Terrell Jackson v. Warden (2010)

MEMORANDUM OF DECISION

The petitioner has filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of counsel by his trial and appellate counsel.   A hearing was held on June 11, and September 3, 2009 and the parties filed post-trial briefs.¹  At the hearing the court heard testimony from the petitioner, his former trial counsel Jonathan Demirjian, his former appellate counsel Kent Drager and Attorney Thomas Farver.   Petitioner also offered eight exhibits, which included the trial transcripts, both parties' briefs to the Connecticut Supreme Court and the court's decision.   It is noted at the outset that the court read the complete trial transcript so that the claims directed at trial counsel were examined in detail.   Moreover, the court read the briefs and appellate decision of the trial, and the claims directed at appellate counsel were fully examined.

The petitioner was convicted after a jury trial of murder, in violation of General Statutes § 53a-54a(a).   He was sentenced on January 8, 1999 to a term of imprisonment of fifty years.

The petitioner's conviction was upheld;  State v. Jackson, 257 Conn. 198 (2001).

STANDARD OF REVIEW

The law governing the standard of proof for establishing ineffective assistance of counsel is well-established.

In Strickland v. Washington, 466 U.S. 668, 687 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel.   In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.  “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.”   Id., 689.

Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims.

The right of a defendant to effective assistance is not, however, the right to perfect representation.  State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977);  Chace v. Bronson, 19 Conn.App. 674, 678, 564 A.2d 303 (1989) ․ He must also show ‘that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.’   Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986).   The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance.  Levine v. Manson, [195 Conn. 636], 640 [1986];  Chace v. Bronson, supra, 678.   The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight.  Levine v. Manson, supra.   Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different.   Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989).

Williams v. Bronson, 21 Conn.App. 260, 263 (1990).

As to the credibility of the witnesses who appear at the trial, our appellate court has said that it “ ․ does not retry the case or evaluate the credibility of the witnesses ․ Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude ․ The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.”  (Citation omitted;  internal quotation marks omitted.)  Dwyer v. Commissioner of Correction, supra, 69 Conn.App. 561-62.

Finally, our courts have repeatedly stated that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  (Internal quotation marks omitted.)  Henderson v. Commissioner of Correction, 104 Conn.App. 557, 572 (2007), cert. denied, 285 Conn. 911 (2008).   Strategic or tactical choices of counsel are not subject to challenge.  Strickland v. Washington, supra, 689.   To prove deficient performance, the petitioner must show that defense counsel's representation “fell below an objective standard of reasonableness ․” Duperry v. Solnit, 261 Conn. 309, 335 (2002).

The standards of review for appellate counsel are similar.   The petitioner must show a reasonable probability that, but for his counsel's error, he would have prevailed on his appeal.  Small v. Commissioner of Correction, 286 Conn. 707, 729 (2008).

The petitioner's claims must be evaluated in light of these standards.

DISCUSSION

The court finds the following facts to be proven by a preponderance of the evidence.   The petitioner was charged with murder in late 1997 and Attorney Demirjian was appointed as his attorney subsequent to the transfer to the Part A court and prior to the scheduled hearing in probable cause.   At the time he began to represent petitioner, Demirjian had been a public defender in Bridgeport since October 1987.   He first represented clients in the geographical area court and then in the judicial district court starting in 1993/94.   During that time leading up to his representation of the petitioner, he tried approximately 35 cases.   In his career up to the point of the habeas trial, Demirjian testified that he tried approximately 70 cases and handled thousands more.

Demirjian and the petitioner met at the Main Street courthouse in Bridgeport for the majority of their interactions;  both Demirjian and petitioner recalled an occasion that counsel met with petitioner at the location where petitioner was incarcerated.   Petitioner recalled reviewing witness statements with Demirjian, and giving him information regarding his alibi for the time of the shooting.   Petitioner also recalled that the state's pretrial offer to resolve the case was thirty-five years incarceration and that he did not want to accept that offer.   Other facts will be discussed as necessary as they pertain to the individual claims raised.

Claims Against Trial Counsel

A) Pretrial Investigation

The petitioner first claims that trial counsel failed to conduct an “adequate pretrial investigation of facts and witnesses in support of the state's case and the petitioner's defenses.”   He also claims that counsel failed to fully and properly investigate the strengths and weaknesses of the case from both the prosecution and defense standpoint.   On this point, petitioner relies on the American Bar Association standards for Criminal Justice regarding the duty to investigate, as quoted in Judge Corradino's opinion in Griffin v. Commissioner of Correction, No. CV-00-440712, New Haven superior court (2/17/05).   As Judge Corradino noted in this regard, “․ with ineffective assistance claims in general, where such claims are based on inadequate investigation it is also true that:  ‘[t]he issue, therefore, is not what counsel should have done to constitute the proper representation of the defendant considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time, the defendant received effective assistance of counsel.”  Gentry v. Warden, 167 Conn. 639, 647 (1975);  Suite v. Ralls, 167 Conn. 408, 432 (1974).   On the other hand although it is true that a heavy measure of deference must be given to defense counsel's decisions:  ‘This measure of deference ․ must not be watered down into a disguised form of acquiescence.’  Profitt v. Waldron, 831 F.2d 1245, 1248 (5th Cir.1987).”

Both the petitioner and Attorney Demirjian testified about the pretrial investigation and preparation of the case.   Demirjian credibly testified as to the investigation that he undertook on petitioner's case, while petitioner's recall was vague.   Demirjian testified that the investigation undertaken was done in light of the evidence possessed by the state, which he possessed, as well as the information provided to him by petitioner during their conversations.   The evidence presented against the petitioner at his criminal trial is found in the decision of the Connecticut Supreme Court, 257 Conn. 198, 200-04 (2001).   In sum, the petitioner and the victim were playing cards on the porch of a house in Bridgeport when an altercation ensued and the petitioner fired four shots at the victim, killing him.   There was no “eyewitness” testimony as to the shooting, but witnesses testified as to hearing the victim use the petitioner's nickname “Nugget” and plead with him to either “don't shoot me” or “stop, I'm hit.”   Two witnesses saw the petitioner with a gun in his hand at the time the shots were fired, and a third witness testified that the petitioner called his house the day after the shooting to inquire whether anyone was talking to the police.   The state also offered into evidence letters that had been intercepted by the department of corrections.   These letters were addressed to friends and relatives of the petitioner and according to the state's theory, “written to deter, threaten and frighten key witnesses from testifying against petitioner.”  Id. It was undisputed at trial that the petitioner was the source of the letters, although another inmate copied the text for petitioner.   The petitioner testified at his trial and claimed that another man was responsible for the murder, although that testimony conflicted with the written statement he gave to the police wherein he claimed he was in another area of Bridgeport selling drugs.

At his habeas trial, the petitioner testified that Demirjian failed to show him any police or forensic reports, although he admitted reviewing witness statements.   He claims he was not asked his opinion on the case nor had any discussion with his attorney about the case whatsoever.   Finally, petitioner testified that it was not his decision to testify, but Demirjian's.   The court finds that the petitioner is not credible.   The evidence presented demonstrates that the petitioner is a convicted felon, with additional convictions for larceny.   The court may properly take those into consideration in assessing his testimony.   The petitioner's interest in the outcome of his habeas trial is also weighed heavily by the court in assessing his credibility.   Finally, in considering all the evidence presented at trial, petitioner's testimony cannot be reconciled with the credible testimony given by Demirjian.   Demirjian testified that the problems in the case were that witnesses that knew petitioner put him at the scene both before and after the shooting, and in possession of a handgun, as well as the intercepted letters.   Demirjian had an investigator who examined the statement of the witness Tia Perry, the sister of the petitioner's girlfriend.   Perry testified at the trial that she had just arrived home from work and while in her apartment heard the shots and the victim say “Stop, Nugget I'm hit.”   The investigator examined Perry's ability to hear from her vantage point.   The evidence shows that Demirjian did an adequate investigation into the facts of the case, including its strengths and weaknesses from both the prosecution and defense viewpoints.   The burden is on petitioner to show that counsel was ineffective;  that he has not done.

B) Discussions with Petitioner

Petitioner next alleges that his trial counsel essentially failed to meaningfully explain the state's plea offer, the likely outcome of the trial, and ability to appeal a conviction.   The petitioner and Demirjian testified in opposition to the other on this point.   The court does not find petitioner's testimony that his counsel did not discuss with him any of these subjects to be credible.   The petitioner, a convicted felon at the time he was charged with murder, was no novice to the criminal justice system.   To believe that he would have proceeded to trial without having any discussions with his attorney about the case, the plea offer or the likely outcome defies common sense.   Demirjian did not have a specific recollection of his discussions with petitioner, owing to the fact that ten years had passed since the trial and there were no notes in his file.   He testified, however that his practice in every case is to explain to his client the plea offer, the range of possible sentences and the pros and cons of a hearing in probable cause.   In petitioner's case, Demirjian did not believe that he acted outside of his customary practice in discussions with clients.   In fact, the petitioner testified that he knew he was offered thirty-five years incarceration by the state and that he did not want it.   Clearly, there were discussions between counsel and client.   The court finds that the burden of showing ineffective assistance in the context of discussions has not been met.

C) “Earwitness” Expert Testimony

The next claim is that trial counsel was ineffective for failing to call an “earwitness” expert to testify at trial.   In his brief, petitioner offers no support for the existence of such a witness but rather claims that such an expert would offer testimony of the fallibility of “earwitnesses.”   Trial transcripts show that Tia Perry, a state's witness, was cross-examined regarding her position at the time she heard the victim.   Latasha Gardner was called as a witness for the defense.   Any “fallibility” issues in their testimony regarding what they heard were examined.   There was no evidence to show that an expert witness on “hearing” existed, what the testimony would have been or that it would have made a difference in the outcome of the trial.  “To prevail on a petition for a writ of habeas corpus, mere conjecture does not suffice.”  Miller v. Commissioner of Correction, 116 Conn.App. 357, 365 (2009) citing Ostolaza v. Warden, 26 Conn.App. 758, 765, cert. denied, 222 Conn. 906 (1992).  “The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.”  (Internal quotation marks omitted.)   State v. Morant, 117 Conn.App. 279, 303 (2009), quoting Tatum v. Commissioner of Correction, 66 Conn.App. 61, 66, cert. denied, 258 Conn. 937 (2001).   The petitioner has failed to present an evidentiary basis for his claim that counsel rendered deficient performance.

D) Late Disclosure of witness Marshall Robinson

In this claim, petitioner attempts to equate the failure of trial counsel to inquire as to the jury's knowledge of a witness whose name was not disclosed during voir dire to a juror misconduct claim.   The facts surrounding this allegation stem from the state's failure to introduce the name of a witness, Marshall Robinson, to the jury during voir dire.   From this, petitioner claims that Demirjian's failure to inquire of the jury as to any potential knowledge of Robinson resulted in a situation that might have impacted on their credibility determination of this witness.   Demirjian testified that, in his experience, if a juror knew a witness, the juror would bring it to the court's attention.   In this case, the transcript discloses that during the course of the trial, no juror indicated that he or she knew Mr. Robinson.   The record also discloses that on November 30, 1998, one juror was excused for her knowledge of a witness in the case, which the juror brought to the attention of the court.   Clearly, the jury knew that it could bring information to the court's attention.   Notwithstanding the fact that no problem was identified during the course of the trial, this claim fails due to its speculative nature and lack of evidence.   This court does not rule on what might have affected petitioner's trial, but what did in fact affect petitioner's trial.   Petitioner has not shown that Demirjian's failure to inquire of the jury fell below the standard of reasonableness.   This claim must also fail.

E) Handwriting Expert/Firearms Expert

Petitioner here claims that counsel was ineffective by failing to obtain certain experts at trial.   The court shall address them separately.   First, petitioner alleges that counsel should have obtained a handwriting expert on the issue of the intercepted letters.   This claim fails in light of petitioner's own testimony at his criminal and habeas trials.   Petitioner admitted that he authored the original letters, but that another inmate copied the letters for him.   Based on that testimony, it is difficult to say what need there is for a handwriting expert.   Counsel was not ineffective in deciding not to present a handwriting expert.

Similarly, petitioner makes no argument as to the ineffectiveness of Demirjian's decision not to call a firearms expert.   Petitioner testified at his criminal trial that a third party killed the victim.   He did not dispute that the victim was shot to death.   Of what relevance would have been a firearms expert?   The petitioner does not say.   Again, this court will not decide effectiveness or ineffectiveness of an attorney on speculation, but on evidence.   See Miller v. Commissioner, supra.   As previously cited, “[t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.”   Morant v. Commissioner of Correction, supra, 303.   The petitioner has failed to show how the failure to call either expert fell below the standard of reasonableness.

F) Cross-Examination of States' Witnesses

Petitioner takes issue with his counsel's cross-examination of Ms. Perry and Ms. Gardner, both of whom heard the victim use petitioner's name while imploring petitioner not shoot him.   It should again be noted that Gardner was called by the defense at the criminal trial;  there was no “cross-examination” of her by Demirjian.   While petitioner may have liked his trial counsel to have cross-examined Ms. Perry in a different manner, or emphasized other points, this court will not, in hindsight, second-guess counsel's trial strategy.   See Watson v. Commissioner, 111 Conn.App. 160, 172 (2008).

G) Motion in Limine

Petitioner's final claim against trial counsel is that he failed to “properly/adequately” argue the motion in limine regarding the letters intercepted by the department of corrections.   The record reveals that the court, Thim, J. held a motion in limine on November 18, 1998.   That motion was filed by Demirjian.   At the hearing, the state alerted the court that it was seeking to admit five of the ten letters that had been intercepted.   On December 1, 1998, the court heard detailed argument from both the state and Demirjian as to the admissibility of the letters.   The court ruled that the letters were admissible.   Tr. 12/1/98 pp. 55-57.   The transcript clearly shows that Demirjian made numerous arguments attacking the admissibility of the letters.  Id., pp. 46-53.   The court ruled against petitioner.   He points to no evidence to support his claim in this regard, nor has he presented any at his habeas trial.   This claim fails.

Claims against Appellate Counsel

The petitioner has also raised two claims of ineffective assistance against his appellate counsel, Attorney Kent Drager.   The evidence presented at trial established that subsequent to his conviction of murder, the petitioner filed an appeal and Attorney Drager was assigned to represent him.   Drager testified that he had been an attorney with the office of Appellate Unit of the Chief Public Defender's Office since 1985.   Drager testified as to his actions in petitioner's case, and the issues that he raised on appeal.

A) Motion in Limine

The petitioner here argues that Drager failed to raise the court's admission of the intercepted letters as an issue on appeal.   The argument is without merit.   While Drager acknowledged that he did not raise the court's ruling on the motion in limine on appeal, he credibly testified that he considered the issue, carefully examined it and concluded the issue was not meritorious, based upon petitioner's testimony at his criminal trial.   Drager testified that he looks carefully at every appeal he is assigned and examines it for possible appeal issues.   His experience in this regard was not disputed by petitioner, nor did petitioner present any evidence that Drager's representation was ineffective by not raising this issue.

B) Late Disclosure of witness Marshall Robinson

This final issue is similar to the issue raised against trial counsel;  namely, that the state's failure to disclose Robinson's name during voir dire resulted in possible harm to the petitioner during trial and Drager's failure to raise this on appeal continued that harm.   Petitioner alleges that this issue is of “constitutional magnitude” and was therefore reviewable under Golding analysis.  State v. Golding, 213 Conn. 233, 239-40 (1989).   Petitioner fails to offer any analysis as to this claim:  why the issue is of constitutional magnitude;  how Drager was ineffective;  what different outcome would have occurred had he raised the issue on appeal.   At the habeas trial, Drager credibly testified that on this issue, there was no record for him to review in order to determine if the failure to disclose Robinson's name during voir dire had an effect on the jury.   Without any analysis, the body of evidence presented does not permit a finding of appellate counsel ineffectiveness.

CONCLUSION

The burden that petitioner must meet is that counsel's performance was deficient and that, had it not been for counsel's ineffectiveness, there is a reasonable probability that the outcome of his trial or his appeal would have been different.   The petitioner cannot meet this high burden.   Nothing about either attorney Demirjian or Drager's performance fell below the objective standard of reasonableness.   Neither counsel's representation of petitioner was deficient under the standards of law.   Accordingly, there is no reason for this court to consider where there is a reasonable probability that the outcome would have been different.   The amended petition for a writ of habeas corpus is DENIED.

Maureen M. Keegan, J.

FOOTNOTES

FN1. The petitioner's post-trial brief did not address two of the claims raised in the amended petition;  the court therefore considers them abandoned.   See Raynor v. Commissioner of Correction, 117 Conn.App. 788, 797 (2009)..  FN1. The petitioner's post-trial brief did not address two of the claims raised in the amended petition;  the court therefore considers them abandoned.   See Raynor v. Commissioner of Correction, 117 Conn.App. 788, 797 (2009).

Keegan, Maureen M., J.