Christopher Norton v. State Prison Warden (2010)

MEMORANDUM OF DECISION

HABEAS TRIAL

THE COURT:  The Court has reviewed the law and the evidence as it pertains to the claims that are made, and is prepared to make the following findings.

With regard to this claim, the Court finds that Mr. Norton is in the custody of the Commissioner of Corrections.   Prior to May 2006, the petitioner was charged with a number of offenses in the judicial district of New Britain at New Britain.   In Docket number CR05-0221953, the petitioner was represented by Public Defender Claude Chong.   Prior to May of '06 the petitioner was charged with one count of assault in the first degree, in violation of 53a-59(a)(1), attempt to commit murder, in violation of 53a-49 and 53a-54a, one count of carrying a pistol without a permit in violation of CT. General Statute Section 29-35 and a count of criminal possession of a firearm in violation of CT. General Statute Section 53a-217.   Upon appointment to represent Mr. Norton, this Court finds that Mr. Chong was an experienced public defender, having been so employed in the Judicial District of New Britain since 1998.   Mr. Chong received his undergraduate degree from the University of New Haven, where he obtained a Bachelor of Arts degree.   He attended the University of Connecticut School of Law and graduated from that institution in 1992.   Thereafter he was employed on a part-time basis as a public defender and then as a full time public defender at the GA Court in Hartford, presumably GA-14 at Lafayette Street.   It is clear that at the time Mr. Chong represented Mr. Norton he had approximately 7 years full time employment as a public defender, representing individuals accused of serious felonies and misdemeanor crimes.   He had represented hundreds of individuals in New Britain and elsewhere, in defense of criminal charges.   Mr. Chong was indeed experienced at defending charges including attempted murder, assault and the weapons and other charges which Mr. Norton faced, prior to Mr. Chong representing Mr. Norton.   There was in existence at the time in 2005 an open file policy with the Office of the State's Attorney, of which Mr. Chong took advantage.   Therein Mr. Chong obtained all reports and statements relevant to the prosecution in the matter of State v. Christopher Norton.   He obtained copies of the reports and provided same to his client.   He met with his client, indeed met with family members of Mr. Norton, including his mother, a current girlfriend and another family member.

This case arose from a shooting that occurred in New Britain, which eventually led into very serious injuries on the part of a 16-year old victim, including the male victim being rendered a quadriplegic, by virtue of an injury arising from a bullet wound to his spinal cord.   In the course of the police investigation it is clear that the petitioner provided a statement to police officers, which statement is in evidence as a full exhibit, Respondent's A, and Respondent's A is a 3-page typed statement prepared on New Britain Police Department stationary or form, if you will, which reflects the block type signature of the petitioner.   This particular statement was the subject of a motion to suppress, perhaps initiated by Mr. Norton, but eventually pursued by Mr. Chong.   After a lengthy hearing seeking to suppress the statement, Respondent's A, the Court apparently denied that motion to suppress.   At the time Mr. Chong represented Mr. Norton, Mr. Norton had some degree of education and certainly intellect and facility with English, which appears to be his primary language.   At the time of this trial Mr. Norton testified, as did his former counsel, Mr. Chong.   To Mr. Norton's credit, in his travels he obtained his high school equivalency GED, as well as one year of community college, and he is certainly intelligent with respect to understanding all aspects of this proceeding, assisting his counsel here, and also assisting his former trial counsel, Mr. Chong.   In addition to Respondent's A are a number of exhibits which are transcripts from certain of the underlying court dates in the matter of State v. Norton.   Included therein are Petitioner's 1 through 4. Firstly, Petitioner's 1, a transcript of proceedings on May 6, 2006, which the Court read in its entirety.   Petitioner's 2 is a transcript of the proceedings on June 2, 2006, which consists of 4 pages.   Again the Court read that in its entirety.   Petitioner's 3 is a transcript from proceedings in State v. Norton on July 31, 2006, which consists of 9-pages, which the Court read in full.   And lastly, Petitioner's 4 is a transcript of proceedings from the sentencing in the matter of State v. Christopher Norton on August 14, 2006.   That is an 8-page document which the Court read in its entirety.

Following the denial of the motion to suppress, the petitioner then had a change of plea and on May 9, just prior to the commencement of evidence, the petitioner, with the assistance of Mr. Chong, entered a plea of guilty to the following charges:  assault in the first degree and carrying a pistol without a permit.   The state's representative was State's Attorney Scott Murphy and the proceedings occurred before the Honorable Judge Patrick Clifford.   With respect to the plea agreement-I should say firstly, the Court in accepting the guilty plea, went through a thorough canvass of Mr. Norton in accordance with the practice book and CT. General Statutes and all aspects of the Connecticut and United States constitution.   Suffice to say, it was clear in colloquy in the transcript that Mr. Norton, on changing his not guilty plea to guilty, not only on the assault and carrying a pistol without a permit charges, but also admitting violation to 9 violations of probation.   It is clear that Judge Clifford effected a full and complete canvass and confirmed that Mr. Norton was clear of mind, uninfluenced by any medication or substances that might interfere with his ability to understand what was happening.   That the decision to plead guilty to both the assault charge and the pistol without a permit charge, and admit the violations of probation, were made knowingly, understandingly, with full and adequate assistance of counsel, and the Court so found.   Mr. Norton was asked specifically if he understood he was giving up his right to a trial, his right to examine witnesses, his right to cross examine witnesses, his right to present any defenses, and Mr. Norton responded in the affirmative that he did understand that.   He understood and was told the maximum sentences he could receive on each of the offenses.   It is clear from the record that Mr. Norton therefore entered his plea, as I said, knowingly and voluntarily.   There was a factual basis stated on the record by the state's attorney which can be summarized as follows.   Had the matter proceeded to trial, the state would have produced evidence to establish the following.   An event occurred on May 10, 2005, on Oak Street in the city of New Britain.   On that day the petitioner and his brother, Mr. Gaines, drove to Oak Street.   The state would have offered evidence to establish there was an argument with a Juan Carlos Soto. The petitioner had in his possession at some point a handgun.   He took out the handgun, pointed it at Mr. Soto, shot him from about 10-feet about the head.   Mr. Soto was taken to the hospital in critical condition.   As a result of the shooting Mr. Soto suffered serious physical injury, causing him to be a quadriplegic, unable to move below his neck.   Mr. Soto spent a number of days in the hospital on life support.   Thereafter he was transferred to New Britain Memorial Hospital, where he was at the time of the change of plea.   At the time of this event the state would have introduced evidence that Mr. Norton did not possess a lawful permit to carry a handgun, that the gun used was a pistol, the barrel of which was less than 10 inches long and the pistol was operable.

With regard to the violations of probation, it was read into the record that prior to the event giving rise to this conviction, Mr. Norton had been placed on approximately 9 different probations for various charges, many of which include sale of narcotics.   Mr. Norton had received a sentence of 10-years, suspended after serving 4 years in state's prison, with a 5-year period of probation, thus giving rise to a 6-year jail sentence in the unexecuted portion of these particular probations.   All of those sentences were to run concurrent.

So with respect to the attempted murder, assault charges, pistol without a permit and criminal possession of a firearm, and the violations of probation, Mr. Norton faced substantial incarceration.   Pursuant to the plea agreement, a sentence of 20-years was imposed by the Court on the charge of assault in the first degree.   A sentence of 2 years to serve was imposed on the carrying a pistol without a permit, that sentence to run consecutive to the sentence on the assault charge, for a total effective sentence of 22 years to serve.   The judgments on the violations of probations were reopened and his probation was terminated on the VOPs. Subsequent to the acceptance of the guilty plea, it is clear that the petitioner attempted to withdraw his plea of guilty in discussion with his attorney and the Court accredits Attorney Chong's recollection and testimony today in this regard, that Mr. Norton had a change of mind, so to speak.   Attorney Chong explained that a change of mind would not be sufficient to warrant withdrawal of the guilty plea.   It was suggested that another attorney be appointed for the purpose of the motion to withdraw the guilty plea and a second reason, and that was to explore the viability of any defense of self-defense.   The Court listened to the testimony of both witnesses and what is unavoidable to this Court and finder of fact, and with all due respect to Mr. Norton, the Court can consider prior felony history and certainly conviction of crimes, which as it was said goes to truth and veracity.   Here, as of the time of the change of plea, it is noted that he had some 14 serious convictions, many including narcotics sales, which form the basis of the probations he was on and subsequent violations of probation.   Also the possession of narcotics;  you had an escape.   But significantly, there were a number of larceny related offenses, including larceny in the third degree and larceny in the fourth degree, and I believe a third larceny offense.   It becomes difficult for the Court to accredit Mr. Norton's testimony in the wake of these convictions.   The Court has to juxtapose the testimony of the petitioner with certain testimony of his former attorney.   Here, with regard to what transpired, the Court accredits the testimony of the attorney with regard to when Mr. Norton brought up the issue of potential self-defense.   Mr. Chong testified credibly that it was clearly on the eve of trial when this issue was raised, to the point of prompting a recess of the proceedings following the change of plea, prior to sentence, for the purpose of at least another lawyer researching that issue, if indeed it was viable.   It's clear that both Mr. Norton and his former attorney had disagreements.   It's clear Mr. Norton at times wanted to discharge Mr. Chong.   It's clear also that Mr. Norton proceeded after proper and full inquiry by the Court whether he, Mr. Norton, was doing what he desired to be done, and not what others were potentially advising him to do.   And it's clear from the record and review of the transcripts, and also the testimony, that again Mr. Norton is an intelligent young man.   He was no less intelligent back in 2005 and 2006, that the decision to plead not guilty was his own and the decision to then plead guilty was his own.   It's clear from the transcript evidence, in particular the July 31, 2006 transcript, Petitioner's 3, that upon review by Mr. Cashman, it was Attorney Cashman's reasoned analysis that any defense of self-defense or defense of a third party would not likely prevail at trial.   Indeed the petitioner, through his counsel, Mr. McIntyre, in closing inasmuch conceded at best such a defense would be weak.   The record reflects, and this Court so finds, that on conclusion that the defense of self-defense would not likely be successful, and there being no other bases to succeed in the withdrawal of the plea, it was the decision of the petitioner to maintain his plea of guilty and the Court, Judge Clifford, questioned Mr. Norton in that regard, and that it was his decision that Mr. Norton would continue to plead guilty and proceed with sentencing in accordance with the plea agreement, the parameters of which the Court has already outlined.

With regard to the claims here, Mr. Norton is raising a claim of ineffective assistance of counsel, in particular Mr. Chong, in the amended petition dated February 24, 2009, and in the petition the petitioner claims that his trial attorney and the attorney he had through pre-trial discussion, Mr. Chong, was deficient in a number of ways.   Those particulars are outlined in paragraph 16 and the subparagraphs therein.   Before addressing these specific allegations, inasmuch as this is a claim of ineffective assistance of counsel, all the parties are guided by the case of Strickland v. Washington, of which both counsel are intimately familiar.   It is the burden of the petitioner to prove ineffective assistance of counsel and our United States Supreme Court in Strickland v. Washington developed the 2-prong analysis, essentially that in order for a petitioner claiming ineffective assistance of counsel to prevail, he must prove both deficient performance and prejudice.  Strickland is cited as 466 U.S. 668, 104 Supreme Court 2052, 1984.   See also Ledbetter v. Commissioner of Corrections, a Connecticut Supreme Court case at 275 Conn. 451, 2005, cert. denied by the United States Supreme Court, 546 U.S. 1187, 2006.   In order to prove deficient performance, a petitioner must show that defense counsel's representation fell below an objective standard of reasonableness.   Counsel is strongly presented to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.   To prove prejudice, the petitioner must establish there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different.   Here, with regard to claims of ineffective assistance of counsel arising from guilty pleas, the petitioner must show, in order to prove the prejudice prong, a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.   That's from Ricks v. Commissioner of Corrections, 98 Conn.App. 497, citing the language from Hill at pages 502, 504 in 2007.   Here the petitioner in paragraph 16 very succinctly alleges that his trial counsel in sub paragraph 16a refused or neglected to investigate witnesses put forth by the petitioner.   So the claim is essentially a claim of failure to investigate.   The petitioner, in order to prevail in such a claim, must show what benefit additional investigation would have revealed.   That's from Holley v. Commissioner of Corrections, 62 Conn.App. 170, 175, a 2009 Connecticut Appellate Court case.   With regard to any issue involving the failure of defense counsel to call a potential defense witness, it does not constitute ineffective assistance of counsel unless there is some showing his testimony would have been helpful in establishing the asserted defense.   That's from State v. Talton, 197 Conn. 280, 297, a 1985 decision of the Connecticut Supreme Court.   Here there seems to be concurrence in the testimony by both Mr. Norton and Mr. Chong, that Mr. Norton urged counsel to speak with certain family members and the Court accredits Mr. Chong's testimony that he met with the mother, current girlfriend and another family member.   The Court also credits Mr. Norton's testimony that it was Mr. Norton's desire to present such individuals, perhaps on the issue of character and whether Mr. Norton by habit or custom carried a firearm.   It is clear from both testimonies and the record that none of these individuals referenced were present at the time of the unfortunate shooting on Oak Street in New Britain, so none were fact witnesses so-called and unless Mr. Norton were to testify, it's questionable whether any evidence from any of these individuals would have been admissible.   With regard to any other witness, this Court can't speculate as to the identity of any witness, or the substance of what that witness might have said.   It is the responsibility of the petitioner, who is the former defendant, to provide information to his attorney that can lead to reasonable investigation and discovery.   This Court finds that no credible evidence was presented to petitioner's counsel, Mr. Chong, which if pursued further would have resulted in any witness, let alone any material witness, being investigated for purposes of trial preparation, the existence of which may have come into play on the whole issue of whether to decide to plead guilty and accept the plea agreement in accordance with the sentence imposed by Judge Clifford.   The Court accredits Attorney Chong's testimony that the petitioner contributed in part to apparent difficulty in the advance of his own defense.   According to Mr. Chong, Mr. Norton took at least 3 approaches in his defense;  firstly, that he was not present;  secondly, if present, there were 3 people in the car, including himself, his brother and a third person.   With respect to the third person, Mr. Norton was not able or unwilling to identify that third person.   It is clear also that the statement in evidence which Mr. Norton gave clearly puts him at the scene of the shooting, puts him in possession of the firearm, and does not give rise to any suggestion that there was some type of factual scenario which required further investigation, the knowledge of which might in some way have altered Mr. Norton's decision to change his plea from not guilty to guilty and to admit the violations of probation.   So the record is bereft of any witness whose testimony or knowledge would somehow alter the outcome here, even assuming that the Court accepted the testimony of Mr. Norton that he would have elected to go to trial.   It's clear from the record that Mr. Chong had at his disposal an investigator and the Court accepts Mr. Chong's testimony that he did not use the investigator, presumably through the public defender's office, to speak with any of the witnesses whose statements were in the prosecution file.  “Unusual” is the way Mr. Chong described the corroboration of a number of the witnesses on the scene of the Oak Street shooting.   Nine individuals, presumably of Hispanic or Latino heritage, in a predominantly Hispanic neighborhood, concurred that Mr. Norton was pointing a firearm at close range to the victim, without provocation or without justification, and without, in Mr. Chong's mind, a need for independent further investigation of the substance of the Statements or the circumstances of taking those statements.   The Court does not doubt that the statements were obtained-or produced, I should say-in English and it was not clear whether these individuals spoke Spanish or English as their primary language and the Court can't speculate in that regard.   This Court does not conclude that Mr. Chong's decision to not investigate the veracity or the accuracy of any of these 9 inculpatory consistent statements in any way constitutes deficient performance.   As Mr. Chong aptly described, if it were one or two witnesses, that scenario might indeed prompt further investigation, but because of the number, 9, all of whom corroborated the same event, as a practical matter he chose not to explore that avenue.   This Court cannot find unreasonableness or criticism of Mr. Chong in that regard.   I have likened this scenario to a battle of sorts, with arrows coming at an individual.   You might be able to deflect one or two, but if you have a half dozen arrows flying your way, chances are, if you're within the sights, all it takes is one arrow to strike home to create the fatal blow.   Here it was reasonable for Mr. Chong to conclude that in all likelihood these 9 statements would carry corroborative weight, or the majority of them would.   The Court does not find any deficiency with respect to the allegation in paragraph 16a.

With regard to 16b, it is alleged that trial counsel refused or neglected to have the metal pipe tested for blood originating from the petitioner's brother and co-defendant.   This Court finds that based upon the testimony and the evidence of record, there was not a need, for any forensic analysis of any metal pipe.   What is described in the factual summary is that the victim actually approached the vehicle occupied by Mr. Norton and his brother, with what was described as a white crowbar, and there was some type of altercation between Mr. Soto, the teenage victim, and the brother of Mr. Norton.   There may have been words, but by Mr. Norton's own testimony, there was no visible injury to his brother.   There was no blood.   Mr. Norton did not recall seeing any blood.   He didn't recall seeing any injury or blood in the vehicle.   There was broken glass.   Mr. Norton testified today that his brother never indicated he was injured.   There being no reasonable basis to warrant any blood testing, that would not be a reasonable request or the not pursuing of any blood analysis really doesn't constitute any deficient performance where such analysis would likely not have produced any meaningful evidence, again the existence of which would have in some way altered the outcome here.   For those reasons the petitioner has not established the allegations in paragraph 16b.   There is no deficiency and there is no prejudice.   With regard to the last allegation, in 16c, that trial counsel refused and neglected to meaningfully discuss a self defense defense with the petitioner.   This Court has already found that Mr. Cashman was the lawyer appointed for the purpose of evaluating that issue, among others.   This Court accredits Mr. Chong's testimony that it was on the eve or precipice of trial that the issue first came up.   There is nothing in Respondent's A, nothing in this case other than the petitioner's uncorroborated statement that there was any basis to investigate a defense of self defense.   This Court finds that calling in a separate attorney for the purpose of evaluating this was abundantly cautious, although not required, but it is clear also that Mr. Chong did speak with Mr. Cashman and Mr. Cashman conducted some type of investigation, the results of which he revealed on the record on July 31, in evidence, Petitioner's 3. Given the multiplicity of the accounts by the eye witnesses, the Court infers without speculating or seeing the statements that there was nothing in the statements of the eye witnesses to suggest that a defense of self defense was plausible.   The Court cannot find any deficient performance on the part of Mr. Chong in not further investigating any defense of self defense.   Indeed if I recall the substance of certain of the statements of the eye witnesses indicate that perhaps even the crowbar was placed on the ground and that there was no assault being perpetrated on Mr. Norton or that any altercation between Soto and Mr. Norton's brother had calmed down to the point which suggested that the use of deadly force, or the garnishing let alone firing of the gun was in no way justified or appropriate.   There is nothing to suggest that self defense should have been further explored.

Significantly, in the guilty plea and the canvass conducted by Judge Clifford, it is abundantly clear that Mr. Norton was entering the plea of guilty of his own volition and no promises were made to induce him.   There was not a conditional guilty plea, relying upon some contingency that had not yet occurred.   This Court does make a tacit finding that I am accrediting the testimony of Mr. Chong with respect to the specific length of exposure on the violations of probation which he described to his client, Mr. Norton, and that was 6 years on the VOP. Again, with all respect, Mr. Norton, given your history, it was difficult for the Court to accredit your testimony that Mr. Chong had said you had exposure of 54 years on the violations of probation, and had you believed it was actually 6 years, you would not have pleaded guilty and would have insisted on going to trial.   This Court cannot accredit that testimony.   You seem too bright an individual to so incorrectly believe the facts to be in that scenario.

With regard to the issue of prejudice, there is no prejudice.   There is clearly sufficient factual basis and again as to the practice book and statutes for the guilty plea.   As a practical matter-I don't mind commenting-in my view this is an instance of a lawyer doing what was unpleasant, but necessary, in trying to secure a certain length of incarceration which is undoubtedly lengthy for anyone, including Mr. Norton, but to run the risk of going to trial and being potentially convicted of attempted murder and other charges, exposing the petitioner to a far greater sentence was certainly far more risky than entering into the plea agreement.   Given the victim, who albeit did not have clean hands so to speak, who came into this scenario perhaps with a pipe, amid chaotic circumstances, because the victim suffered such a serious and life altering injury, if a jury came back with a guilty finding of attempted murder or even assault under these circumstances, again it is very conceivable that the Court may have sentenced Mr. Norton to a far greater length of time on charges for which he might not be eligible for parole, if it's a murder case, if I'm not mistaken.   And so the lawyer in my view did what was necessary in the interest of protecting his client, amid what was clearly a difficult situation, unpleasantries on both sides, probably emotions running high because of the nature of what was happening, by entering a plea bargain.   But again, given the outcome for Mr. Soto, the Court genuinely believes there was no prejudice, there was no deficient performance.   This Court does find that Mr. Chong discussed with Mr. Norton the defense of self defense and frankly felt it was not viable.   It was a tactical decision and those types of decisions are insulated to a degree, provided they are reasonable, and the Court so finds here, on the basis of this record, that it was not unreasonable and was not deficient for the attorney not to pursue that defense.

For all of the foregoing reasons, in the absence of both deficient performance and prejudice, the petition for writ of habeas corpus is denied.   Judgment may enter in favor of the respondent.   Should appeal follow, I am requesting that the petitioner prepare a judgment file within 30 days.   I am requesting that a transcript of this on-bench ruling be prepared for my signature.   It shall constitute a Memorandum of Decision.   I am requesting that notice of appeal rights be prepared for Mr. Norton and the record shall reflect the clerk has prepared those notices, is handing same to the marshal.   I am requesting the marshal serve upon Mr. Norton and his counsel the notice of appeal rights and the record shall reflect that has been done.   With that, this matter is concluded and I do want to thank both counsel and Mr. Norton and Mr. McIntyre I will note is rising in anticipation of his request.   I have no opposition to the appeal period being tolled until after receipt of the transcript of the ruling, assuming the petitioner makes a timely request for the transcript and files a copy of the communication to the Court.

ATTY. MCINTYRE:  May I address simply one comment that your Honor made in the course of this decision.   You referenced my comment upon Attorney Cashman's comment in the record as conceding a particular point with reference to the self defense defense.   It was my intent, your Honor, merely to relay to the Court that I believe Attorney Cashman's position and I did not intend that, although it may have been received as, a personal opinion.

THE COURT:  I see my notes and the record can be amended to reflect that and the Court will strike reference to any concession by the petitioner that the defense of self defense was weak, but that Mr. McIntyre was commenting on Mr. Cashman's view of the defense of self defense.

ATTY. MCINTYRE:  Thank you.

THE COURT:  With that amendment, that makes the record clear, and I should indicate that does not change the outcome or the Court's decision.   Anything further on the record?

ATTY. PILLSBURY:  No, your Honor.

THE COURT:  All right.   With that this matter is concluded.   Court stands adjourned until 10 a.m. tomorrow.

Signed:  Nazzaro, J.

Hon. John J. Nazzaro

Nazzaro, John J., J.