DocketNumber: No. CV96 032 42 65 S
Citation Numbers: 2001 Conn. Super. Ct. 2636
Judges: RESHA, JUDGE.
Filed Date: 2/15/2001
Status: Non-Precedential
Modified Date: 4/18/2021
Petitioner filed a writ of habeas corpus on September 21, 1995, claiming ineffective assistance of counsel. The habeas corpus proceeding was stayed pending final resolution by the Connecticut Supreme Court. Petitioner then filed an amended petition, dated July 17, 1999, and subsequently filed a second amended petition, dated March 8, 2000, alleging ineffective assistance of both his trial and appellate counsel.
The petitioner's habeas trial occurred over six days on the following dates: March 20, 2000, May 1, 2000, May 15, 2000, June 12, 2000, July 10, 2000 and September 25, 2000.
The court heard the testimony of several witnesses over the course of the trial, including: (1) the petitioner; (2) Lt. Adam Radzmirsky, of the Bridgeport Police Department; (3) Assistant State's Attorney John C. Smriga; (4) Captain Robert Studivant, of the Bridgeport Police Department Internal Affairs Division; (5) Sgt. David Daniels, of the Bridgeport Police Department; (6) Det. John Kennedy of the Bridgeport Police Department; and (7) petitioner's appellate counsel, Attorney Kent Drager. The court took judicial notice of the fact that Attorney Paul M. Tymniak, petitioner's trial counsel, died in July, 1999, and was therefore not available as a witness at these proceedings.
Petitioner claimed his trial counsel, Attorney Paul M. Tymniak, a special public defender, was ineffective in that he failed to move to dismiss the count of criminal use of a firearm because the underlying predicate felony of attempted robbery was unduly prejudicial, that Attorney Tymniak did not properly pursue a motion in limine to exclude petitioner's prior convictions if he testified, that Attorney Tymniak did not adequately develop evidence which would support a defense of self-defense or abandonment, that he failed to develop the testimony of Bridgeport police officers, David Daniels or Glen Prentice, which would have supported the above defenses, and that Attorney Tymniak failed to object to the absence of the court reporter and the occasional absence of the trial judge during voir dire. Petitioner claims that his appellant counsel, Attorney Kent Drager, an assistant public defender, was ineffective in that he failed to raise on appeal that the exclusion of Daniels' and Prentice's testimony violated his fundamental right to present a defense.
The United States Supreme Court "uniformly has been guided by the proposition that the writ [of habeas corpus] should be available to afford relief to those persons `whom society has grievously wronged' in light of modern concepts of justice." Kuhlmann v. Wilson,
To prevail on a constitutional claim of ineffective assistance of counsel, petitioner must demonstrate both a deficient performance and actual prejudice. Id., 455. To satisfy the first prong, petitioner must establish that his counsel made "errors so serious that [he] was not functioning as the `counsel' guaranteed the [petitioner] by the Sixth Amendment." Strickland v. Washington,
Petitioner argues that his trial counsel was ineffective by failing to move to dismiss the information on the ground that it contained explicit reference to petitioner's prior conviction for attempted robbery and by stipulating to admission into evidence of said conviction. Petitioner, however, admits that trial counsel did file a "boiler plate" motion, but claims that the basis of said motion was not sufficiently set forth. Attorney John C. Smriga, a supervisory assistant state's attorney, testified that he was the state's attorney who tried petitioner's CT Page 2639 criminal matter. He testified that petitioner had previously been convicted of one of the enumerated felonies and therefore was charged with the crime of criminal possession of a firearm. He stated that an attempted robbery in the first degree was one of those enumerated felonies, and therefore, he used this as the predicate felony. Attorney Tymniak did object, in chambers, to the use of this felony to Attorney Smriga and to the trial court. He further testified that the trial judge spent a lot of time discussing issues in chambers. Attorney Tymniak tried to persuade Attorney Smriga to eliminate this count and then attempted to have him use an unnamed felony. Attorney Smriga testified that he would not change the language of this count unless ordered to do so by the trial court, and the trial court indicated it would not do so. He further testified that, in his opinion, Attorney Tymniak did not have a valid legal argument to have him remove the attempted robbery as the predicate felony. Attorney Tymniak did stipulate that petitioner had been convicted of this felony, thereby eliminating the need for the state to prove this before the jury. By this stipulation, it prevented the state from proceeding with the evidence relating to the underlying crime of attempted robbery. If not for the stipulation, the state would have produced an extended period of proof before the jury of his prior conviction. Attorney Smriga testified that, in his experience, other attorneys faced with this circumstance almost always stipulate to the crime.
Here, petitioner has failed to demonstrate how Attorney Tymniak's conduct fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law. Valeriano v. Bronson,
Petitioner also claims that Attorney Tymniak was ineffective in not using State v. Banta,
Petitioner claims that Attorney Tymniak failed to include case law in his motion in limine. The trial court ruled that petitioner's prior robbery convictions could be used by the state to impeach petitioner's credibility if he testified and that the state could use these convictions by name. Further, that other felony convictions would come in CT Page 2640 as prior felonies, but not by name. Petitioner never testified that, but for the trial court's ruling on the motion in limine, he would have testified. Therefore, petitioner has failed to demonstrate any prejudice.
In State v. Pinnock,
Petitioner claims further that his trial counsel failed to develop and present evidence at trial regarding an Internal Affairs investigation of one of the investigating officers.
Specifically, petitioner's claim is that trial counsel failed to develop and present evidence at trial tending to show that one of the investigating officers for this case, Det. John Kennedy, had previously been involved in an attempted cover up of a previous incident on February 15, 1990, in which the petitioner was punched, while handcuffed, by a member of the Bridgeport Police Department.1 That prior incident was the subject of an Internal Affairs investigation that resulted in departmental charges being brought against Det. Kennedy and other officers in the Bridgeport Police Department. Petitioner claims that evidence of Det. Kennedy's role in the incident and the findings of the Internal Affairs investigation, including the charges against Det. Kennedy, should have been offered by trial counsel as evidence of bias on the part of the Bridgeport Police Department, and as evidence tending to undermine the credibility of petitioner's confession to Det. Kennedy's immediate superior during the investigation of this case, Det. Sgt. Glen Prentice.
Attorney Smriga testified that he first learned of the Procaccini incident from Attorney Tymniak during pretrial discussions and that Attorney Tymniak was prepared to use this incident during trial. Attorney Smriga obtained the Internal Affairs record, and he and Attorney Tymniak reviewed the report. As part of his motion to suppress the statements, petitioner claimed that the Bridgeport police were motivated to lie, because they were angry at him for getting Procaccini in trouble and were looking for revenge. Both Officers Kennedy and Prentice testified at the CT Page 2641 suppression hearing.
Attorney Drager, petitioner's appellate counsel, testified that petitioner's theory, supported by his testimony at the hearing, was not that he falsely confessed but that Prentice had put things into the confession he did not say. (Tr., 6/12, p. 14.) Attorney Drager further stated that petitioner testified that he gave statements to Prentice which Prentice put down, but in addition, Prentice added his own facts to those statements. Petitioner did not testify that Prentice intimidated him into giving a false statement. (Tr., 6/12, p. 18.) Attorney Drager testified that Attorney Tymniak was trying to tell the jury that they could not credit Prentice's testimony or the statements he took; however, the trial court ruled this evidence inadmissable. (Tr. 6/12, p. 22.) Attorney Drager further testified that Attorney Tymniak could not, at trial, claim that petitioner was coerced into making the confession because petitioner had not so testified at the suppression hearing. He testified that Prentice added facts to the confession and not that he, petitioner, had falsely confessed. (Tr., 6/12, p. 27.) Attorney Smriga testified that Attorney Tymniak's theory on the motion was to show that the police were motivated to lie because of the Procaccini incident, and therefore, they would alter their testimony. He also testified he would have tried the case without the statements, because he had other strong evidence of petitioner's guilt. (Tr., 7/10, pp. 17-18.)
Detective John Kennedy testified he had arrested petitioner on February 15, 1990, at the railroad station, and when Procaccini arrived at the scene, petitioner and Procaccini exchanged words, and Procaccini hit petitioner. It is clear that Kennedy was involved with the crime which is the subject of this habeas. He interviewed the deceased brother and showed him a photo array, but the brother did not make an identification. He also interviewed the victim's wife, and she picked out petitioner's photo, but was uncertain of her identification. (Tr., 5/15, p. 43.) Kennedy testified he accompanied Prentice to Hartford, and when he went into the hospital room, he saw petitioner in the bed and he left the room. He went to a superior in the detective bureau and asked not to be involved in the investigation, and his request was granted. (Tr., 5/15, pp. 49, 91.) Detective Kennedy also testified at the suppression hearing.
Petitioner claims that Det. Kennedy's involvement with the Procaccini incident should have been before the jury. This, however, ignores both the Appellate Court and Supreme Court decisions, which clearly indicate that both appellate tribunals agreed with Attorney Tymniak's proffer of the same evidence through Prentice and Officer David Daniels but found that trial court's restrictions on this evidence was harmless beyond a reasonable doubt. State v. Joyce,
Petitioner claims that Attorney Tymniak should have offered Officer David Daniel's testimony to challenge petitioner's confessions to Prentice. He claims this testimony could have been used to show his confession was not voluntary under Crane v. Kentucky,
Petitioner claims that, based on Officer Daniels' testimony, his attorney could have argued to the jury that petitioner feared the Bridgeport police because of the prior beating, and therefore, his confession is unreliable. Attorney Drager testified that, in his opinion, Attorney Tymniak could not attack the confession under Crane because petitioner had testified that he was not coerced into making the confession, but rather, Prentice added facts, and it was a false confession. Officer Daniels' testimony would not have supported this theory. At trial, Attorney Tymniak was attempting to challenge the credibility of Prentice as he was the only witness to the confession. (Tr., 6/12, p. 39.) Attorney Drager testified that Crane is used when a defendant is claiming that he told the police something that is not true because he wants the police to stop harassing him. Here, petitioner testified everything he told Prentice was true but Prentice added things to the statement which he did not say. Therefore, it would be misleading to suggest to the jury that petitioner gave a false, coerced confession when that did not happen or is not what petitioner claimed happened. (Tr., 6/12, p. 46.) Daniels' testimony, therefore, could not be used for the purpose claimed by petitioner.
Petitioner also claims that the absence of the trial judge and stenographer deprived him of an adequate record and that his attorney CT Page 2643 should have objected to their absence at the time of trial. The Appellate Court found the record was adequate and reviewed this claim on appeal.State v. Joyce, supra,
Petitioner cites State v. Patterson,
Petitioner's final claim that his appellate counsel was ineffective in that he failed to raise as an issue that the trial court's exclusion of Officer's Daniels' and Prentice's testimony deprived him of presenting a defense. Petitioner is not speaking of the traditional criminal defense of self-defense, diminished capacity, or third party culpability, for example, but rather to show the jury that petitioner confessed because of a fear of being beaten. Attorney Drager testified that he believed that Attorney Tymniak could not ethically make such an argument, because petitioner did not testify to such fears at the suppression hearing. Petitioner's claim was that Prentice wrote a false confession, and Attorney Drager said that is all that Attorney Tymniak could argue to the jury.
At the suppression hearing, in an offer of proof, Prentice testified that he only became aware of petitioner's involvement in the Procaccini CT Page 2644 incident after he took the statements. (Tr., pp. 584-85.) Prentice testified that Procaccini was a "brother police officer, that's it." (Tr., pp. 601-02.) Daniels, in an offer of proof, testified that for thirty to sixty days after the incident, his fellow police officers, including Prentice, did not speak to him. (Tr., pp. 710-11.) The trial court excluded the evidence, Attorney Tymniak preserved the issue, and Attorney Drager raised the claim on appeal. The matter was fully discussed by the Appellate Court, and although the court agreed with Attorney Drager that the exclusion of this evidence was error, however, the error was held to be harmless. State v. Joyce, supra,
The constitutional right to the effective assistance of counsel includes the right to such counsel on appeal. Evitts v. Lucey,
A complete review of the testimony and evidence presented allows this court to find that the petitioner has received the effective assistance of counsel both on the trial and the appellate levels. The subject case is a most serious one, one in which the petitioner has been found guilty of killing another person in the course of committing a felony. He has received a sentence of ninety years for this offense. Petitioner had a jury trial before an experienced judge with the assistance of an attorney who apparently understood the complexities of the law and this case. Attorney Tymniak raised the appropriate issues throughout the suppression hearing and trial. The trial court made rulings on those issues, and those rulings were reviewed by the Appellate Court. Petitioner also had the very capable assistance of appellate counsel. Attorney Drager CT Page 2645 presents himself with an excellent educational background and substantial experience in the field of appellate work. His testimony before this court is found to be most credible. of the issues he presented to the Appellate Court, the only error in the trial proceedings was found to be harmless beyond a reasonable doubt and did not warrant a new trial. The Supreme Court then dismissed the appeal after considering briefs and oral arguments of the parties.
It is not the function of this court to "second-guess" the decisions of petitioner's attorneys. Those decisions have been made, ruled upon by a judge and reviewed by the Appellate Court. Each decision of counsel was made in the heat of trial and with a variety of consequences. To view these decisions with the benefit of hindsight would not be appropriate nor is it the proper standard. Facing the significant weight of evidence against his client, Attorney Tymniak did an effective job of protecting the interests of his client. He evidently provided sufficient representation for the jury to acquit the petitioner on the charges of attempted murder and assault in the third degree. There has been no evidence presented that would allow this court to find that he failed to adequately represent the interests of his client, as defined by state and federal law.
This court does, therefore, find that petitioner has received the effective assistance of counsel both at the trial and appellate levels. The petition is, therefore, dismissed, and the habeas denied.
Resha, J.