245866 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

The petitioner, Antonio Barnes, alleges in his amended petition for a writ of habeas corpus, filed on October 27, 2009 that he was denied the effective assistance of counsel at the trial of his criminal case, docket number CR03-120445, in violation of both the United States and Connecticut Constitutions.¹  He asserts that the judgment of conviction in that case should be vacated and the matter be remanded to the trial court for further proceedings.

The petitioner's claim of ineffective assistance of counsel is that trial counsel failed to conduct sufficient investigation by failing to have the petitioner evaluated by a psychiatrist prior to trial and then failing to present to the jury evidence from the psychiatrist which the petitioner now claims would have shown that he was either intoxicated or suffered from a mental defect that would have negated the requisite mens rea for the most serious crime of which he was convicted.

The matter came to trial before the court on December 10, 2009.   The court heard testimony from trial defense counsel, Attorney Mark Hauslaib, and Donald (Grayson, M.D., an expert in forensic psychiatry.   The petitioner did not testify.   Among the exhibits received by the court were:  a) the transcripts of the petitioner's trial (Pet.Ex. 6-15);  b) a transcript of a hearing on the petitioner's motion to modify bond in the underlying criminal case (Pet.Ex. 3);  c) a transcript of a hearing on a violation of probation proceeding that predated the petitioner's trial in the criminal case at issue here (Pet.Ex. 5);  d) counseling reports and records for the petitioner from Integrated Behavioral Health, Inc. (“IBE”) and AIC-New London for the period of September 2001 to July 2003 (Pet.Ex. 2);  and e) the October 20, 2009 report of Dr. Grayson following his interview of the petitioner in July 2009 (Pet.Ex. 1).

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 criminal case, docket number CR03-120021, in the Judicial District of Windham, in which he was charged with assault in the third degree, burglary in the third degree and breach of peace in the second degree in connection with an incident that occurred on or about August 3, 2003.

2. While that case was pending the petitioner was arrested and charged with attempt to commit assault in the first degree, reckless endangerment in the first degree, criminal possession of a firearm and violation of a protective order in docket number CR03-120445, also in the Judicial District of Windham, in connection with an incident that occurred on or about September 3-4, 2003.

3. The petitioner was represented at the trial court level in both matters by Attorney Mark Hauslaib.

4. Both matters were tried together to a jury, and on October 6, 2004 the petitioner was found guilty on all charges.   As stated by the Appellate Court, the jury panel could reasonably have found the following facts to be true regarding the underlying offenses in docket number 120445:  “On September 3, 2003, the defendant borrowed a gray Toyota Camry from his girlfriend, Melissa Cahoon, and left at 7:30 p.m. from her house in Hope Valley, Rhode Island, which is approximately one hour by car from Danielson.   At approximately 9 p.m., the defendant telephoned George Mudge.   According to George Mudge, the defendant was very irate and screaming that he wanted to know the whereabouts of Tammy Barnes.   George Mudge informed the defendant that Tammy Barnes was not at his residence, despite the fact that she was.   The defendant telephoned George Mudge again and was again irate and looking for Tammy Barnes.   During this telephone conversation, the defendant threatened Tammy Barnes, stating:  “I'll split her wig.   I'm crazy, I don't care about the police.   They'll have to take me dead.”   The defendant telephoned George Mudge three or four more times that night, swearing and accusing Tammy Barnes of marital infidelity.   At some point, George Mudge telephoned the defendant to tell him to stop calling.

5. “In the early morning hours of September 4, 2003, at approximately 1 or 2 a.m., Timothy Marcotte, Tammy Barnes' brother, heard knocking on the first floor bedroom window of his home on 75 Prospect Street in Danielson.   Marcotte opened the window shades and discovered the defendant outside his window wearing a New York Yankees jacket.   Through the closed window, the defendant asked Marcotte if Tammy Barnes was inside.   Tammy Barnes had lived at 75 Prospect Street with Marcotte for approximately two months in early 2003.   When she lived at the residence, she stayed in a bedroom on the second floor and had stayed in that bedroom five or six times with the defendant.   When Marcotte told the defendant that she was not there, a loud verbal disagreement ensued in which the defendant accused Marcotte of lying, claiming that he believed Tammy Barnes was upstairs in her bedroom.   The defendant continued arguing with Marcotte until Marcotte told the defendant that he was coming outside.   Marcotte began walking toward the kitchen and heard what sounded to him like rocks being thrown against his residence and a window breaking.   Marcotte telephoned the police and went outside but did not see anyone.   Thereafter, state police Trooper Eric Leroux arrived at Marcotte's residence in response to what Leroux testified was a telephone call from Marcotte reporting that gunshots had been fired near his residence.   Leroux and Marcotte walked to the rear of the residence where the noises had been heard and discovered bullet holes in the side of the house, as well as a broken window.   Leroux explained to Marcotte that it was not rocks but bullets that he had heard.   Leroux and Marcotte also observed damage inside the house, specifically bullet holes in the upstairs bedroom where Tammy Barnes and the defendant previously had stayed as well as another in the kitchen.   Marcotte testified that the bullet holes were not present the day before.

6. “Dawn Sears, a neighbor of Marcotte's, residing at 83 Prospect Street, was awakened at 2 a.m. by loud male voices arguing on the right side of her residence.   Sears next heard four or five gunshots approximately ten to fifteen seconds after she heard the argument.   She looked outside her bedroom window and saw a man wearing baggy clothing running along Prospect Street away from the noises, toward Williams Street.   Sears lost sight of the individual, but heard a car door open and shut and a vehicle's engine start.   Mark Tyler, another neighbor of Marcotte who lived at 102 Prospect Street located on the corner of Prospect Street and Williams Street, also awoke at approximately 2 a.m. when he heard four or five gunshots.   Tyler looked out a window and noticed an extra car parked on Prospect Street in front of his house, which he described as a light blue or gray Nissan Sentra or a small compact car of some type.   Tyler then saw someone running along the street toward his house.   He heard a car door open and saw something being tossed onto the passenger seat.

7. “The defendant returned to Cahoon's house between 3 and 3:30 that morning and went to bed.   Cahoon noticed that the defendant was wearing a New York Yankees jacket when he returned to her house.   On September 4, 2003, the defendant was arrested by Rhode Island state police.   Detective Terrence McFadden later investigated Marcotte's residence and found in the backyard seven spent shell casings, which were all fired from the same .45 caliber semiautomatic firearm.”

8. At trial, the petitioner argued that the state had not produced sufficient evidence of his guilt in docket number 120445.   He pointed out that no eyewitness saw him fire the shots in question.   He also relied on the fact that the police never found the gun that fired the shots, could not place it in his hands and found no gunshot residue on his person.

9. The jury disagreed, and found the defendant guilty of each count in docket number 120445, including attempt to commit assault in the first degree.   The court sentenced the petitioner to 15 years of incarceration followed by five years of special parole on that charge and lesser periods of incarceration on each of the other three charges in that docket, all to run concurrently, for a total effective sentence of 15 years of incarceration followed by five years of special parole.

10. The petitioner appealed his conviction to the Appellate Court and was represented on that appeal by Attorney Arthur L. Ledford.

11. As it related to docket number 120445, the petitioner claimed on appeal that “the evidence was insufficient to convict him of attempt to commit assault in the first degree in that the state failed to prove beyond a reasonable doubt that he was at the crime scene and discharged a firearm.”  State v. Barnes, 99 Conn.App. 203, 205, 913 A.2d 460, cert. denied, 281 Conn. 921, 918 A.2d 272 (2007).   He also claimed “that his sixth amendment rights were violated when the trial court failed to investigate adequately a potential conflict that he did not waive.”  Id. The Appellate Court affirmed the petitioner's conviction and the Supreme Court denied his petition for certification.

12. As noted above, the petitioner's sole claim in this matter is that Attorney Hauslaib failed to have the petitioner examined by a psychiatrist prior to trial.   The petitioner claims that had such an examination occurred it would have revealed that the petitioner was either intoxicated or suffered from a mental defect that prevented him from possessing the requisite mental state to be guilty of attempt to commit assault in the first degree.

13. Attorney Hauslaib testified that in his conversations with the petitioner prior to trial he had no reason to question the petitioner's mental state on the night in question.   In fact, he testified that the petitioner steadfastly denied committing the crimes charged in docket number 120445.   He further testified that the petitioner never told him that he had any difficulty remembering what happened that night, and never claimed to have blacked out during any of the relevant times.   He also testified that he had both a paralegal and private investigator conduct inquiries prior to trial.   As part of these inquiries, Attorney Hauslaib and/or his associates interviewed the woman the petitioner was living with and returned to after the incident.   She said nothing to indicate that the petitioner was either intoxicated or not in his right mind on the night in question.

14. Attorney Hauslaib further testified that the petitioner participated in discussions regarding trial strategy and was adamant that he did not commit the crimes charged.   It was for this reason that Attorney Hauslaib and the petitioner pursued the strategy they did at trial of calling into question the state's ability to link the petitioner to the crimes charged.

15. Despite his testimony, there is evidence that Attorney Hauslaib had some reason to question the petitioner's mental health at the time of the crimes.   At a hearing on the petitioner's motion to modify bond on August 23, 2004, Attorney Hauslaib told the court, “I think my client does have significant mental health issues.   He has very little recollection of the facts that occurred in one of these cases where the allegations [sic] is that shots were fired.   I think perhaps there was a black out of some time.”   Pet. Ex. 3, pp. 3-4.   While Attorney Hauslaib raised mental health issues at the bond hearing, he never suggested that the petitioner was intoxicated or had a problem with alcohol.

16. There was no evidence presented that the petitioner ever told Attorney Hauslaib that he was drinking on the night of the crimes or that he told Attorney Hauslaib that he was intoxicated.   Nor is there any evidence that Attorney Hauslaib should have independently known or suspected that the petitioner was intoxicated when the crimes were committed.   Nor was there any evidence that the petitioner ever told Attorney Hauslaib that he had a problem with alcohol.

17. The petitioner's counseling records from 1991-1993 show a number of psychological concerns, including suicidal thoughts, treated with both Zoloft and Paxil.   The records also show significant amounts of admitted marijuana use.   By contrast, there is virtually no mention of alcohol use in the records.   Pet. Ex. 2.

18. In or about early July 2009, in connection with this petition, the petitioner's counsel retained Dr. Donald Grayson to conduct a mental health evaluation of the petitioner.   Dr. Grayson met with the petitioner on two occasions-July 23, 2009 and August 13, 2009.   Each meeting lasted approximately two hours.

19. The only information that Dr. Grayson used to prepare his October 20, 2009 report (Pet.Ex. 1) were his “formal mental status examination” of the petitioner and the history the petitioner provided to Dr. Grayson during their meetings.   Based on that information Dr. Grayson observed that his examination “revealed no current gross clinical evidence suggestive of psychosis, organic brain disease, significant depression, mania, hypomania, significant anxiety or poorly controlled anger.”   Pet. Ex. 1, p. 8. Nevertheless, based on the petitioner's recounting of his history, Dr. Grayson concluded that “diagnostically, seemingly Antonio Barnes can be classified as [having] Major Depressive Disorder, Recurrent, without psychosis mildly severe at this point.”  Id., p. 10.   Dr. Grayson also concluded that it was seemingly appropriate to diagnose the petitioner with alcohol and cannabis dependency, oppositional defiant disorder, attention deficit hyperactivity disorder, and antisocial personality disorder.   Again, these diagnoses were based solely on the petitioner's account of his personal history.

20. Shortly before trial, Dr. Grayson reviewed Pet. Ex. 2. According to Dr. Grayson's testimony, the information contained in this exhibit was largely consistent with the personal history the petitioner had provided to Dr. Grayson during his interview.   One exception though was the petitioner's claims to Dr. Grayson regarding his use of alcohol.   Dr. Grayson acknowledged at trial that Pet. Ex. 2 does not contain much discussion regarding the petitioner's use of alcohol.   By contrast, during his interviews with Dr. Grayson the petitioner told Dr. Grayson that he started drinking heavily in his mid-20s and that continued until his incarceration in 2003.   Pet. Ex. 1, p. 10.   The petitioner also reported to Dr. Grayson a history of blackouts and violent behavior when drunk.  Id. In particular, he told Dr. Grayson that on the night of the crimes in question he was drinking heavily, blacked out and has no memory of the incident.  Id.

21. Dr. Grayson testified at trial that if what the petitioner said about his history is true, then in Dr. Grayson's opinion on the night of the crimes in question the petitioner was upset about the things going on in his life and, as a result, drank heavily.   His drinking could have caused him to black out and could have impaired his judgment and impulse control.²

22. Dr. Grayson admitted that his opinion was based solely on what the petitioner reported to him.   He acknowledged that he had no verification or corroboration of the petitioner's alcohol use from any other source.

23. Dr. Grayson did not opine that any other mental health issue had any impact on the petitioner's mental state on the night in question.   According to Dr. Grayson, the primary issue that impacted the petitioner's judgment and impulse control was his claimed intoxication.

DISCUSSION

To succeed in his bid for a writ of habeas corpus, the petitioner must prove that his trial counsel was ineffective.  “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient ․ Second, the defendant must show that the deficient performance prejudiced the defense ․ 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 v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984) ․” (Internal citations and quotation marks omitted.)  Denby v. Commissioner of Correction, 66 Conn.App. 809, 8 12-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness ․ In Strickland, the United States Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a petitioner 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 ․ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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;  that is, the petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment ․” Henderson v. Commissioner of Correction, 80 Conn.App. 499, 504-05, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).

“The Constitution guarantees criminal defendants only a fair trial and a competent attorney.   It does not insure that defense counsel will recognize and raise every conceivable constitutional claim.   The petitioner is also not guaranteed assistance of an attorney who will make no mistakes ․ What constitutes effective assistance of counsel is not and cannot be fixed with yard-stick precision, but varies according to the unique circumstances of each representation ․” (Internal citations and quotation marks omitted.)  Id., at 505.

When the claim is that trial counsel failed to conduct an adequate investigation, the analysis is no different.  “Strategic choices made after thorough investigation of Law and facts relevant to plausible options are virtually unchallengeable;  and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.   In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.   In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.”  Strickand, supra, 466 U.S., 690-91.

In exercising his judgment as to the amount of investigation necessary defense counsel, is entitled to rely on information provided to him by the client.   “Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.   In particular, what investigation decisions are reasonable depends critically on such information.”  Id., 691.   Consequently, “inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.”  Id.

In the present matter, the petitioner alleges that Attorney Hauslaib failed to conduct a sufficient investigation by not having a mental health evaluation done of the petitioner.   In support of this claim, the petitioner argues that when his habeas counsel did have such a mental examination performed it revealed that the petitioner was intoxicated on the night in question, and that that intoxication could have impaired the petitioner's judgment and impulse control.   The petitioner thus claims that if Attorney Hauslaib had done what current counsel did, Attorney Hauslaib would have known about the petitioner's intoxicated state and could have raised it as a defense to the mens rea element of the attempt to commit assault in the first degree charge.

The problem with this argument is that there is virtually no evidence that would have led Attorney Hauslaib to believe in 2003 that the petitioner might have been intoxicated on the night of the crimes.   Attorney Hauslaib testified that the petitioner never claimed to be intoxicated and never claimed that he could not remember part of the night.   In addition, the woman with whom the petitioner was living, Melissa Cahoon never said anything to Attorney Hauslaib, his investigator or paralegal about the petitioner being intoxicated that night.

Instead, the only evidence presented to the court was that the petitioner at all times adamantly denied to Attorney Hauslaib that he had anything to do with the crimes.   There was no reason for Attorney Hauslaib to investigate whether the petitioner was intoxicated when he committed the crimes because the petitioner repeatedly told Attorney Hauslaib that he did not commit the crimes.

The only evidence to the contrary was the statements Attorney Hauslaib made to the court at the petitioner's bond hearing.   It is true that Attorney Hauslaib said that he told the court that he thought the petitioner had “significant mental health issues,” had “very little recollection of the facts,” and there was perhaps a “blackout of some time.”   Pet. Ex. 3. However, the petitioner never offered any evidence as to the basis for Attorney Hauslaib's statements and whether they were based on anything the petitioner told him.   Instead, the only evidence regarding what the petitioner told Attorney Hauslaib was that the petitioner denied committing the crimes.   Furthermore, Attorney Hauslaib's statement regarding mental health issues bears no relationship to the issue of intoxication, which is the linchpin of Dr. Grayson's testimony.   Finally, the petitioner's counseling records reflect no issues of alcohol use or dependency prior to September 2003.   Pet. Ex. 2.

Also problematic is the petitioner's assumption that if he told Dr. Grayson in 2009 about his heavy use of alcohol he would have told a mental health professional the same information in 2003.   Presumably, in 2003 the petitioner would have told Attorney Hauslaib about his drinking to assist him in preparing a defense.   He did not.   Instead, he told Attorney Hauslaib that he did not commit the crimes.   There is no reason to believe that the petitioner would have told a mental health professional a different account of the events than what he told his attorney.   The petitioner chose a strategy in 2003 of denying any involvement with the crimes.   Taking a position then that he was drunk and blacked out would have been inconsistent with that strategy and in some ways would have undermined it.   Unhappy with the outcome that strategy produced, the petitioner cannot now discard it in favor of a claim of impaired judgment and impulse control due to intoxication.

Given the information the petitioner provided to Attorney Hauslaib and the strategy the petitioner chose to pursue, Attorney Hauslaib had no reason to believe that the petitioner was intoxicated on the night in question.   The petitioner has therefore failed to establish that Attorney Hauslaib had a duty to further investigate whether in fact the petitioner was intoxicated and how that might have affected his mental state.

The petition is DENIED.   Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.

BRIGHT, JUDGE

FOOTNOTES

FN1. The underlying trial also involved charges in another case, docket number CR03-120021.   The petitioner has made no claims in his amended petition regarding that case..  FN1. The underlying trial also involved charges in another case, docket number CR03-120021.   The petitioner has made no claims in his amended petition regarding that case.

FN2. Dr. Grayson also testified that the petitioner reported that around the time of the crimes the petitioner was heavily using marijuana as a form of self-medication.   However, according to Dr. Grayson, the petitioner said that he did not use any marijuana on the evening of the crimes, and Dr. Grayson did not opine that marijuana use had any impact on the petitioner's actions on the night in question..  FN2. Dr. Grayson also testified that the petitioner reported that around the time of the crimes the petitioner was heavily using marijuana as a form of self-medication.   However, according to Dr. Grayson, the petitioner said that he did not use any marijuana on the evening of the crimes, and Dr. Grayson did not opine that marijuana use had any impact on the petitioner's actions on the night in question.

Bright, William H., J.