DocketNumber: No. CV 92 0001430 S
Citation Numbers: 1998 Conn. Super. Ct. 4045
Judges: ZARELLA, J.
Filed Date: 3/31/1998
Status: Non-Precedential
Modified Date: 4/17/2021
The petitioner alleges that his trial counsel, Attorney Margaret Levy, was ineffective in that she failed to conduct an adequate investigation into facts and witnesses, failed to call witnesses on the petitioner's behalf, failed to allow the petitioner to testify and failed to prepare and present any evidence in support of the petitioner's defense.
II CT Page 4048
The petitioner's right to the effective assistance of counsel is assured by the
To prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness. Aillon v.Meachum,
In Strickland, the Supreme Court opined: "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . 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 CT Page 4049 reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy."Strickland v. Washington, supra,
With respect to the prejudice component of the Strickland
test, the petitioner must demonstrate that, "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, supra,
III
The petitioner claims that trial counsel failed to properly investigate the facts surrounding the crime in that he advised counsel of certain witnesses he wished her to interview which he CT Page 4050 claimed would provide information supporting his innocence. Specifically, the petitioner claims that he asked trial counsel to interview Charlene Arnold, Andrea Hannah, Lena Syms (L. Syms), David Mallory, D. Sparrow, N. Sparrow, Burge, Thompson, Mark Daniels, John Crooms and Gloria Hannah2 and to possibly call some of them as witnesses. Further, the petitioner claims that his right to testify at the criminal trial was denied to him by counsel in violation of his rights. The petitioner's final claim is that trial counsel failed to call any witnesses and rested after the state had concluded its evidence.
IV
The court makes the following additional findings of fact and conclusions of law. A few months prior to the commission of the crime, the petitioner had sprained his ankle and injured his thigh and back when he fell into an open manhole. He was admitted to the hospital emergency room, treated and released that same day. The petitioner made use of a cane to walk for some period of time after that injury. Arnold, the petitioner's mother, took him on two or three occasions to see a chiropractor who was treating the petitioner for these injuries. On these occasions, Arnold, who was living nearby with L. Syms, the petitioner's grandmother, would pick up the petitioner at the home of A. Hannah, with whom he was living. The petitioner would walk to and from the car aided by the cane.
Additionally, neither Arnold, L. Syms nor Hannah could state at the habeas hearing with any certainty that the petitioner was using a cane at the time of his arrest or at the time of the crime. Arnold testified that she could not say whether or not the petitioner was using a cane when he was arrested because No, I didn't really see him like the end of — that part of the time I didn't see him." (Habeas Transcript, October 17, 1997, p. 35.)
There was no direct testimony by any witness at the habeas hearing, including Arnold, that the petitioner was not clean shaven immediately after the commission of the crime. Thus, the petitioner has not sustained his burden of demonstrating any prejudice to him sufficient to raise a question as to the fundamental fairness of the trial even assuming that the failure to call Arnold as a witness was not a decision that fell within CT Page 4052 the broad range of reasonable professional competence.
Trial counsel testified that she went to the Niantic prison and talked with Hannah who was incarcerated at that time on drug charges. During the meeting at the prison, Hannah was unable to pinpoint the date of the crime, indicated that she had not participated in the crime, and indicated that the petitioner had a beard during the time period when the crime was committed.; Additionally, she indicated to trial counsel that the day after the crime she had been approached by D. Sparrow who indicated his belief that the petitioner had been involved in the crime.
Hannah testified at the habeas hearing that she did not recall ever meeting with trial counsel. She admitted, however, to having an extreme drug problem at that time in her life and her recollection of events during that time was scant and uneven. Hannah testified at the habeas hearing that the petitioner was clean shaven at the time the crime was committed.
Q Was he-did he have a beard, was he clean shaven? Do you recall back then?
A He didn't have a beard either.
Q So his appearance would have been short haired, clean shaven person back in those days?
A Yuh, basically, yuh.
Habeas Transcript, October 29, 1997, p. 13.
Hannah's testimony at the habeas hearing on this issue was diametrically opposed to the statement that she gave trial counsel, when she was incarcerated. For purposes of determining whether trial counsel was ineffective the court must judge whether the conduct of trial counsel fell below the objective standard of reasonableness set forth above. In doing so the court must use the facts that were known or should have been known to trial counsel at the time of representation. Thus, for purposes of determining whether the petitioner has met his burden of proof on the first prong of the Strickland test, the court assumes that counsel operated with the knowledge that Hannah would testify that the petitioner had a beard. In considering the prejudice prong of the Strickland test, however, the court can take into account the testimony of Hannah at the habeas hearing which was CT Page 4053 that at the time of the crime the petitioner was clean shaven. This is because the court, in determining whether the petitioner has been prejudiced by trial counsel's failure to use Hannah as a witness at trial, should consider how she would have testified under oath at the criminal trial weighed against what she had told counsel when interviewed at the prison.
As to the first prong of the Strickland test trial counsel testified that she weighed whether she should call Hannah as a witness and that she decided for strategic reasons not to do so. Trial counsel was particularly concerned with the fact that Hannah had indicated to her that shortly after the crime had been committed she had been approached by D. Sparrow who was trying to locate the petitioner. While trial counsel recognized that this statement in all likelihood would not be admissible, she was concerned that the witness may volunteer this statement when being cross-examined. The implication would be that D. Sparrow believed that the petitioner was involved in the commission of the crime. The petitioner knew D. Sparrow and had some involvement with him. This risk she felt outweighed the limited benefit that would be gained by Hannah's testimony that the petitioner had a beard at the relevant time. Trial counsel felt that this testimony could be refuted by the state by indicating that the petitioner could have shaved immediately before the crime. Additionally, Hannah had a significant drug problem at the time and was incarcerated. Her recollection of events, dates and times during this period was limited.
As to the prejudice prong of the Strickland test, Hannah's testimony at the habeas hearing also cast some doubt on what she would have testified to if called at the criminal trial. At the habeas hearing when placed under oath she testified that the petitioner was clean shaven at the time of the crime. While this contradicts what she told counsel when interviewed at Niantic, the court must weigh this fact in determining whether or not the petitioner was harmed by the failure to call her as a witness. A reasonable possibility exists that if called at the criminal trial and placed under oath she would have felt compelled to testify consistent with her habeas testimony — that the petitioner was clean shaven. While it is difficult to assess the effect of the oath on Hannah's testimony based on her testimony at the habeas hearing, the burden is on the petitioner to demonstrate that the petitioner was in fact prejudiced. That burden has not been met. The decision not to call Hannah as a witness was reasonable trial strategy and the petitioner has CT Page 4054 failed to demonstrate any prejudice resulting from that decision within the meaning of Strickland. C
The petitioner also claims that trial counsel was ineffective in that she failed to investigate the matter by not interviewing D. Sparrow, N. Sparrow and Burge.
Trial counsel contacted D. Sparrow who was incarcerated at the time at a prison in Somers by phone. He indicated there was no point in counsel visiting him since he had no knowledge of who committed the crime. This statement was consistent with what he had told his brother on the night of the incident and indicative of the fact that if he did know something he was not willing to disclose it.
Trial counsel testified that she engaged the services of a private investigator, Donald Gates, whom she claims she asked to visit her client and to talk with Burge and N. Sparrow. She testified that she had contacted the prison to advise them that Gates would be visiting. Further she indicated that she had correspondence to the petitioner dated September 19, 1991 indicating that she had retained Gates and that he would be going to Somers to see the petitioner. The only indication in her file of actual contact with Gates were notes of a telephone conversation with Gates. He advised her in that conversation that N. Sparrow and Burge had no interest in talking about the incident with him. In light of that trial counsel advised Gates that there was no reason for him to make a written report.
Gates was called as a witness at the habeas hearing and was unable, after a diligent search of his records, to find any indication that he had been retained by trial counsel to carry out this investigation. He indicated that he keeps all his files on computer disk and that he found no record of any investigation on behalf of the petitioner nor did he have any present recollection of being retained on this matter. He testified that it was possible that trial counsel had talked to him about the case but if he had been actively investigating the matter he would have created a file. Further he indicated that it was his practice to generate a written report. Based on the testimony, and drawing reasonable inferences therefrom, the court finds that Gates did call Burge and N. Sparrow and having no success in obtaining an interview orally reported this to trial counsel. CT Page 4055 Since the investigation required little time and since no report was generated, Gates did not retain any record.
No evidence was presented at the habeas hearing as to what information would have been uncovered if trial counsel had in fact been successful in obtaining an interview with these three individuals. Whether the defense of the petitioner would have been strengthened in any conceivable manner is entirely speculative and thus the burden to satisfy the prejudice prong of the Strickland test has not been met.
As to Thompson, trial counsel had no recollection of either asking Gates to interview him or actually contacting him herself and the court finds that she did neither. However trial counsel was aware that Thompson was out on bond for robbery in the first degree on an unrelated matter at the time and in direct communication with the police.
Crooms and Daniels did not testify at the habeas hearing, therefore, it is impossible to determine what the substance of their testimony would have been or what information they could have supplied to trial counsel that would have been of value. The petitioner suspected Crooms and Daniels of being the perpetrators of the crime. When trial counsel was preparing for trial, they were both incarcerated and awaiting trial in Part A of the Superior Court. They were both represented by counsel. Trial counsel felt, based on her experience, that talking with their counsel in an effort to gain permission to talk with Crooms and Daniels would have been fruitless. She felt it was highly unlikely that their attorney would allow them to discuss this matter with her, never mind testify at trial. It is uncontroverted that there were three assailants who invaded the victims' house on the night of the crime. While Crooms and Daniels may have been two of those individuals, that would not have necessarily eliminated the petitioner as the third participant.
As to Thompson, the petitioner wanted him interviewed as a CT Page 4056 potential source of information as it was Thompson who first pointed to the petitioner as potentially one of the perpetrators. During the time immediately preceding the trial, Thompson was out on bond on an unrelated charge of robbery in the first degree and was in contact with the police. Thompson also did not testify at the habeas hearing.
It was clear from the testimony that little effort was put in by trial counsel in this phase of the investigation. The minimal burden involved in attempting to contact these individuals would suggest that a reasonably competent trial attorney make that effort, even if the possibility of obtaining cooperation was remote. However the court need not decide whether the failure by trial counsel to contact counsel for Crooms and Daniels and to contact Thompson was an exercise of reasonable professional judgment or incompetent pretrial investigation. This is because the burden on the petitioner to establish any prejudice resulting from counsel's alleged failure has not been met. As earlier noted Crooms, Daniels and Thompson were not called as witnesses at the habeas hearing and thus their value to the petitioner's defense efforts remains wholly unknown. Therefore the petitioner has failed to meet his burden on the prejudice prong of theStrickland test. A habeas court need not decide the deficiency of trial counsel's performance if consideration of the prejudice prong will be dispositive of the claim of ineffectiveness. Aillonv. Meachum,
Trial counsel, prior to trial and at various points during the trial, discussed with the petitioner the issue of whether he should testify on his own behalf. Trial counsel advised the petitioner against testifying. This recommendation was strongly influenced by the inability of N. Sparrow to identify the CT Page 4057 petitioner at the trial. The petitioner was not coerced by trial counsel into not testifying nor was he unaware of his right to testify, if he so desired, despite counsel's advice. The petitioner testified at the habeas hearing that he wished to testify. It is clear that the petitioner has the right to testify at his criminal trial on his own behalf. Ostolaza v. Warden,
Zarella