303302 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

The petitioner, Guy Ambroise, filed a petition for a writ of habeas corpus on January 12, 2007, challenging the legality of his detention.   On January 10, 2005, the court, Nigro, J., granted a motion by the state to join two cases for trial involving the petitioner, Docket Nos. CR04-0148945 and CR04-0149523, in the judicial district of Stamford-Norwalk.   Following a jury trial, the petitioner was convicted, on February 4, 2005, of assault in the first degree by means of a dangerous instrument in violation of General Statutes § 53a-59(a)(1), which carries a mandatory minimum sentence of five years incarceration.   He was also convicted of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59(a)(1) and possession of narcotics in violation of General Statutes § 21a-279(a).   The jury found the petitioner not guilty of interfering with an officer in violation of General Statutes § 53a-167a(a).   On April 29, 2005, he was sentenced by the court, Kavenewsky, J., on the assault conviction to fourteen years incarceration, five years of which were a mandatory minimum, fourteen years concurrent on the conspiracy to commit assault, and lastly four years to serve concurrent on the possession of narcotics offense with a six-year term of special parole.   The petitioner was represented throughout the trial proceedings by Attorney David Marantz of Stamford, Connecticut.   The petitioner initiated an appeal of his convictions but after the court, Devlin, J., permitted appointed counsel to withdraw, the petitioner apparently did not further pursue the appeal.

On September 22, 2008, and again on September 1, 2009, the petitioner, through his attorney, amended his petition for a writ of habeas corpus setting forth, in essence, four claims.   The petitioner claims firstly that his trial attorney was deficient for failing to effectively challenge the testimony of the state's witnesses including the victim, Rory Richardson.   Second, the petitioner claims his trial counsel failed to advance a third party culpability defense involving a Herbey Collins.   Third, he claims his trial attorney failed to adequately investigate the state's witnesses.   Lastly, the petitioner seeks to have this court grant him the extraordinary writ, claiming trial counsel failed to suppress a pretrial out-of-court photo identification that the petitioner claims was “unnecessarily suggestive” and thus, violative of his constitutional rights, in particular, his right to due process.   He asks this court to “release him from custody unless he is promptly afforded a new trial.”   Second Amended Petition.   The respondent filed a return on October 16, 2009, denying the material allegations of the petition.

The matter came before the court for a trial on the merits on April 21, 2010.   Testifying were the petitioner, Patrick Roy, a private investigator retained by habeas counsel, and Attorney Marantz.   Both parties submitted exhibits, among them, a judgment mittimus, transcripts from the underlying criminal proceeding, various court records, including a copy of the long form information, omnibus defense motion for disclosure, motion for a new trial, motion for judgment of acquittal, a so-called Giglio ¹ request for witness information, the state's motion for joinder and order on same, the affidavit accompanying the warrant application, the petitioner's proposed request to charge on the defense of self-defense, the memorandum of decision on appointed appellate counsel's motion for permission to withdraw appearance, the state's witness list, the appearance of Attorney Marantz, two letters by the petitioner to Attorney Marantz and a letter by Attorney Marantz to the petitioner.   Other exhibits were also admitted into evidence.   The parties filed simultaneous post-trial briefs on or about May 24, 2010.   After careful consideration of the entirety of the trial testimony, the exhibits and the arguments of counsel, for the reasons outlined below, the petition for a writ of habeas corpus is DENIED.

FINDINGS OF FACT

The jury could have reasonably found the followings facts.   On the evening of June 18, 2004, the petitioner and a group of his friends attended a carnival or fair sponsored by St. Mary's church in Stamford.   Later, the petitioner, who was known as “Gee,” and his friends encountered a seventeen-year-old boy, Rory Richardson or “Big Roy” as he was known, and a group of his friends.   At some point, the petitioner pulled a gun from his waistband and began waving it around.   He confronted Richardson, pointed the gun at him and ordered him to get on his knees.   While wielding the gun, the petitioner struck Richardson on the top of his head, splitting his skull open.   Richardson felt immediate pain and toppled over onto the ground.   Blood was running down his head, and he could not feel his right leg.   It is possible that he lost consciousness, even for a brief moment.  (Exhibit A;  Exhibit B.)

At approximately 11:30 p.m., this disturbance drew Ronald Hunter from his home at 39 Sheriden Street.   Hunter had been watching television when he heard what he believed was a “fight” break out outside his home.   A Vietnam veteran, Hunter told his wife to call 911 and went outside.   From his front porch Hunter could see about five to six young black men kicking and beating an individual on the ground.   The street was lit.   While Hunter attempted to pull the young men off the victim, he heard the sound of something hitting the ground.   It was then that he saw a silver pistol, laying near the sound he had just heard.   He had seen and used guns before when he was in Vietnam.   Hunter testified at the criminal trial that he then told his wife to call the police again and to tell them there is a weapon.   He covered the man on the ground, presumably to protect him.   Sirens could be heard.   The young men, including the petitioner, then scattered and ran.   Richardson lay on the ground.   Once help arrived, Hunter realized that the young man at his feet was actually a cousin of his.   (Exhibit A, pp. 19-29).

Richardson was transported to Stamford Hospital where he was admitted into the hospital's intensive care unit.   He suffered a depressed skull fracture and required stitches to close a laceration on his head.  (Exhibit 1.) A neurosurgeon who treated Richardson described his injury as a “very, very serious (and dangerous) injury.”  (Exhibit B, p. 5.) Officers from the Stamford police department later spoke with Richardson.   The officers presented Richardson with a photo array of possible suspects.   He positively identified a photo of the petitioner.   Richardson circled the petitioner's photo number two and said, “That's the guy who hit me with the gun.”  (Exhibit A, pp. 109-10.)   The petitioner would later admit he struck Richardson in the head.  “I hit him and he fell,” the petitioner testified at his criminal trial.   He further admitted to “fleeing” afterward, although he denied possessing a gun on the evening of this event.  (Exhibit B, pp. 91-97.)

In an unrelated incident, Stamford police Sergeant Larry Brown was working the midnight shift on August 16, 2004.   While on general patrol in a marked cruiser, Brown came upon a “well worn gray van” at approximately 2:20 a.m. in an area known for sales and use of narcotics.   As Brown approached from Lawn Avenue down to Custer Street and upon making his presence known, he observed the operator of the van nervously pull away from the curb.   He followed the van as it crossed down a number of side streets.   Brown observed the operator make a prohibited left-hand turn near the McDonald's restaurant on East Main Street.   He stopped the van.   Before approaching, Brown called for backup.   He could see three occupants through the van's tinted windows.   Once his backup arrived, Brown approached to speak with the operator.   Although the driver identified himself, he could not produce his driver's license or any proper paperwork for the vehicle.   The petitioner was seated in the front passenger's seat.   The occupants were removed from the vehicle.   An inventory search revealed an amount of white powdery substance in the area where the petitioner had been seated.   A search of the petitioner revealed a small chunk of white substance from his pant's pocket.   Upon inquiry with the petitioner, the petitioner claimed the pants were not his.  (Exhibit A, pp. 125-35, 156.)   The substance tested positive for cocaine.  (Exhibit B, pp. 10-13.)

Additional facts will be discussed as necessary.

DISCUSSION

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 ․ 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 ․” (Citations omitted;  internal quotation marks omitted.)  Summerville v. Warden, 229 Conn. 397, 422-23, 641 A.2d 1356 (1994).

In his second amended petition, the petitioner alleges that his trial counsel, Attorney Marantz, rendered ineffective assistance in numerous ways.  “In Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings:  the defendant must show:  (1) that counsel's representation fell below an objective standard of reasonableness ․ and (2) that defense counsel's deficient performance prejudiced the defense ․

“The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the [s]ixth [a]mendment ․ In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential ․ The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.”

“The second part requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable ․ The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors;  the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  (Internal quotation marks omitted.)  Valentin v. Commissioner of Correction, 94 Conn.App. 751, 755, 895 A.2d 242 (2006).

A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice.   See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006).  “[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment.”  Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 801, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).  “[I]t is well established that a habeas court cannot in hindsight second-guess an attorney's trial strategy.”  Id., 804.

1. The Petitioner's Claim that Trial Counsel Failed to Effectively Cross Examine the State's Witnesses Lacks Merit

The petitioner alleges that his trial attorney failed to effectively cross examine the state's witnesses.   Specifically, he claims that Attorney Marantz should have challenged Richardson's testimony that the petitioner hit him on the head with a gun by confronting him with the testimony of Hunter.   On cross-examination, Hunter testified that he saw objects such as rocks and flowerpots being thrown at Richardson and that he did not see anyone hit Richardson with a gun.  (Exhibit A, pp. 34-38.)

At the habeas trial, Attorney Marantz testified that he filed an appearance on behalf of the petitioner in October 2004 in lieu of an appearance previously filed by Stamford Chief Public Defender, Susan Hankin.   Attorney Marantz has practiced criminal defense exclusively for twenty-one years.   He was admitted to the bar in 1989.   By the time he represented the petitioner, Attorney Marantz had represented thousands of individuals accused of committing crimes.

A review of the transcripts of the petitioner's criminal trial reveal, contrary to the petitioner's contention, that Attorney Marantz effectively cross examined the state's witnesses, including Richardson.   He questioned Richardson extensively regarding his ability to recall how he was injured and who injured him and confronted him with various statements he allegedly made to the police.  (Exhibit A, pp. 68-92.)   The mode and manner of the cross-examination of Richardson was purely tactical in nature.   See State v. Drakeford, 63 Conn.App. 419, 427, 777 A.2d 202 (2001) (“[a]n attorney's line of questioning on examination of a witness clearly is tactical in nature”), aff'd, 261 Conn. 420, 802 A.2d 844 (2002).   As noted supra, “there is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment ․” (Citation omitted.)  Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002).   The petitioner has not sufficiently rebutted this presumption.

Nor has the petitioner proven that Attorney Marantz's alleged ineffective cross-examination of the state's witnesses prejudiced the defense.   Hunter's testimony that he saw objects being thrown at Richardson and that he did not see anyone strike Richardson with a gun is of no moment where Richardson was before the jury which presumably measured his ability to accurately recall and relate the events of this fateful evening.   Additionally, Hunter testified that when he came out of his house to see what all the noise was about Richardson was already on the ground.  (Exhibit A, p. 33.)   He notably did not see how Richardson got on the ground.   He also testified that flowerpots and rocks were thrown at Richardson while he was lying down.  (Exhibit A, pp. 34-36.)   Richardson testified that shortly after the petitioner hit him on the head with a gun he fell down and covered his head and face, as he continued to be attacked.  (Exhibit A, pp. 86-87.)   He unequivocally identified the petitioner both in court and out of court as the assailant who struck him over the top of the head with a gun causing serious injury.  (Exhibit A, pp. 66-68.)   In light of the above, confronting Richardson with the testimony of Hunter would have been of little import, as it is possible that, unbeknownst to Richardson, objects may have been thrown at him while he was lying on the ground.

In short, the petitioner has failed to demonstrate that had Attorney Marantz cross examined the state's witnesses differently a more favorable outcome would likely have resulted.   To conclude otherwise would be to engage in pure speculation.   Again, the cross-examination was tactical and when viewed in the context of preceding a defense case that included the petitioner, himself, testifying, fatally criticizing the depth and scope of cross-examination that appears in the record here is to engage in the hindsight second guessing our courts have discouraged.   See Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 804.

2. There is No Showing that Trial Counsel Ought to have Advanced a Third Party Culpability Defense

The petitioner claims Attorney Marantz should have introduced evidence that another individual named Herbie Collins was responsible for the assault by calling him, Stanley Bruno, the petitioner's friend, and members of the petitioner's family as defense witnesses.   He alleges that Collins admitted to members of his family and to Bruno that he assaulted Richardson with a flowerpot.

“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.)  Morant v. Commissioner of Correction, 117 Conn.App. 279, 303, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).   Moreover, “[d]efense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial.”  (Internal quotation marks omitted.)  Conde v. Commissioner of Correction, 112 Conn.App. 451, 458, 963 A.2d 1007 (2009).

Although it was brought out at trial that more than one person attacked Richardson,² without a reasonable basis to both discover and produce any witness, Collins or someone else, there is no deficient performance on the part of Attorney Marantz.   Attorney Marantz credibly testified at the habeas trial that he first heard about Collins in a letter sent to him by the petitioner from jail following his conviction.   He further testified that he contacted a private investigator, Vito Colluci, to look further into the matter.   Nothing apparently resulted but Attorney Marantz did file a motion for a new trial based on inter alia, “[t]he [petitioner reporting] that after his trial ended in a conviction, another person [had] claimed-responsibility for the assault.”  (Exhibit 17.)

Moreover, the petitioner has failed to present credible evidence that had Attorney Marantz produced Collins or any other witness, he would have been able to successfully advance a viable third party culpability defense.   Even though Richardson testified that he was hit in the face and stomach by others on the night of the assault, he testified that he was only hit once on top of the head and that was by the petitioner with a gun.  (Exhibit A, p. 61.)   The petitioner in his defense case presented essentially three witnesses, including himself, who testified that he struck Richardson “in the face.” ³  One must presume this was a tactical decision by counsel to implicitly suggest that someone other than the petitioner may have inflicted the serious top head skull fracture as opposed to a blow to the face and thereby raise reasonable doubt on the assault charge.   The jury reached a different conclusion.   It is purely speculative to assume that a third party culpability defense would have been successful if Collins or any other witness was produced at trial.   Collins did not testify at the habeas trial.   This court cannot speculate as to whether he would have testified at the criminal trial nor as to the substance of any such testimony.  “Mere conjecture and speculation are not enough to support a showing of prejudice.”  (Internal quotation marks omitted.)  Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).   Accordingly, the petitioner has failed to demonstrate either deficient performance or prejudice with respect to this claim.

3. There is No Showing that Trial Counsel's Investigation was Deficient

The petitioner alleges that trial counsel did not adequately investigate his case prior to trial.   He claims that with more diligent efforts, Attorney Marantz could have located and produced other defense witnesses, including Collins and a Nesquin Basquat.

“The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.”  (Internal quotation marks omitted.)   Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1995).  “The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.   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.”  Strickland v. Washington, supra, 466 U.S. 691.  “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.”  Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).

Here, the record is bereft of any evidence to establish that Attorney Marantz' investigation was in any way deficient.   As noted supra, in October 2004, Attorney Marantz began to represent the petitioner in lieu of Stamford Chief Public Defender Hankin.   At the habeas trial, he testified that he had full access to the state's file and that an investigator from the public defender's office, Joe Mclure, had conducted an investigation prior to his representation of the petitioner based upon information provided to him by the petitioner.   The petitioner testified that he gave the investigator a list of names of potential witnesses.   Attorney Marantz stated that that most of the names provided by the petitioner did not have addresses or telephone numbers that were in his words, “solid.”   He could not recall the substance of any of their expected testimony.   Attorney Marantz further testified that the petitioner did not mention Basquat as a potential witness and only mentioned Collins after the trial, at which point he enlisted the services of Colluci, who apparently was unable to locate Collins.   In light of the above, the petitioner has failed to demonstrate deficient performance.   In plain speak, trial counsel did the best he could with the information available to him.

The petitioner has also failed to demonstrate any prejudice resulting from Attorney Marantz' allegedly inadequate pretrial investigation.   The petitioner did not produce, at the habeas trial, any of the potential defense witnesses who Attorney Marantz allegedly could have and should have produced at the petitioner's criminal trial.   Patrick Troy, a private investigator retained by habeas counsel, testified at the habeas trial that he was able to locate and speak with Basquat who is attending college in Florida.   Despite this testimony, the court cannot and will not speculate as to the availability of Basquat or any other potential defense witness to testify at the petitioner's criminal trial nor will the court speculate as to the substance or import of what they may have testified to had they done so at the petitioner's criminal trial.   See Hamlin v. Commissioner of Correction, supra, 113 Conn.App. 596.

Additionally, the defense advanced was one of innocence.   Examination of the testimony that was presented in the defense's case-in-chief, including that of the petitioner, himself, reflects a trial strategy that acknowledged the petitioner struck Richardson but not to the extent claimed by the prosecution.  (Exhibit B.) The defense also sought and received a charge on self-defense.  (Exhibit 15;  Exhibit C.) The jury acquitted the petitioner of the charge of interfering with an officer.   The court also granted a motion for judgment of acquittal of counts three and four, the gun charges.⁴  (Exhibit B, p. 22.)   In brief, the petitioner has failed to demonstrate how he would have benefited from any additional investigation.

4. The Petitioner Abandoned Any Claim that Trial Counsel Failed to Challenge Any Photo Identification Procedure

Lastly, the petitioner claims that Attorney Marantz was deficient for not challenging or moving to suppress the pretrial out-of-court identification of the petitioner from a photo lineup.   The petitioner contends the lineup was “unnecessarily suggestive and conducive to irreparable mistaken identification.”   Second Amended Petition, ¶ 3 (D).  The petitioner failed to present any evidence on this issue and for that reason the court deems the claim to have been abandoned.   See Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007), cert. denied, 289 Conn. 911, 957 A.2d 868 (2008).

CONCLUSION

As discussed supra, there is insufficient evidence of deficient performance or prejudice on the part of the petitioner's trial counsel.   Consequently, the petition for a writ of habeas corpus is DENIED.   Should the petitioner wish to appeal, counsel shall file a judgment file with the court within thirty days.

BY THE COURT,

Nazzaro, J.

FOOTNOTES

FN1. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)..  FN1. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

FN2. Officer Raphael Barquero testified that Richardson described two attackers to him.  (Exhibit B, pp. 73-74.)   Richardson, himself, testified that he was attacked by a group of kids.  (Exhibit A, p. 55.).  FN2. Officer Raphael Barquero testified that Richardson described two attackers to him.  (Exhibit B, pp. 73-74.)   Richardson, himself, testified that he was attacked by a group of kids.  (Exhibit A, p. 55.)

FN3. Nina Celesna testified she saw the petitioner “punch him [Richardson] in the face.”  (Exhibit B, p. 42.)   Michael Montes also testified, when called by the petitioner, that “Gee [the petitioner] punched him [Richardson] in the face.”  (Exhibit B, p. 50-51.).  FN3. Nina Celesna testified she saw the petitioner “punch him [Richardson] in the face.”  (Exhibit B, p. 42.)   Michael Montes also testified, when called by the petitioner, that “Gee [the petitioner] punched him [Richardson] in the face.”  (Exhibit B, p. 50-51.)

FN4. The third count of the information charged the petitioner with possession of a firearm in violation of General Statutes § 53a-202k.   The fourth count charged the petitioner with criminal possession of a firearm in violation of General Statutes § 53a-217.  (Exhibit 8.).  FN4. The third count of the information charged the petitioner with possession of a firearm in violation of General Statutes § 53a-202k.   The fourth count charged the petitioner with criminal possession of a firearm in violation of General Statutes § 53a-217.  (Exhibit 8.)

Nazzaro, John J., J.