Donald Gibson v. The Warden, State Prison (2010)

MEMORANDUM OF DECISION

MEMORANDUM OF DECISION

Now, we're back in session with this matter which is Gibson versus The Warden, and I am prepared to a render a decision at this time.

Now, preliminary I should say that you, Mr. Gibson, as the petitioner, are appearing before this Court as a convicted felon.   You do not have the presumption of innocence that you had originally when you started your trial below.   So, because of that the burden is obviously upon you to prove your case so that you may obtain the relief that you're requesting in this matter.   It's not up to Mr. Eisenman representing the respondent to do that.

Now, in this case the claim, as your lawyer has presented, you have presented through your lawyer, is that you are claiming that your attorney, Attorney Papastavros was ineffective in her representation of you, and as we all know, and I'm sure both of you well know, that the controlling case here is Strickland v. Washington, and in the Strickland case we're told that you've got to do two things in terms of this test.   This is, again, the petitioner's burden.   The petitioner has to prove that Ms. Papastavros did not act in the way that a reasonably prudent and competent attorney would have acted during the course of this trial.   Now, also that's not enough.   Remember, you've also got to show that what she did was wrong or how she was ineffective prejudiced you in some way.

Now, what happened in this case:  It appears that having reviewed the transcripts, and I've reviewed three transcripts which are Petitioner's Exhibits 1, 2, and 3, and I will say in the time that I've had to review them, which has been about thirty-five minutes, I have not read them completely in their entirety, but I've certainly read carefully those sections which Mr. Eisenman and Mr. D'Onofrio have directed me to, but I've read other areas as well.

Now, I've also read the arrest warrant, which has the statement-the arrest warrant application which is Petitioner's Exhibit 4, which contains the affidavit of the complaining witness because that was certainly something- one of the claims specifically is directed toward her cross examination regarding her conflicting comments on that affidavit.   So, I did read that.   And I also read what Mr. Eisenman suggested I read, which is Respondent's Exhibit A, which has-this is a transcript before Judge Fasano, which indicates approximately when Ms. Papastavros was aware of this matter and was going to be appointed on the case.   So, we do know from that piece of evidence that there was a little bit more, perhaps not a tremendous amount more, but more than a week's time certainly to prepare for this.

Now, having said all that and having indicated that I've reviewed that evidence, I also want to comment on the testimony that I've heard today.

We heard, and maybe the best way to do this because there are, I believe six claims, that you, Mr. Gibson, are saying are the basis of the ineffective claim.   I want to look at each one of these.

We did hear testimony from your attorney, Ms. Papastavros, and she did respond, although as Mr. D'Onofrio indicated to his questions, she really couldn't recall too much.   There were specific questions on the cross-examination brought out by Mr. Eisenman that relate to each of these claims in some specificity and, although, again some of her answers were somewhat general, she did make specific comments and, of course, I read some of the testimony here that she did use in eliciting in her cross-examination or her direct examination of certain witnesses.

Now, let's look at 9-A in the petition.   The first and probably the area which both of you really had most of your, I would say, most of your questioning regarding was the fact that she failed to properly cross-examine the complaining witness regarding prior inconsistent statements.   Well, in that regard I would have to totally agree with respondent's attorney.   When you have a complaining witness that is accusing someone of sexual assault, a defense attorney is going to have to deal with this in a very delicate manner and having examined the cross-examination, and I read that carefully, of the complaining witness, it appeared that your attorney did a very good job without causing certain inflammatory comments to be brought forth or without emphasizing certain things because, as she stated repeatedly, she's had experience in these areas as an attorney and by 2005, she had had extensive experience in these types of trials and she knew that she had to deal with this type of witness very delicately, and yet she did ask sufficient questions in an attempt to try to show that not only were these statements inconsistent, but perhaps there was some motive that she had in saying what she said, at least what she put before the jury seemed to be a very reasonable and adequate manner in which she cross-examined that witness.

So, I don't, not only from the exhibits, but from her testimony, I certainly can't conclude that-cannot conclude that she was ineffective.

Now, B, she failed to cross-examine the state's medical witness regarding a lack of trauma to the complaining witness.

Well, I think not only the argument that was made, not only with respect to B, but with respect to, let me find the other, with respect to-well, I guess that's-that may be the only particular one.   I thought there was another claim that might have this same issue, but with respect to B, there certainly wasn't any reason why, if we look at the results of this case, it would have been any different and that you would have been prejudiced because with-as far as the DNA evidence was concerned, the risk of injury claim that you've-and you were were convicted of risk of injury, not the sexual assault, but risk of injury, it wouldn't really have mattered in this case, and so as far as B is concerned, I don't think there was sufficient evidence to show that you would have been prejudiced in any way had she either done or not done that.

C, she failed to move for a new trial on the basis of inconsistent jury verdicts.   Well, it appears that they weren't inconsistent and Mr. Eisenman made that argument and that's in effect factually true.   So, whether or not she did that would not have prejudiced you in any way.

She failed to properly-this is D now.   She failed to properly cross-examine state's witnesses regarding chain of custody of the rape kit introduced at trial.   That I do not feel in any way I have had sufficient evidence to show that she was ineffective.   In fact, I would say quite the opposite both from the-what I read in the transcript and what she stated.

E, she failed to ask for a curative instruction regarding state's witnesses' improper use of the term victim.

Well, I think she fully explained why she did that:  That she didn't want it.   That she actually told the judge she, even though it was offered, that she did not want that because, again, she would be emphasizing the word victim in front of the jury.

And F, she failed to properly cross-examine state's witness Nicholas Yang, regarding the petitioner's DNA. When I read some of the direct, I would have to agree with the characterization of the testimony that your attorney had that it was very confusing and that a lay person might have some difficulty hearing it, but her answer, interestingly enough was that she only asked one question.   Well, she did ask more than one question.   I think the-and I wrote down the pages.   There were approximately eight pages of testimony, of cross-examination, excuse me, of Mr. Yang.

Let me see if I can find the reference to the specific pages here.   I think it's 170.   Yes, I have it.   It's pages 170 through ․

This is Exhibit 2, 178, and she did ask him more than one question.   Finally, the final question was though, what she recalled, because you know after five years I guess it's difficult to recall every single question you ask, but there was some significantly important questions that she did ask him prior to this, but the most important was:  Are you a hundred percent sure by the results, and of course the answer is no.   So, that's the one she remembered and that's the most significant and that would certainly have helped you significantly, if it was of any import to the jury in terms of the charges.

Now, I don't think any of your testimony, and I don't mean to demean you personally, sir, but nothing that you stated that told me about what happened that day or anything about what happened in court with your attorney really suggested to the Court legally that in any way Attorney Papastavros was ineffective.   So, that there-without having that-any other information other than her testimony which appeared to buttress her argument and the state's argument that she was effective, I really can't conclude she was ineffective.

Now, clearly because of the result, the not guilty verdict on the sexual assault, albeit the guilty verdict on the risk of injury, I really cannot conclude that any-that there was sufficient evidence, and again you have the burden of proof to make any conclusion in any way that Attorney Papastavros' performance was deficient and that even much less that there was any prejudice.   I think she did a very good job for you in that you had-you know you were acquitted on one charge and convicted on the other.

Now, in order to grant the habeas, obviously this Court must be satisfied that the underlying conviction has been shaken in some way, that my confidence in the court below has really been taken away and I've heard nothing in terms of testimony nor in what I've read that would allow me to do that and consider it anything but reliable, so that the jury verdict seems to be appropriate.

So, consequently I have to deny this petition of a writ of habeas corpus.

Now, do either of you want to make any comment whatsoever now?   Mr. D'Onofrio?

ATTY. D'ONOFRIO:  No, Your Honor.

THE COURT:  Okay. Mr. Eisenman?

ATTY. EISENMAN:  Thank you, Your Honor.

THE COURT:  Okay. All right.   And we will adjourn.

ATTY. EISENMAN:  Your Honor, perhaps we could have the clerk give him the paperwork for the appeal.

THE COURT:  That would be very helpful, if you would hand him the paperwork now for the appeal process and you should fill out that paperwork at this point, sir.   All right.   And I'll just ask the reporter to please type that up for my signature.

Okay. Thank you very much.   And we will adjourn.

Santos, J.

Santos, Thelma A., J.