DocketNumber: No. CV98-0002712
Citation Numbers: 2003 Conn. Super. Ct. 2171
Judges: FUGER, JUDGE.
Filed Date: 2/10/2003
Status: Non-Precedential
Modified Date: 4/18/2021
As regards the claim of ineffective assistance of counsel, the petitioner alleges that his trial defense counsel: failed to pursue pretrial motions on the petitioner's behalf relative to suppression of identification, failed to properly investigate the case, failed to allow petitioner to testify on his own behalf and failed to request a mistrial after an improper in-court photo identification of the petitioner.
As regards the claim of actual innocence, the petitioner alleges that he had an alibi that would have led to a verdict of acquittal from the jury.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Fairfield at Bridgeport, under Docket Number CR95-109692 entitledState v. Tinsley. On February 28, 1996 the petitioner was convicted by a CT Page 2172 jury of Robbery in the first degree in violation of CGS §
2. The petitioner was represented at his trial by Attorney Jonathon Demirjian, one of the attorneys assigned to the staff of the Public Defender's office in the judicial District of Fairfield.
3. The appeal of this conviction was denied by the Appellate Court in a decision entitled State v. Tinsley,
4. On May 5, 1995, the victim was having trouble starting his car, which was parked on South Avenue in Bridgeport. He had raised the car's hood and was attempting to remedy the problem when the petitioner approached, stuck a handgun in his side and demanded money. The victim gave him $20, and the petitioner walked away, still holding the gun in his hand.
5. The petitioner elected to exercise his right to silence and did not testify at his trial.
6. No evidence of an alibi was presented at the petitioner's trial.
7. At the habeas trial before this Court, the petitioner did testify and stated that at the time of the Robbery he had been working at a slaughterhouse in New York City. He could not remember the name of the company, the address of the company, or the name of his employer. The petitioner offered that his sister, Sarita, could substantiate his alibi, however, at present, the petitioner did not know where his sister was. The petitioner stated that he provided all of this information to his trial defense counsel.
8. The petitioner's trial defense counsel testified that he was not aware of any alibi defense that could have been raised on the petitioner's behalf. He testified at the habeas trial that he had not received any names of a business or an employer. Further the petitioner's trial defense counsel testified that he was aware of the petitioner's sister and thought that she would be of little help since she had already provided negative information concerning the petitioner to the police.
9. The trial defense counsel did file a motion to suppress the identification of the petitioner. CT Page 2173
10. The petitioner has a lengthy criminal record dating back to 1971 and includes convictions of numerous felonies involving firearms.
11. To the extent that there is any potential alibi evidence to be discovered, it is evidence that could have been discovered by the petitioner at the time of his original trial with the exercise of due diligence.
Discussion of Law
The petitioner comes before this Court with a claim of actual innocence in regard to the offenses of which the jury found him guilty after a trial. He faces two difficult obstacles to overcome before relief may be granted. First, "taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom, . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner of Correction,
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship,
In Clarke, the Appellate Court "concluded that although no governing standard of proof exists under which a claim of actual innocence should be evaluated,2 such a claim must, nonetheless, be based on newlydiscovered evidence. Williams v. Commissioner of Correction, supra,
So, at least for the present, the petitioner must demonstrate that his testimony of an alibi defense is newly discovered evidence by proving with a preponderance of the evidence that he could not have discovered such evidence earlier through the exercise of due diligence. It is clear that the testimony offered by the petitioner cannot be considered newly CT Page 2175 discovered evidence. In the absence of some sort of persuasive evidence that the petitioner suffered from a transitory amnesia at the time of his original trial that prevented him from remembering that he was employed in New York City on the date of the robbery, his testimony cannot ever be considered newly discovered. While the petitioner has an absolute right to use the protections of the
While the decision of this Court in regard to the question of newly discovered evidence is a resolution of this matter and a sufficient basis, in and of itself, to deny the petition, the Court will continue to analyze the claim of actual innocence as if the newly discovered evidence rule had been satisfied.4
The burden of proof in a habeas proceeding in which the claim is actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt."Miller v. Commissioner, supra, at 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." State v. Bonello,
The petitioner has been tried before a jury of his peers and found to be guilty beyond all reasonable doubt. The right to a trial by jury is one of our most sacred rights in the Anglo-American system of law. Courts have, and continue to, afford extraordinary deference to a decision made by the jury. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that jury verdict and order a new trial and that is one of the reasons that there is such a high standard for the petitioner to overcome in order to achieve relief. The "clear and convincing" standard that this Court must apply "should operate as a weighty caution upon the minds of all judges and it forbids relief whenever the evidence is loose, equivocal or contradictory."Lopinto v. Haines,
The "new"5 evidence produced by the petitioner was his own testimony to the effect that he had an alibi. This evidence simply is not convincing. First, despite the fact that the petitioner seems to have a pleasant personality and is likable enough, he is a convicted felon several times over. This is a factor that has an adverse effect upon, and may be considered when determining, the credibility of any witness.6
Additionally, the testimony of the petitioner was vague and inconclusive. Given all of this, it is difficult to say that the testimony was anything except "loose, equivocal or contradictory." Not only must the petitioner prove with clear and convincing evidence that he is actually innocent (something that he failed to do) he must also prove that no reasonable finder of fact would find the petitioner guilty.Miller v. Commissioner,
Insofar as the alleged deficient performance of the petitioner's trial defense counsel, any claim of ineffective assistance of counsel must CT Page 2177 satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington,
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v.Lockhart,
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to relitigate a case in a different manner. It is indisputable fact that many times if one had foreknowledge of certain events, different courses might well have been taken. Likewise, a habeas court knowing the outcome of the trial "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections,
It is not necessary to consider whether a trial counsel's performance was deficient if the habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v.Washington, supra, 697; see Nardini v. Manson,
In the instant case, it is clear that the petitioner's trial defense counsel did do a good job of representing the petitioner. Despite the chimerical claim of an alibi defense raised at the habeas trial, it does not appear that this fact was brought up to Attorney Demerjian. The petitioner's trial defense counsel is unequivocal in stating that had he been aware of a viable alibi defense, he would have pursued it. As it was, the petitioner could not offer any alibi, nor in any way account for his presence at the time of the crime. His testimony would have been confined to a denial of having committed the robbery. Given the criminal record of the petitioner and the virtual certainty that he would have been impeached with same, it was prudent for the petitioner's trial defense counsel to advise the petitioner not to take the stand. The ultimate decision to testify or not to testify rests with the defendant and there has been no evidence introduced by which this Court can conclude that the petitioner's will was overborne and his decision not to testify coerced.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge