient performance prejudiced the
defense because there was a reasonable probability
that the outcome of the proceedings would have been
different had it not been for the deficient performance.’’
(Emphasis in original.) Johnson v. Commissioner of
Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008),
citing Strickland v. Washington, supra, 694.
‘‘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.’’ (Internal quotation
marks omitted.) Ledbetter v. Commissioner of Correc-
tion, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert.
denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126
S. Ct. 1368, 164 L. Ed. 2d 77 (2006), quoting Strickland
v. Washington, supra, 466 U.S. 687. It is not enough for
the petitioner to simply prove the underlying facts that
his attorney failed to take a certain action. Rather, the
petitioner must prove, by a preponderance of the evi-
dence, that his counsel’s acts or omissions were so
serious that counsel was not functioning as the ‘‘coun-
sel’’ guaranteed by the sixth amendment, and as a result,
he was deprived of a fair trial. Harris v. Commissioner
of Correction, 107 Conn. App. 833, 845–46, 947 A.2d 7,
cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
Under the second prong of the test, the prejudice
prong, the petitioner must show that ‘‘counsel’s errors
were so serious as to deprive the [petitioner] of a fair
trial, a trial whose result is reliable.’’ (Internal quotation
marks omitted.) Michael T. v. Commissioner of Correc-
tion, 307 Conn. 84, 101, 52 A.3d 655 (2012).
When assessing trial counsel’s performance, the
habeas court is required to ‘‘indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance . . . .’’ Strick-
land v. Washington, supra, 466 U.S. 689. The United
States Supreme Court explained:
‘‘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 evalu-
ation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the defendant must
overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy. . . . There are countless ways to
provide effective assistance in any given case. Even the
best criminal defense attorneys would not defend a
particular client in the same way.’’ (Citation omitted;
internal quotation marks omitted.) Id.
Ultimately, ‘‘[t]he benchmark for judging any claim
of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result.’’ Id., 686.
III
ATTORNEY BUTLER
A
Pretrial Investigation
The petitioner claims that the pretrial investigation
by his attorney was deficient in that he failed to properly
investigate, evaluate and challenge the state’s proffered
DNA evidence. Had counsel done so, the petitioner
claims, he would have discovered exculpatory DNA
evidence showing that it was a third party, perhaps
even the petitioner’s cousin, who committed the sexual
assault. As previously stated in this decision, based on
this court’s review of the relevant portions of both the
criminal and habeas trial transcripts, all available evi-
dence contradicts the possibility of third party culpabil-
ity. The court finds that the petitioner has failed to
prove this claim.
‘‘The reasonableness of an investigation must be eval-
uated not through hindsight but from the perspective
of the attorney when he was conducting it. . . . The
burden to demonstrate what benefit additional investi-
gation would have revealed is on the petitioner.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Norton v. Commissioner of Correction, 132 Conn. App.
850, 858–59, 33 A.3d 819, cert. denied, 303 Conn. 936,
36 A.3d 695 (2012).
B
Evidence and Examination of Witnesses
The petitioner next claims that his trial attorney per-
formed deficiently during the course of the trial by
failing to adequately cross-examine witnesses from the
State Laboratory and present evidence in the petition-
er’s defense. ‘‘An attorney’s line of questioning on exam-
ination of a witness clearly is tactical in nature. [As
such, this] court will not, in hindsight, second-guess
counsel’s trial strategy.’’ (Internal quotation marks
omitted.) Velasco v. Commissioner of Correction, 119
Conn. App. 164, 172, 987 A.2d 1031, cert. denied, 297
Conn. 901, 994 A.2d 1289 (2010). Similarly, ‘‘the presen-
tation of testimonial evidence is a matter of trial strategy
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Bowens v. Commissioner of Correction, 104
Conn. App. 738, 744, 936 A.2d 653 (2007), cert. denied,
286 Conn. 905, 944 A.2d 978 (2008).
‘‘[C]ross-examination is a sharp two-edged sword and
more criminal cases are won by not cross-examining
adverse witnesses, or by a very selective and limited
cross-examination of such witnesses, than are ever won
by demolishing a witness on cross-examination.’’ (Inter-
nal quotation marks omitted.) State v. Clark, 170 Conn.
273, 287–88, 365 A.2d 1167, cert. denied, 425 U.S. 962,
96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976). ‘‘The fact that
counsel arguably could have inquired more deeply into
certain areas, or failed to inquire at all into areas of
claimed importance, falls short of establishing deficient
performance.’’ Velasco v. Commissioner of Correction,
supra, 119 Conn. App. 172.
Based on the whole record, the court finds that as
to both the motion to suppress and the criminal trial,
Attorney Butler did properly investigate and pursue all
reasonable avenues in an effort to challenge the integ-
rity of the state’s evidence implicating the petitioner in
the underlying sexual assault. There is no evidence of
the existence of any DNA evidence that would have
been exculpatory of the petitioner in the commission
of the crimes of which he was convicted.
Additionally, based on a review of the transcript of
the motion to suppress, this court is not persuaded of
the probability that an examination of Dr. Bourke on
law enforcement forensic evidence collection methods
before the jury would have yielded a different verdict.
There is not sufficient evidence in the record to suggest
that there existed any testimony available from any
known witness, including Dr. Bourke, that would have
been helpful in establishing the petitioner’s asserted
defense. See Nieves v. Commissioner of Correction, 51
Conn. App. 615, 624, 724 A.2d 508, cert. denied, 248
Conn. 905, 731 A.2d 309 (1999).
IV
ATTORNEY VISONE
The petitioner alleged that his habeas counsel in a
prior proceeding was ineffective for failing to raise a
claim of ineffective assistance of trial counsel on the
ground that trial counsel failed to sufficiently challenge
the state’s expected DNA evidence.
For assessing claims of ineffective assistance based
on the performance of prior habeas counsel, the Strick-
land standard is as follows: ‘‘[When] applied to a claim
of ineffective assistance of prior habeas counsel, the
Strickland standard requires the petitioner to demon-
strate that his prior habeas counsel’s performance was
ineffective and that this ineffectiveness prejudiced the
petitioner’s prior habeas proceeding. . . . [T]he peti-
tioner will have to prove that . . . prior habeas coun-
sel, in presenting his claims, was ineffective and that
effective representation by habeas counsel establishes
a reasonable probability that the habeas court would
have found that he was entitled to reversal of the convic-
tion and a new trial . . . . Therefore, as explained by
our Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992), a petitioner claiming ineffective
assistance of habeas counsel on the basis of ineffective
assistance of [appellate] counsel must essentially sat-
isfy Strickland twice: he must prove both (1) that his
appointed habeas counsel was ineffective, and (2) that
his trial counsel was ineffective.’’ (Citations omitted;
internal quotation marks omitted.) Lapointe v. Com-
missioner of Correction, 113 Conn. App. 378, 394, 966
A.2d 780 (2009).
Therefore, in order to set forth a prima facie case of
ineffective assistance of habeas counsel on the ground
of ineffective assistance of trial counsel, the petitioner
must set forth a prima facie case of ineffective assis-
tance of trial counsel. In the instant matter, because
the petitioner failed to set forth a prima facie case
regarding the ineffective assistance of his trial counsel,
he has not set forth a prima facie case of ineffective
assistance of his habeas counsel. Additionally, a full
review of the habeas trial transcript as well as the
habeas trial court’s memorandum of decision reveals
no deficiencies in Attorney Visone’s representation at
the trial on the previous habeas corpus petition.
V
CONCLUSION
For all of the foregoing reasons, the petition is denied.
Judgment shall enter for the respondent.
* Affirmed. Jones v. Commissioner of Correction, 169 Conn. App. 405,
A.3d (2016).