254210 v. Commissioner of Correction (2009)

Memorandum of Decision

The petitioner, Caesar O'Neil, alleges in his petition for a Writ of Habeas Corpus filed on January 15, 2003 ¹ that his convictions for:  [a] assault in the first degree in violation of CGS § 53a-59(a)(1), [b] murder, in violation of CGS § 53a-54a;  and, [c] tampering with a witness in violation of CGS § 53a-151 were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut.   He specifically claims, in a three-count complaint:  to have been deprived of the effective assistance of Atty. Lawrence Hopkins who served as his trial defense counsel;  and, to be actually innocent of these crimes.

This matter came on for trial before this Court on July 30, 2009, and for a final time on November 5, 2009 at which time testimony was received from the petitioner, the petitioner's trial defense counsel, Atty. Lawrence Hopkins, and Mr. Eddie Smalls.²  In addition, the Court received several pieces of documentary evidence, including the transcript of the petitioner's underlying criminal trial.   At the conclusion of the trial on the merits, the Court summarily dismissed the petition,³ with the exception of an allegation that Atty. Hopkins was ineffective for failing to object to the hearsay testimony of Detective William Perez about a statement attributed to Mr. Donald Vernon by an unnamed police officer.   As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof as to the remaining claim and the petition shall be denied.

The Court has reviewed all of the testimony and documentary 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 under Docket Number CR97-127429 entitled State v. O'Neil in which he was charged, inter alia, with [a] assault in the first degree in violation of CGS § 53a-59(a)(1);  [b] murder, in violation of CGS § 53a-54a;  and, [c] tampering with a witness in violation of CGS § 53a-151.

2. Attorney Lawrence Hopkins represented the petitioner at trial.

3. Detective William Perez testified that he had been told by another officer that Donald Vernon knew who had shot him and identified the petitioner as the shooter.

4. The petitioner, after a trial to the jury, was convicted of these counts.

5. The court, Comerford, J., thereafter sentenced the petitioner to a total effective sentence of seventy-five years to serve.

6. The petitioner appealed his conviction but said appeal was decided adversely to the petitioner.  State v. O'Neil, 67 Conn.App. 827 (2002).

7. Additional facts shall be discussed as necessary.

Discussion of Law

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, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).’  Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) ․ The presumption of innocence, however, does not outlast the judgment of conviction at trial ․ Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is ‘innocent,’ but on the contrary as one who has been convicted by due process of law.”  Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).   The burden of proof in a habeas petition, therefore, rightfully rests upon the petitioner.

In the instant case, the petitioner alleges that his trial defense counsel were ineffective for not objecting to the hearsay testimony by Detective Perez.   In order to prevail on the issue of whether there has been ineffective representation by the petitioner's counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. den.  467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d (1984) before the Court can grant relief.   Specifically, the petitioner must first show “that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  Strickland, infra at 687.   If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving “that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.”  Strickland, infra at 687.   In short, the petitioner must show both deficiency and prejudice.   A failure to prove both, even though counsel's performance may have been substandard, will result in denial of the petition.

In the instant case, the petitioner must first prove that it was deficient performance by Attorney Hopkins to fail to keep this testimony by Detective Perez from coming into evidence.   If so, then the petitioner must next prove that there is a reasonable probability that the result of the trial would have been different, e.g. that he would have been acquitted of these charges had he done so.   In other words, the petitioner must demonstrate that, but for the hearsay testimony by Detective Perez, he would have been acquitted of these charges.

Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate the underlying case in a different manner nor to reargue an unsuccessful appeal.   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. Commisioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den.  243 Conn. 967 (1998).  “A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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 reasonable professional assistance.”  Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).

Nor is a habeas trial a chance for a petitioner to play “Monday morning quarterback.”  “Judicial 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 ․ The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges.   Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense.   Counsel's performance and even willingness to serve could be adversely affected.   Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client.”  Strickland v. Washington, 466 U.S. 668 at 688 (1984).

Justifiably, then, the burden of persuasion in a habeas case rests with the petitioner because of the “fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence.”   Summerville v. Warden, 229 Conn. 397 at 419 (1994).   There is, therefore a strong societal interest “in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility.”  Id.

Moreover, it is not even 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, 207 Conn. 118, 124, 540 A.2d 69 (1988) (‘[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice’).”  Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).

Addressing the specifics of the allegations in the instant case, it is abundantly clear that there was no prejudice demonstrated at the habeas trial.   Even though the testimony by Det. Perez that he had been told by another police officer that Mr. Vernon had told another officer he knew who had shot him was hearsay, there was no possible prejudice that could have inured to the detriment of the petitioner.   Det. Perez did ultimately obtain a statement from Mr. Vernon to the effect that it was the petitioner who had shot him.   Moreover, Mr. Vernon explained that he initially lied about who shot him because he was concerned about repercussions that might befall his family if he talked.   Although it is true that Det. Perez used this admission to another officer to bring Vernon around to telling the truth about who shot him, that was a police investigative technique and not evidence that could have led to the conviction.   The remains that the petitioner did not present any evidence at the habeas trial that would lead this Court to conclude that there was any likelihood that the outcome of the trial would have been any different.  “To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal.  Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962).  D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984);  see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989).   In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction.”  (Internal quotation marks omitted.)  Buckley v. Commissioner of Correction, 222 Conn. 460-61.  Summerville v. Warden, 229 Conn. 397 at 419 (1994).   The petitioner's evidence fails to overcome that burden.

This admonition from the United States Supreme Court bears reiteration.  “A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged ‘action might be considered sound trial strategy’ ․ [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable and professional judgment.”  (Citations omitted.)  Strickland v. Washington, supra, 466 U.S. 689-90.   This Court will find that the strategic and tactical decisions of counsel, as well as the manner in which he carried them out to be within the acceptable range of performance.⁴  Even if this Court were to presume deficient performance ⁵ on the part of Atty. Hopkins, there is no showing of any prejudice to the petitioner therefrom.

Accordingly, the Petition for a Writ of Habeas Corpus is denied.

S.T. Fuger, Jr., Judge

FOOTNOTES

FN1. This petition was initially filed in the Judicial District of Danbury.   On August 25, 2005, the matter was transferred to the Judicial District of Tolland at Somers.   The petition was amended on May 25, 2009 and for the final time on July 31, 2009..  FN1. This petition was initially filed in the Judicial District of Danbury.   On August 25, 2005, the matter was transferred to the Judicial District of Tolland at Somers.   The petition was amended on May 25, 2009 and for the final time on July 31, 2009.

FN2. Mr. Smalls is incarcerated by the state of Connecticut and testified by way of fiber optic video-conference..  FN2. Mr. Smalls is incarcerated by the state of Connecticut and testified by way of fiber optic video-conference.

FN3. The Court denied all of the remainder of the petition on the grounds of:  procedural default, clear lack of evidence, or abandonment of the claims by the petitioner in the trial of the petition..  FN3. The Court denied all of the remainder of the petition on the grounds of:  procedural default, clear lack of evidence, or abandonment of the claims by the petitioner in the trial of the petition.

FN4. Of course, even though a habeas court is to give great deference to strategic and tactical decisions of trial defense counsel, such decisions must meet an objective standard of reasonableness, “it does not follow necessarily that, in every instance, trial counsel's strategy concerning these decisions is sound.”   See Bryant v. Commissioner of Correction, 290 Conn. 502 at 521 (2009)..  FN4. Of course, even though a habeas court is to give great deference to strategic and tactical decisions of trial defense counsel, such decisions must meet an objective standard of reasonableness, “it does not follow necessarily that, in every instance, trial counsel's strategy concerning these decisions is sound.”   See Bryant v. Commissioner of Correction, 290 Conn. 502 at 521 (2009).

FN5. Moreover, there was a legitimate reason why Atty. Hopkins would not object to such hearsay evidence as it did permit him to argue a prior inconsistent statement on the part of Vernon and therefore attempt to undermine his credibility.   This decision is a sound tactical basis for not objecting, thereby rendering the fact that he did not so do as no basis upon which to conclude there was deficient performance..  FN5. Moreover, there was a legitimate reason why Atty. Hopkins would not object to such hearsay evidence as it did permit him to argue a prior inconsistent statement on the part of Vernon and therefore attempt to undermine his credibility.   This decision is a sound tactical basis for not objecting, thereby rendering the fact that he did not so do as no basis upon which to conclude there was deficient performance.

Fuger, S.T., J.