Hector Rios v. Warden
-- October 17, 2011
MEMORANDUM OF DECISION
THE COURT: I have considered the testimony and the exhibits, the complete file, and the arguments of counsel, and on the basis of those documents and that evidence, the petition for writ of habeas corpus is denied.
The first, perhaps, main claim of the petitioner is that counsel did not—trial counsel did not adequately cross-examine the witnesses, particularly with regard to whether their stress or medical condition affected their ability to make accurate identifications.
The general standard here is stated in Velasco v. Commissioner of Correction, 119 Conn.App. 164, at 172, cert. denied, 297 Conn. 901, 2010. An attorney's line of questioning on examination of a witness clearly is tactical in nature. As such, this Court will not in hindsight second-guess counsel's—excuse me—second-guess counsel's trial strategy. 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.
In this case, counsel had valid strategic reasons for not inquiring further on the questions of stress and medical condition in that highlighting this information and this subject might well have highlighted the serious nature of the victims' injuries and hurt the petitioner's case.
In fact, that was Mr. Moscowitz's very reason for objecting to the state's introduction of medical records in that he was concerned that evidence that showed a bullet track through the kidney and spine of the victim might hurt the petitioner's case. This concern is certainly reasonable.
The fact is, however, that Mr. Moscowitz did cross-examine the witnesses, both the civilian victims and the police detectives, on the question of whether they were in stress and whether the medical condition of the victims diminished their ability to make accurate identifications.
He did so at the motion to suppress. See Exhibit 5, Page 97, and Exhibit 6, Page 52. He did so in front of the jury. See Exhibit 5, Page 42, 74, and 206, and Exhibit 7, Page 9, Pages 32 to 35, and Page 85. And he brought this out during closing argument. See Exhibit 9, Pages 43 and 50.
So counsel did more than adequately elicit on cross-examination of the witnesses information that might have cast a doubt on the accuracy of the identifications by showing that—or attempting to show that the victims were experiencing stress or were on medication or were suffering from medical conditions that inhibited their ability to make accurate I.D.s.
Finally in this issue, there's no showing of anything in the medical records that would be of any further benefit to counsel; therefore I find no ineffective assistance on this issue.
The second issue seems to be that counsel was deficient with regard to consulting with and calling an expert in the area of eyewitness identification. First, there's no showing that at the time of this trial in 1999, the standard of care required trial counsel to consult with or call an expert on this subject.
But in any event, Mr. Moscowitz did do so. He attempted to consult with Professor Cassan, and he did consult with Elizabeth Loftus. Perhaps as a result of this—in doing so, he attempted to learn areas that would assist him in cross-examination, and perhaps as a result of this consultation, Mr. Moscowitz did bring out—and attempted to bring out further information, over objection—some of the very topics that I've just discussed concerning stress and medical condition.
In fact, at one point, Mr. Moscowitz's questions became so based on topics that an expert might raise that the Court remarked, Are you trying to do what you can't do with an expert? See Exhibit 7, Page 39.
So it's clear that Mr. Moscowitz did benefit from expert consultation and did use expert advice to petitioner's advantage.
The other aspect of this claim concerns whether counsel had an obligation to call an expert to testify, and if so, what expert? Again, the standard of care did not require trial counsel to call an expert on eyewitness identification at the time of trial in 1999.
At that time, the latest Supreme Court case was State v. McClendon, 248 Conn. 572, and particularly at Pages 585 to 590, 1999, in which the Supreme Court had just held that such expert testimony on eyewitness identification invades the province of the jury.
So attempting to call an expert would at best be a novel theory, and counsel is under no obligation to raise novel theories of law. See Ledbetter v Commissioner of Correction, 275 Conn. 451, at 461 to 62. It's a more recent case. I don't have the year, but it's a well-established principle of law.
In any event, Mr. Moscowitz went above and beyond the standard of care and did attempt to call an expert to trial. See Exhibits 16 and 17 in this habeas case. This was clearly an enlightened approach by counsel.
Although the Court would not have allowed the petitioner to do more than make an offer of proof any attempt to—and any attempt to call an expert as a witness in front of the jury was rebuffed by the trial Court, both in chambers and on the record, counsel certainly tried. See Exhibit 7, Pages 44 to 45.
Further, the fact that Mr. Moscowitz attempted to call a psychologist rather than a psychiatrist made no difference. In either event, it is clear that the Court would not have allowed it.
And in addition, the choice of which expert to call is largely a matter of professional judgment. See Echols —E-c-h-o-l-s—v. State, 354 Ark. 530, at 554, 127 S.W.3d 486, 2003.
Further, Mr. Moscowitz had strategic reasons for not attempting further to call an expert. Mr. Moscowitz reasonably felt that he could bring out many of the same points that an expert would raise by cross-examination of the officers, in essence making them his own experts, and that juries did not like the idea of hiring their own paid expert. These were valid strategic reasons for not pressing the issue further.
In addition, this case was complicated by the fact that there were two I.D.s made by two different victims. It is not clear that an expert could have made any difference in this situation.
So on this issue, counsel did all he could, went above and beyond what he was required to do, and there is no showing that anything he did not do would have made a difference in this case.
The final issue appears to be Mr. Moscowitz's decision not to raise on appeal an issue concerning the trial Court's denial of his attempts further to cross-examine the witnesses concerning their stress and medical condition at the time of their identifications.
First, there is no showing of any specific ruling by the trial Court that should have been challenged and that was erroneous.
Second, given that petitioner was allowed to ask some questions on cross-examination concerning stress and medical conditions, it is unlikely that he would have prevailed in arguing that denial of further cross-examination—if indeed he was prevented from cross-examining further—was either an abuse of discretion or a denial of the right to confront witnesses.
See especially Exhibit 7, Pages 47 to 50, where the trial Court offered Mr. Moscowitz more leeway in a specific way of cross-examining the witnesses on stress and medical conditions that the trial Court found permissible.
Finally, Mr. Moscowitz had a valid strategic basis for not raising this issue beyond the fact that there was probably little merit in it. Mr. Moscowitz reasonably believed that he should narrow his issues and just raise the best issues that he identified, and he did do so.
This is a recognized valid strategy of appellate advocacy. As the Courts have said, legal issues depreciate through over-issue.
So Mr. Moscowitz did not—was not deficient in rendering appellate assistance of counsel, and there is no showing that any deficiency prejudiced the petitioner.
In conclusion, I find no ineffective assistance of counsel, either at trial or on appeal, and for those reasons, the petition is denied.
The court reporter is ordered to produce a transcript of my decision which will serve as a memorandum of decision.
Petitioner's counsel shall prepare a judgment file within thirty days of the decision, and the petitioner is entitled to notice of his right to appeal and apparently has been given that notice.
Are there any questions or corrections that are necessary at this time, either counsel?
ATTY. CLIFTON: The respondent knows of none.
ATTY. DAY: No, Your Honor.
THE COURT: I thank both counsel for their courtesy and professionalism.
We'll stand adjourned.
(The matter was concluded, and court was adjourned for the day.)
Carl J. Schuman, Superior Court Judge
Schuman, Carl J., J.