Edwards v. Commissioner of Correction ( 2018 )

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MARCELLO EDWARDS v. COMMISSIONER
OF CORRECTION
(AC 39632)
Sheldon, Bright and Bear, Js.
Syllabus
The petitioner, who had been convicted of assault in the first degree and
of violation of probation in connection with the stabbing of the victim,
sought a writ of habeas corpus, claiming that his trial counsel had
rendered ineffective assistance. The petitioner claimed, inter alia, that
because his counsel failed to subject the state’s case to any meaningful
adversarial testing, the habeas court should have presumed, pursuant
to United States v. Cronic (466 U.S. 648), that the petitioner was preju-
diced and, thus, granted his habeas petition. The petitioner’s trial counsel
had declined to cross-examine the victim, who had initially told the
police that she did not know who had assaulted her, and declined to
cross-examine the victim’s children, who were present at the time of
the assault. Counsel also failed to meaningfully cross-examine any of
the state’s witnesses and did not investigate the petitioner’s alibi claim
or introduce any alibi evidence, despite having reviewed certain witness
statements that supported the alibi, and counsel did not interview any
of the petitioner’s witnesses, all of whom were available at the time of
trial. The habeas court determined that counsel’s decision not to cross-
examine the state’s witnesses was a strategic decision, as to which he
could not have been found to have rendered deficient performance, and
that the petitioner failed to point out how cross-examination would have
benefited the defense. The court further concluded that the petitioner
failed to prove that the outcome of the criminal trial would have been
different if his counsel had investigated the alibi and interviewed the
alibi witnesses. The habeas court rendered judgment denying the habeas
petition, from which the petitioner, on the granting of certification,
appealed to this court. Held that the habeas court improperly denied
the petition for a writ of habeas corpus; that court should have presumed,
pursuant to Cronic, that the petitioner was prejudiced as a result of
his trial counsel’s failure to subject the state’s case to any meaningful
adversarial testing, as it was clear that counsel had determined that the
petitioner was the perpetrator and would be convicted, and counsel’s
utter lack of advocacy on the petitioner’s behalf in declining to cross-
examine the victim and her children, and in failing to investigate his
alibi, could not reasonably be construed as strategic, which was apparent
from counsel’s opinion that the evidence against the petitioner was
overwhelming and that the petitioner’s case was one in which there
was no defense.
Argued April 19—officially released July 31, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; thereafter, the
petition was withdrawn in part; judgment denying the
petition; subsequently, the court granted the petition
for certification to appeal, and the petitioner appealed
to this court. Reversed; judgment directed; further pro-
ceedings.
Pamela S. Nagy, assistant public defender, for the
appellant (petitioner).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Angela R. Macchiarulo, senior
assistant state’s attorney, for the appellee (respondent).
Opinion
SHELDON, J. The petitioner, Marcello Edwards,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus claiming ineffec-
tive assistance of counsel during his criminal trial,
which resulted in his conviction of assault in the first
degree in violation of General Statutes § 53a-59 (a) (1)
and the revocation of his probation as a result of his
violation of General Statutes § 53a-32. On appeal, the
petitioner claims that because his trial counsel, Raul
Davila, failed to subject the state’s case against him to
any meaningful adversarial testing, his claim is con-
trolled by United States v. Cronic, 466 U.S. 648, 104 S.
Ct. 2039, 80 L. Ed. 2d 657 (1984), and prejudice should
be presumed.1 On that basis, he claims that the habeas
court should have granted his petition for a writ of
habeas corpus, set aside his conviction and the revoca-
tion of his probation, and remanded his case for a new
trial. We agree, and therefore reverse the judgment of
the habeas court.2
On December 11, 2012, the petitioner was convicted
of assault in the first degree in violation of § 53a-59 (a)
(1). On December 12, 2012, he was found in violation
of his probation. In affirming the petitioner’s conviction
and the revocation of his probation, this court set forth
the following relevant factual and procedural history.
‘‘The victim3 . . . met the [petitioner] when she was
fifteen and he was twenty or twenty-one years old.
They began dating at that time and eventually had two
children together, [J] and [S]. The [petitioner] physically
abused the victim during their relationship. On one
occasion, the [petitioner] attacked the victim while she
was at work, forcing her to lock herself in the office
of a coworker to escape physical harm. On another
occasion, when the [petitioner] and the victim argued,
he punched her in the head, splitting her lip and ruptur-
ing her eardrum. In August, 2009, the relationship
ended, and the [petitioner] moved out of the victim’s
home.
‘‘On November 16, 2011, the [petitioner] took [S] to
McDonald’s after school and later brought her back
to his mother’s house, where he then lived. Shortly
thereafter, the victim arrived to pick up [S] and take
her home. Upon returning home, the victim called [J],
who was home alone, and asked him to unlock the door
to let them in the house. As the victim approached
the house, however, the [petitioner] accosted her and
stabbed her repeatedly in the head, chest, arm, and
thigh. When the victim cried out for help, the [petitioner]
fled. [J] ran to the entry of the house, where he saw
the victim, lying on the ground, bleeding. He dragged
his mother into the house and called 911. After the
victim was taken to a hospital, [J] texted the [petitioner],
‘You’re not gonna get away with it. You’re going to jail.’
The [petitioner] responded by text, ‘Fuck you.’
‘‘Thereafter, the [petitioner] was arrested and
charged with assault in the first degree and violation
of probation. The [petitioner] pleaded not guilty to both
charges and elected a jury trial on the assault charge.’’
(Footnote added.) State v. Edwards, 158 Conn. App.
119, 121–22, 118 A.3d 615, cert. denied, 318 Conn. 906,
122 A.3d 634 (2015).
‘‘On the charge of assault in the first degree, the court
sentenced the [petitioner] to a term of twenty years of
incarceration, of which five years was a mandatory
minimum sentence that could not be suspended or
reduced. On the charge of violation of probation, the
court sentenced the [petitioner] to a term of thirty-
seven months incarceration, to be served consecutively
to his sentence for first degree assault.’’ Id., 130–31.
On August 9, 2013, the petitioner filed his petition
for a writ of habeas corpus in this matter. At his trial
before the habeas court, the petitioner made three spe-
cific claims as to ways in which Davila was ineffective,
namely, that Davila failed to request an additional com-
petency evaluation; that Davila failed to cross-examine
the state’s witnesses; and that Davila failed to investi-
gate his claimed alibi.
By way of memorandum of decision filed July 13,
2016, the habeas court rejected the petitioner’s claims of
ineffective assistance, and thus denied the petitioner’s
petition for a writ of habeas corpus. The habeas court
determined that the petitioner failed to prove that an
additional competency evaluation ‘‘would have yielded
a result favorable to the petitioner,’’ and thus that the
petitioner failed to prove that he was prejudiced by
Davila’s alleged failure to seek an additional compe-
tency evaluation. The court determined that Davila’s
decision not to cross-examine the state’s witnesses was
a strategic decision as to which he could not have been
found to be deficient. The court further found that the
petitioner failed ‘‘to point out a line of inquiry on cross-
examination of these witnesses that would have been
beneficial to the defense . . . .’’ Finally, the court
found the petitioner’s claimed alibi ‘‘unavailing,’’ and
that the petitioner failed to prove that if Davila had
further investigated the petitioner’s alibi and inter-
viewed his alibi witnesses himself, the outcome of the
criminal trial would have been different. The court
thereafter granted the petitioner’s petition for certifica-
tion to appeal, and this appeal followed.
On appeal, the petitioner claims that Davila’s repre-
sentation of him was so ineffective that he failed to
subject the state’s case against him to any meaningful
adversarial testing, and thus that prejudice should be
presumed under Cronic.4 On that basis, the petitioner
argues that his petition for a writ of habeas corpus
should have been granted. We agree.
‘‘The issue of whether the representation that a [peti-
tioner] received at trial was constitutionally inadequate
is a mixed question of law and fact. . . . As such, the
question requires plenary review unfettered by the
clearly erroneous standard. . . .
‘‘The sixth amendment provides that in all criminal
prosecutions, the accused shall enjoy the right to the
effective assistance of counsel. . . . This right is incor-
porated to the states through the due process clause
of the fourteenth amendment. . . . Strickland [v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)] and Cronic set forth the framework for
analyzing ineffective assistance of counsel claims.
Under the two-pronged Strickland test, a [petitioner]
can only prevail on an ineffective assistance of counsel
claim if he proves that (1) counsel’s performance was
deficient, and (2) the deficient performance resulted in
actual prejudice. . . . To demonstrate deficient perfor-
mance, a [petitioner] must show that counsel’s conduct
fell below an objective standard of reasonableness for
competent attorneys. . . . To demonstrate actual prej-
udice, a [petitioner] must show a reasonable probability
that the outcome of the proceeding would have been
different but for counsel’s errors. . . .
‘‘Strickland recognized, however, that [i]n certain
[s]ixth [a]mendment contexts, prejudice is presumed.
. . . In . . . Cronic . . . which was decided on the
same day as Strickland, the United States Supreme
Court elaborated on the following three scenarios in
which prejudice may be presumed: (1) when counsel
is denied to a [petitioner] at a critical stage of the pro-
ceeding; (2) when counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing;
and (3) when counsel is called upon to render assistance
in a situation in which no competent attorney could
do so.’’ (Citations omitted; internal quotation marks
omitted.) Davis v. Commissioner of Correction, 319
Conn. 548, 554–55, 126 A.3d 538 (2015). ‘‘This is an
irrebuttable presumption. See State v. Frye, 224 Conn.
253, 262, 617 A.2d 1382 (1992) (right to counsel is so
basic that its violation mandates reversal even if no
particular prejudice is shown and even if there is over-
whelming evidence of guilt) . . . .’’ (Internal quotation
marks omitted.) Newland v. Commissioner of Correc-
tion, 322 Conn. 664, 699–700, 142 A.3d 1095 (2016).
To assess the petitioner’s claim that Davila failed
to subject the state’s case against him to meaningful
adversarial testing, and thus that Davila’s representa-
tion of him requires reversal under Cronic, we begin
by reviewing the record of the petitioner’s criminal trial.
Prior to the petitioner’s trial, the court held two hearings
to determine the petitioner’s competence to stand trial.
At the first hearing, the court found that the petitioner
was not competent, but that his competency could be
restored. The court thus ordered that the petitioner
be committed for treatment at the Whiting Forensic
Division of Connecticut Valley Hospital for a period of
sixty days. At the conclusion of that commitment, a
second competency hearing was held, at which the
court, on the unanimous recommendation of the foren-
sic team that had treated the petitioner, found that he
had been restored to competency, and thus that he
could stand trial. Davila attended both hearings but did
not cross-examine any witnesses at either hearing.
During voir dire, the petitioner was removed from
the courtroom due to his disruptive behavior.5 The peti-
tioner continued that behavior and was therefore absent
from the courtroom for the majority of his trial. On the
first day of trial, the state called the victim to the witness
stand. The victim testified regarding her abusive past
with the petitioner, the assault that she suffered on
November 16, 2011, and her identification of the peti-
tioner as the individual who had assaulted her. Davila
did not cross-examine her.
The state then called S to the witness stand. S testified
that she saw her father leave her grandmother’s house
about five or ten minutes before her mother picked
her up on the day of the assault. Davila did not cross-
examine her.
The state then called J to the witness stand. J
described the events of November 11, 2016, from his
perspective. He had been home when his mother called
to ask him to unlock the door so that she and his sister
could come in after returning from a supermarket. After
S entered, he went to the kitchen with her, and then
he heard his mother crying out for help. He ran back
to the back door, where he ‘‘saw [his mother] on the
floor and . . . a person with a black coat running
away.’’ He testified that he could ‘‘[n]ot really’’ see the
perpetrator’s face and thus did not recognize him at
first. He observed the individual running away, and the
back of the perpetrator’s body ‘‘remind[ed]’’ him of his
father, the petitioner. He picked up his mother off the
ground and dragged her into the house, and called the
police. After his mother was taken to a hospital, he sent
a text message to the petitioner, telling him that he was
not going to get away with assaulting his mother, to
which the petitioner replied, ‘‘ ‘[f]uck you.’ ’’ J later
showed those text messages to the police. Davila did
not cross-examine him.
The state then called Detective Luis Poma to the
witness stand. He testified as to the investigation of the
assault of the victim, ultimately leading to his arrest of
the petitioner. He testified that, upon arriving at the
crime scene, he spoke with the officers who were
already there, and learned that the petitioner was a
potential suspect. He stated that the victim’s house was
approximately one mile away from the petitioner’s
mother’s house, and that it took him approximately five
minutes to drive that mile. Poma was unable to speak
to the petitioner when he arrived at the petitioner’s
mother’s house. He then proceeded to Saint Francis
Hospital and Medical Center in Hartford to check on
the condition of and to speak to the victim. Due to her
medical condition, he was unable to speak to the victim
on that day. He did, however, speak to J regarding
the text messages between J and the petitioner. Poma
telephoned the petitioner and had a brief conversation
with him during which the petitioner referred to the
victim as ‘‘a bitch.’’ Poma was able to speak to the
victim on November 21, 2011, at which time he showed
her a photographic array, from which she identified the
petitioner as her assailant. Davila cross-examined Poma
only as to the difference between ‘‘on-site arrests’’ and
arrests by warrant. Davila did not ask Poma any ques-
tions about his investigation of the assault of the victim
or the arrest of the petitioner.
The state then called Dr. Scheuster Christie to the
witness stand. Christie testified regarding his treatment
of the victim on the night of the assault. Davila did not
cross-examine him.
The state then called Officer Valentine Olabisi to the
witness stand. Olabisi testified that he had responded
to the scene of the assault and then proceeded to the
home of the petitioner’s mother and spoke to the peti-
tioner. Olabisi asked the petitioner where he had been
between the hours of 3 p.m. and 6 p.m. on the day of
the assault. The petitioner told him that ‘‘he had been
home all day with his mother, and just started to become
very angry and uncooperative at that time.’’ Olabisi also
testified that it had taken him less than five minutes to
drive from the victim’s house to the petitioner’s moth-
er’s house. Davila did not cross-examine him.
After the state rested, Davila addressed the court: ‘‘I
make a motion, Your Honor, that the state hasn’t proved
its case beyond a reasonable doubt as it presented—
presents its evidence for the case to go to the jury, so I’d
ask the court for a directed verdict.’’ The court denied
Davila’s motion with no further argument or elaboration
from Davila.
Davila presented no witnesses or evidence on behalf
of the petitioner.
By way of closing argument, Davila argued to the
jury that the state had presented no evidence of what
‘‘triggered’’ the assault of the victim, and asked the jury
to ‘‘focus on . . . the fact that [S], [J] and [the victim]
. . . all disliked [the petitioner]. And that was clear
from the testimony.’’ He told the jury that all three of
them ‘‘had a motive and had a bias to testify against
[the petitioner].’’
At the habeas trial, Davila testified that, in prepara-
tion for the petitioner’s criminal trial, he read the file
provided to him by the petitioner’s prior attorney, Aaron
J. Romano, which included reports from an investigator
hired by Romano. Davila stated that after reading
Romano’s file, he developed a theory of the case,
namely, that the petitioner was not the individual who
had assaulted the victim. When asked how he supported
that theory to the jury, Davila explained that the peti-
tioner had been removed from the courtroom, and, con-
sequently, Davila had ‘‘nobody next to [him] to sort of
help me trying to defend [the petitioner].’’ Davila testi-
fied at the habeas trial that it was difficult to defend
the petitioner because he had stabbed the victim
‘‘upward of thirty-four times in front of her two children
. . . .’’ Davila stated that the evidence against the peti-
tioner was overwhelming, and that ‘‘[t]here are cases
where you have no defense’’ and that he ‘‘argued as
best as [he] could during [his] closing [argument] that
[the petitioner] did not commit this crime.’’ He agreed
with counsel for the respondent, the Commissioner of
Correction, that ‘‘given the uncooperative nature [of the
petitioner] at that point and the overwhelming evidence
against him, [that his] best bet was to argue for mitiga-
tion at sentencing.’’6
As to the petitioner’s specific claim that Davila should
have cross-examined the state’s witnesses, he explained
that he did not cross-examine the victim or her children
because he had the statements that they had given to
the police and it is a ‘‘cardinal [rule] of cross-examina-
tion [that] you don’t ask a question unless you know
what the answer’s going to be . . . .’’ Davila then testi-
fied that he did not want to garner more sympathy for
the victim by cross-examining her or the children and
that he could not do so anyway because the petitioner
was not at the counsel table with him. Davila acknowl-
edged that the police report indicated that the victim
initially had told the police that she did not see who
stabbed her, and that even though this could have been
used for cross-examination, he did not do so. He stated
that part of his strategy in not cross-examining the
victim or her children was to avoid repeated identifica-
tions by them of the petitioner as the individual who
had stabbed the victim. Davila testified that ‘‘if there
was any basis for cross-examination that would actually
elicit any testimony that in my opinion would have
furthered [the petitioner’s] defense and best interest
. . . I certainly would have cross-examined the wit-
nesses.’’
As to the petitioner’s claim that Davila failed to inves-
tigate his alibi, Davila acknowledged that he did not
interview any witnesses or hire an investigator. Davila
testified that he would have interviewed the petitioner’s
alibi witnesses if he ‘‘thought that there was any merit
to them.’’ Davila read the alibi statements, but decided
that they were not credible because they conflicted
with certain testimony by S and J. As for potential
alibi witnesses, Davila testified that he ‘‘relied on the
statements provided to [him] by the state where [the
petitioner’s] common law wife or wife and his kids all
identified [the petitioner] as the person who committed
this crime.’’ Davila spoke with the petitioner’s sister ‘‘at
least two times’’ regarding her concern for the peti-
tioner, but he never discussed with her a possible alibi
for him.
At the habeas trial, the petitioner’s mother, Olga Kel-
lier, and sister, Delmarie Robinson, testified on his
behalf. Their testimony at the habeas trial was consis-
tent with the statements they had given to the investiga-
tor hired by Romano, all of which were included in the
file that Romano had given to Davila. Kellier testified
that the petitioner was at home all day on the day of
the assault, except when he picked S up from school.
She testified that she had received a telephone call from
the victim’s neighbor, Sylvia Neufville, at about 6 p.m.
on the evening of November 16, 2011. Neufville told
Kellier that the victim had been stabbed and that the
petitioner was the suspected perpetrator. Kellier called
up the stairs to the petitioner’s bedroom, but the peti-
tioner did not reply. Kellier then proceeded up the stairs
where she found the petitioner sleeping in his bedroom.
Robinson, who had arrived home from work just before
Neufville called, corroborated Kellier’s testimony.7 S
testified that she saw her father leave Kellier’s house
about ten minutes before the victim picked her up. That
testimony went uncontested when Davila declined to
cross-examine her and failed to introduce testimony
from Kellier or Robinson.
Although Davila claimed to have formed a ‘‘theory
of the case’’—that the petitioner did not attack the
victim—he did nothing at the petitioner’s criminal trial
to advance that theory. The petitioner consistently has
claimed that he did not assault the victim. Despite the
petitioner’s adamance, Davila declined to cross-exam-
ine any of the three people who were present at the
time of the assault. As noted previously, Davila failed to
meaningfully cross-examine any of the state’s witnesses
except for a police officer, whom he asked irrelevant
questions. See United States v. Cronic, supra, 466 U.S.
659 (denial of right of effective cross-examination
would be constitutional error of first magnitude and no
amount of showing of want of prejudice would cure
it). Davila declined to cross-examine the victim even
though she told police initially that she did not know
who had assaulted her. Even though the petitioner
steadfastly maintained that he never left his mother’s
house, Davila declined to cross-examine S, who stated
that she had seen him leave just before her mother
picked her up. Of course, cross-examination of S would
have been more effective if Davila had introduced evi-
dence of the petitioner’s alibi. Davila, however, did not
introduce any such evidence. The file given to and
reviewed by Davila contained witness statements sup-
porting the petitioner’s claim that he was at his mother’s
house when the assault occurred. Nevertheless, Davila
did not investigate the petitioner’s claim of alibi or
interview any of his witnesses, all of whom were avail-
able at the time of trial. It is clear from Davila’s testi-
mony at the habeas trial that he had already determined
that the petitioner was the perpetrator and that he
would be convicted of the assault of the victim. Davila’s
utter lack of advocacy on the petitioner’s behalf—in
declining to cross-examine the victim and her children
and failing to investigate his alibi—cannot reasonably
be construed as strategic. This is apparent from Davila’s
stated opinion that the evidence against the petitioner
was overwhelming and his implication that the petition-
er’s case was one in which there was no defense. Davila
failed to subject the state’s case against the petitioner
to any meaningful adversarial testing, and, pursuant
to Cronic, prejudice to the petitioner must therefore
be presumed.
The judgment is reversed and the case is remanded
with direction to grant the petitioner’s petition for a
writ of habeas corpus, to vacate the petitioner’s convic-
tion of assault in the first degree and the revocation of
his probation, and to order a new trial.
In this opinion the other judges concurred.
1
The petitioner also argues that the habeas court erred in concluding that
he was not denied the effective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Because
we agree with the petitioner’s Cronic claim, we need not address his claim
for relief under Strickland.
2
The revocation of the petitioner’s probation was based on his conviction
of the assault of the victim in this case, which we are ordering to be vacated.
Consequently, the revocation of his probation also must be vacated and the
case remanded for a new trial.
3
In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
4
Although the petitioner did not specifically invoke Cronic in his habeas
petition, and the habeas court did not explicitly rule on his Cronic claim,
he did argue, in both his trial brief and oral argument to the habeas court,
that Davila’s performance was so deficient that prejudice should be pre-
sumed under Cronic. The respondent, the Commissioner of Correction, has
not claimed on appeal that the petitioner’s Cronic claim is unpreserved.
Although our Supreme Court has declined to address ineffective assistance
claims ‘‘unless they arise out of the actions or omissions of the habeas court
itself . . . the petitioner in the present case did not raise any new claim
on appeal, he merely refined his argument as to the same alleged deficiency.
. . . Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)] introduces the concept of presumption of prejudice, which
Cronic later refines. . . . Thus, the petitioner did not introduce an entirely
new theory on appeal, obviating our concerns about fairness to the trial
court and opposing party.’’ (Citations omitted; emphasis in original.) Davis
v. Commissioner of Correction, 319 Conn. 548, 553 n.4, 126 A.3d 538 (2015).
Here, although the petitioner argued to the habeas court that Davila’s
representation of him was so deficient that prejudice should be presumed
under Cronic, the habeas court addressed prejudice only under Strickland.
Because, as noted in Davis, Strickland introduces the concept of presump-
tion of prejudice, later refined by Cronic, we follow the Davis court’s lead—
particularly in light of the fact that the state has fully briefed and argued
the petitioner’s Cronic claim—and review the petitioner’s claim that Davila’s
representation of him was so deficient that prejudice should be presumed.
5
The petitioner had also been removed from the courtroom for similar
disruptive behavior during his second competency hearing.
6
Although the petitioner did not allege that Davila ineffectively repre-
sented him at the sentencing hearing, we note that Davila argued only that
the way the petitioner ‘‘was portrayed during the course of the trial is
completely different from how his family and his pastor perceive him to
be. . . . So, in any event, I know that the court is going to be fair with him.
The court was fair throughout the trial, and I just leave it to Your Honor
to impose a fair and equitable sentence in this case.’’
7
In her statement to the investigator hired by Romano, which was con-
tained in the file that was forwarded to and reviewed by Davila, Neufville
corroborated Kellier’s statement that the petitioner had been upstairs sleep-
ing when she called Kellier. Neufville also told the investigator that the
petitioner could not have assaulted the victim and returned home quickly
enough to be found upstairs sleeping by Kellier.