Jose Aviles v. Warden, State Prison (2009)

EXCERPT:  COURT DECISION

THE COURT:  Good afternoon.   All right.   We are back on the record regarding Mr. Jose Aviles versus the Warden.   And I do want to thank both counsel for an orderly presentation of the evidence and assure Mr. Aviles that the Court realizes this was a very brief proceeding involving two witnesses, and do not infer in any way that the Court views the length of a case to reflect the seriousness that I know Mr. Aviles approaches this with, and certainly the same degree of seriousness that his attorney, Mr. DeSantis, has approached this claim with.   And by the same token, I'm fully aware that the respondent has taken this case in the appropriate vein of seriousness that it deserves.

This is a claim of ineffective assistance of counsel and in hearing this case the Court heard testimony from two witnesses, the petitioner himself, Mr. Aviles, and testimony from his former attorney, Mr. David Channing.   In addition, in evidence is a transcript of the proceedings In re State versus Aviles, CR01300224, transcripts from trial dates including April 2nd, '03, April 3 of '03, April 4 of that same year, April 7, April 8, and April 9 of the year 2003.   That was admitted without objection as Petitioner's 1 through 6 and the Court certainly has read those parts of the transcripts which the Court deems to be relevant on the claims pled here.

This case arises from events in the Judicial District of Waterbury and the Court makes the following findings.   Mr. Aviles at present is in the custody of the Commissioner of Corrections.   He was the defendant in the case of State versus Aviles previously referenced.   In addition to the evidence presented today, the Court read in its entirety the decision on appeal from the conviction as reported in the matter of State versus Aviles, 277 Connecticut 281 (2006).   That is a decision by the Connecticut Supreme Court, which reviewed the underlying conviction, and in a decision by Justice David Borden, affirmed the conviction.

So the Court takes judicial notice of certain of the facts as set forth by the Court in the decision of State versus Aviles.   The Court makes a finding that prior to April 2003, Mr. Aviles was arrested.   At all relevant times herein, Mr. Aviles was represented by Assistant Public Defender David Channing.   Mr. Channing, in his charge as attorney for Mr. Aviles, met with his client, obtained information germane to the allegations against his client, not the least of which was a charge of murder in violation of Connecticut General Statute Section 53a-54a(a).

In the course of representing Mr. Aviles, Mr. Channing met with Mr. Aviles on a number of court appearances, exceeding one dozen appearances including various pretrial conferences, a hearing on probable cause, a hearing in connection with an examination pursuant to Connecticut General Statute Section 54-56d.   In addition, a motion to suppress hearing having to do with a motion to suppress statements, oral and written, and other evidence obtained, and a statement in particular by Mr. Aviles or statements by Mr. Aviles made to police officers at various times.

Mr. Channing attempted to negotiate a plea offer without success, and this Court finds that it was the decision of Mr. Aviles to proceed to a trial before a jury and, in fact, Mr. Aviles exercised his right of trial by jury on the dates in April '03 previously referenced.

After proceeding to trial, the jury, on or about April 9 following deliberations, returned a verdict of guilty on the two counts, including murder in the first degree and the second, criminal possession of a firearm in violation of Connecticut General Statute Section 53a-217c(a)(1).

With regard to the underlying facts of this case, they're adequately set forth at page 284 of the Supreme Court decision by Justice Borden, wherein the Court states, the jury could have found the following facts.   On the evening of May 15, 2001, the petitioner-and I shall refer to Mr. Aviles interchangeably as petitioner and defendant-who was a nineteen year old drug dealer, was in the area of Grove and Willow Streets in Waterbury, which was a neighborhood where he carried out his drug trade.

The victim, Robert Dixon, and his Friend, Dyenne Martell, were walking in the same neighborhood looking to purchase narcotics.   Following a dispute over a drug sale, the defendant, aided by a number of his associates, attacked the victim.   The victim was severely beaten and hit on the head with a rock or cinder block, causing him to bleed profusely and to become disoriented.

After the fight, Martell led the victim to a barber shop approximately one block away to care for his injuries and to await an ambulance.   As Martell was caring for the victim, the defendant left the scene of the altercation and retrieved from an abandoned house a loaded gun that he used regularly for protection.

Soon thereafter, the defendant, petitioner, armed with the gun and wearing a yellow bandana over his face, returned to the area of the fight and approached the victim, who was in the presence of Martell and a number of other bystanders.   From close range, the petitioner fired one shot at the victim that struck him, Dixon, in the chest and ultimately resulted in his death.   Subsequently, the defendant, petitioner, ran away from the scene of the shooting to an apartment at 7 Cossett Street in Waterbury, where he admitted to a number of people that he had shot the victim.

At approximately 8:00 pm, the police arrived at the scene of the shooting and found the victim seriously injured.   The police began to search for the petitioner, who was their prime suspect based upon identifications made by the bystanders who had witnessed the shooting.   The police continued their investigation throughout the night, and early the next morning, they located Darain Romero, who they believed possessed firsthand knowledge about the shooting and the petitioner's current whereabouts.

At approximately 8:00 am the following day, Romero gave the police a statement in which he described having witnessed the defendant, petitioner, shoot the victim.   Romero also told the police that, following the shooting, he had been with the petitioner earlier in the morning at an apartment at 7 Cossett Street in Waterbury and overheard the petitioner say that he had shot the victim because the victim “was trying to steal weed from him,” and that he would not get caught because he “was going to keep hiding out.”

The police went to the Cossett Street apartment, where they located the petitioner in a bedroom.   The police took the petitioner to the police department where he was advised of and waived his rights under Miranda versus Arizona, citation omitted.   The defendant, petitioner, confessed, both orally and in writing, to having shot the victim, and led the police to the gun where he used-excuse me-the gun that he used to shoot the victim, as well as the shirt he was wearing at the time of the incident, both of which he had hidden in a park near the scene of the shooting.

The police also seized the bandana that the defendant had been wearing at the time of the shooting, and the jeans and, boots that the defendant was wearing when he was brought to the police station.   At approximately 8:00 pm on the day after the shooting, as the petitioner was being led into the booking area of the police department, he encountered some young men in the holding area whom he recognized, and they commented about the shooting.   Specifically, they asked the petitioner why he had shot the victim, to which he responded, “Yo, I'm glad I shot him.”   Additional facts will be set forth in the course of this Court's ruling.

With respect to this claim, the petitioner sets forth his claim, essentially, that he was deprived of his right to effective representation guaranteed him under the Connecticut Constitution, and also the United States Constitution, in an amended petition dated August 18, 2009, through his attorney, Mr. DeSantis.

Mr. Aviles claims that his attorney, Mr. Channing, failed to adequately and fully represent the petitioner and failed to, (a), communicate with the petitioner, (b), locate and speak with the potential witness Madelyn Quintana, and lastly, (c), object to a full playback of testimony to the jury of all of Dyenne Martell's testimony, quote, “While only playing back a portion of the petitioner's trial testimony,” end quote.   Counsel and the petitioner allege that but for the ineffective assistance there is a strong likelihood that the trial would have been different.   Petitioner makes several alternative requests for relief in this proceeding.

In as much as this is clearly a case involving a claim of ineffective assistance of counsel, the parties in the court are guided, of course, by the seminal and leading case in this area as pronounced by the United States Supreme Court in the case of Strickland versus Washington, 466 U.S. 668, a 1984 decision.   A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice.

To prove deficient performance a petitioner must show that defense counsel's representation fell below an objective standard of reasonableness.   Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable, professional judgment.   To prove prejudice the petitioner must establish that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.   Counsel's attention is directed to the cases of Ledbetter versus Commissioner of Correction, 275 Conn. 451, page 458, a 2005 decision, and cases there cited at page 258.   If the petitioner fails to establish either deficient performance or prejudice, the claim fails.

Looking at this narrowly drawn claim, the first allegation in the complaint is that the attorney failed to communicate with the petitioner.   Few facts deserve mentioning with regard to analysis of this particular claim.   The Court heard testimony of both Mr. Aviles and Mr. Channing, and with respect to this particular issue, there is a degree of concurrence in the testimony.   Mr. Aviles, himself, did testify that he met with Mr. Channing on a number of occasions and during those occasions the pair did discuss aspects of the charges against Mr. Aviles, as well as, essentially, aspects of a strategy defense.

Mr. Aviles, himself, admitted that he was able to effectively communicate in different environments in which he was housed, be it a local jail or in the courthouse where a number of the conferences occurred.   With respect to the exact number of visits or conferences between counsel, this Court concludes that is insignificant on this particular claim.   As with this type of claim, it's the nature and depth and quality of the communication between attorney and client regarding various aspects of the necessary defense, which ensued here, that is important to the Court.

The Court heard the testimony today of Mr. Channing, who testified that at the time he represented Mr. Aviles he was an Assistant Public Defender in Waterbury, had experience taking at least two cases involving murder to verdict, and this being his third.   He had handled in excess of hundreds, if not thousands, of criminal matters, including felonies and misdemeanors, both as a Part A public defender and as an Assistant Public Defender in the Meriden Court where he worked for approximately five years.

Mr. Channing had done his undergraduate work at the University of North Carolina at Chapel Hill, graduating from that institution in 1984.   Thereafter, he obtained his law degree from the University of Bridgeport in approximately 1994, after which he engaged in a private practice for a short period and became a public defender one year later.   In viewing the testimony of Mr. Channing, it was apparent to this Court he did not have the benefit of reviewing any file, but relied in large part upon his present recollection of the circumstances involving his representation of Mr. Aviles.

With regard to the issue of communication, the attorney credibility testified that he discussed all aspects of this case with Mr. Aviles, and in the course thereof, he actually requested and obtained an examination pursuant to section 54-56d on the issue of competency.   Mr. Aviles was presumably found competent prior to his standing trial.   It was Mr. Aviles's decision to proceed to a trial.

In the course thereof, it is clear that both counsel and Mr. Aviles agreed upon a defense strategy employing an admission that Mr. Aviles did, in fact, shoot the victim, Mr. Dixon, but he did so under extreme emotional disturbance.   It is clear from the record, both at trial and in testimony today, that both attorney and client agreed on this strategy and attempted to advance that strategy as a defense to the charges.

It is notable that in the state's case a number of witnesses testified who were present at the time of the shooting, not the least of which was this Dyenne Martell.   And the Court will comment further with respect to the import of Ms. Martell's testimony in the context of reviewing the claim, specifically regarding the playback of Martell's direct testimony.

In addition to Martell being present and being an eyewitness to the shooting, the defense put on a defense, including the petitioner, himself, testifying and, therefore, putting his own credibility before the jury.   And in the course thereof, the petitioner testified both at trial, and today, as to circumstances surrounding this tragic evening.   It is clear that the petitioner presented his own testimony and others in an effort to advance the defense that Mr. Aviles was operating under some type of emotional disturbance, contributed in part by having consumed marijuana laced with formaldehyde referenced in the trial as “dust,” and the petitioner did, in fact, at trial in the underlying criminal case present corroborating criminal witnesses in this regard.

That notwithstanding, the petitioner admitted to his attorney, presumably, and certainly in court at trial before a jury and in court here today, that he was involved in the drug trade, had gotten into a dispute over the sale of a piece of rock cocaine.

There was a dispute about the price of that particular rock, the purchaser wanted to purchase it for $12 versus the asking price of 20.   An altercation ensued, Mr. Dixon apparently intervened, and there was a physical altercation between Mr. Dixon and Mr. Aviles.   At the time in 2001, apparently Mr. Aviles was of much slighter build then he is today, weighing approximately 130 or thereabouts.   Mr. Dixon, it's conceded, was a much larger individual.

After this altercation, which actually involved a number of acquaintances of Mr. Aviles, Mr. Aviles ran from the scene and obtained, from a location, a pistol.   He obtained that pistol with the intent to return to the scene and potentially use it with Mr. Dixon.   Even accepting Mr. Aviles' testimony in this regard, it was clear that Mr. Aviles wanted the pistol and employed it for purposes of attempting to appear stronger or more powerful.

In review of Mr. Aviles' own testimony, he apparently fired the pistol in the direction of Mr. Dixon, with fatal consequences resulting.   There was no indication on the part of Mr. Aviles today or at trial that Mr. Aviles was facing deadly force prior to the use of the pistol.

At trial in the underlying criminal case, Dyenne Martell testified that Mr. Aviles approached Mr. Dixon with the gun, firing it into his chest, and then fled.   And Mr. Aviles fired that gun without any apparent provocation.   Words were exchanged, racial epithets and the like, but nothing, again, arising to any kind of deadly force or threat on the part of Dixon against Mr. Aviles.

With regard to the first claimed issue, it's clear that Mr. Channing, the attorney, was apprised of all of the circumstances involving the event.   He investigated the event.   He employed the services of a public defender.   He did communicate with his client about wanting to know the identity of any witnesses who could assist Mr. Aviles.   Mr. Channing utilized his investigator to meet with Madelyn Quintana.   And this is spilling over now into Claim B.

Mr. Channing, himself, met with Madelyn Quintana.   Mr. Channing concluded that Ms. Quintana was only relevant on the issue of the police entry without a warrant into the premises at Cassett (phonetic ) Street or Cossett Street, where Mr. Aviles was after police had been searching for him for a period of time.

As is noted in the Supreme Court decision, it was not clear at trial whom the identity was of the female who permitted entry into the premises, whether it was Ms. Quintana or whether it was someone else.   In any event, it's clear that Mr. Channing investigated the circumstances of this homicide and communicated with Mr. Aviles about anyone who would come to his assistance.

This Court finds an absence of any deficient performance on the claim of failure to communicate.   What's more, on the issue of prejudice, there's been no evidence presented that had Mr. Channing communicated in some way differently, or at greater length, or in some other fashion, any better result then obtained, or different result then obtained following a full trial on the merits before a jury would indeed result.

This Court makes a finding that Mr. Channing was not deficient with respect to communicating with his client.   This Court finds that he did conduct aggressive cross examination of the witnesses at trial, pursued a motion to suppress the statements made by Mr. Aviles.   It is notable that Mr. Aviles made a number of inculpatory statements, not only to the police, but also to others present, including Ms. Quintana, and individuals in the jail that were referenced in the factual recitation by Justice Borden.

So it was a very strong case for the prosecution in that it wasn't a question of who-done-it.   Mr. Aviles admitted the act.   There was a question of the mental state or the mind state of Mr. Aviles at the time he fired the weapon.   Indeed, the record is clear, both at trial in the underlying case and also here, that Mr. Aviles assisted the police in locating the weapon and the weapon itself required some alteration with a nail in order to be fired.

It is clear from the testimony that the use of the weapon and putting a bullet in the chamber, which took some effort, all constituted volitional contemplative acts.   In addition, the disagreement or haggling over the drug sale and the price also included a degree of mental evaluation or contemplation, both of which certainly contradicted the claim of extreme emotional disturbance sought to be advanced by Mr. Aviles at trial.

There is no testimony upon which the Court can conclude-Excuse me.   There is insufficient evidence upon which this Court can conclude there was ineffective communication.   For that reason, the claim in Paragraph 7A fails.

With regard to the claim of 7B, that counsel failed to locate and speak with Madelyn Quintana, the short answer to this claim is that the Court accredits the testimony of Mr. Channing that he did personally speak with Madelyn Quintana and, in fact, employed his investigator to speak with Ms. Quintana.

He chose not to present Ms. Quintana at trial and Mr. Channing could not recall specifically today precisely why he did not call Ms. Quintana, but having not called her in his defense, he infers there was a reason or cogent reason to refrain from calling her.

He recalls her having a series of potential issues living in what he described as the poor section of Waterbury.   Mr. Aviles, himself, testified that Ms. Quintana was present when Mr. Aviles admitted shooting Mr. Dixon.   So, indeed, as with any issue or witness, Ms. Quintana may have presented some negative consequences if presented by the defense.   Claim 7B does not prevail.   The Court finds insufficient evidence on that claim.

With regard to 7C, the claim that counsel failed to object to the full playback of the testimony of Dyenne Martell.   This Court read the entirety of the testimony of Dyenne Martell, as well as the portion of the transcript in evidence which the Court had the benefit of, which transcript which is Petitioner's 5 and 6, which reflects the following.

On April 8, the jury passed a note asking for the playback of a number of witness testimony.   At page 62 it's clear the jury wanted the following.   Quote, “We want to hear Dyenne Martell's direct testimony, specifically when the defendant crosses the street after the initial fight.   Two, also Mr. Aviles' statement as testified to by Detective Pelosi.   Three, also Frankie Diaz's testimony in its entirety, and four, also the defendant's testimony in its entirety.”

It is notable that Mr. Diaz was one of a number of individuals who testified for the state who were present, either prior to, or at the time of the alleged shooting.

As a result of this request, there was a request and discussion after the testimony of Frankie Diaz was played for the jury, it was a clarification note if you will, where the jury came back with a second note saying that they wanted to hear Dyenne Martell's testimony beginning at the point where she cleaned the victim's wounds at the barber shop, head wound, and on that note the jury had crossed out Detective Pelosi's testimony.   The Court inferred that, and the parties agreed, that the jury had decided it did not need to hear Pelosi's testimony.

The jury was excused late in the day and called back the following day on April 9, at which point, the Court, Judge Hartmere-and this was a trial before Judge Michael Hartmere-the Court took up the issue of the testimony and Dyenne Martell's testimony was indeed played back, so much of the direct testimony as was requested, and the entire testimony of the petitioner, Jose Aviles, was played back.

Following that, there was objection to the entire testimony of Martell having been played.   I should say the entire direct.   And Mr. Channing then asked for the cross examination to be played and that request was denied.   And although Mr. Channing says it was a mistake for him-at page 3 on the proceedings of April 9, which is Petitioner's 6-it was a mistake for him not to have requested or objected to the reading of the direct only the day before, the Court proceeded to not challenge the propriety of reading the testimony.

The short version in review of this claim is that the petitioner is arguing, in essence, that he is prejudiced by counsel's failing to object to the direct being played back with respect to Dyenne Martell.   Suffice to say that had Mr. Channing objected, this Court finds that no reasonable jurist would have granted or sustained any such objection.   The jury has within its province to request readbacks, playbacks, and there would be no legal basis to sustain such an objection.   Indeed, this Court views it as reversible error had the Court done so.

In addition, in as much as the jury made clear on two notes its desire to hear only the direct examination and from a particular point in time, that the Court was not required to play back the cross examination of Martell.

This Court can find no prejudice in any claim that Mr. Channing failed to object to the admissibility of the direct testimony of Martell on the playback.   The Court recognizes that the Court heard the testimony of the witness, herself, as related in the transcript in the state's case-in-chief.

It is clear from the testimony that it is very graphic and particular testimony regarding the circumstances of what transpired prior to the gun going off.   Ms. Martell describes her recollection of the events as clearly seeing Mr. Aviles holding the gun, firing it, hearing what she described as a firecracker, and then Mr. Martell-excuse me-Mr.   Dixon collapsing and eventually receiving aid from Ms. Martell.   Ms. Martell, she said-concluded that she could see in the eyes of Mr. Dixon that he was afraid because he, Mr. Dixon, knew he was dying.   It was indeed graphic testimony.

This Court can find no deficient performance on the part of Mr. Channing for failing to try to block, essentially, the playback of the witness's testimony.   As already indicated, there is no prejudice, even assuming there would be some type of deficient performance in as much as the jury already heard the testimony on direct.   The Court finds insufficient any evidence with respect to the allegation in 7C.

It is noted that upon conviction, Judge Hartmere ordered a presentence investigation to be prepared.   And the Court did also take judicial notice of the decision in State versus Aviles, which is a memorandum of decision by a sentence review panel, including Judges Miano, Espinosa, and O'Keefe dated September 25, 2007, wherein the Court reviews the sentence by the trial Court, Judge Hartmere, in the amount of fifty years to serve on the charge of murder, and five years to serve on the possession of a pistol, concurrent, for a total effective sentence of fifty years.

This Court would also note that before this habeas Court is the trial of the case without the actual charge to the jury or the voir dire, but there is a section in the transcript on April 9, Petitioner's 6 at page 6, where the Court, Judge Hartmere, in review of some of the proposed charges states the following at line commencing 11.  “Under the definition of murder, found at 53a-54a(a) it reads, a person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person except-I'm reading what pertains here-except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this section shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

Suffice to say, it's this Court's understanding that Judge Hartmere gave that instruction, along with a number of other instructions, and it's clear from the evidence in the record that there was sufficient evidence, overwhelming evidence, to establish guilt for the charges of murder and criminal possession of a firearm, for which the petitioner stands convicted, sentenced, and incarcerated.

The petitioner had a full trial on the merits before a jury, presented a defense, testified himself, advanced a defense of extreme emotional disturbance.   There's nothing to suggest that the integrity of the process on the part of his attorney or the trial was flawed, or that this Court should necessarily conclude there was manifest injustice by virtue of the substance of the trial, or Mr. Channing's representation of Mr. Aviles.   If the Court so found, the Court would be inclined to grant relief.

This writ of habeas corpus is considered the Writ, the Great Writ, so-called, because it is asking the Court for extraordinary relief, to put the petitioner back into a pretrial status, or in some instances Courts in my position are asked to modify a sentence previously imposed.   It is noted that the Sentence Review Panel left intact the sentence imposed by Judge Hartmere.

This Court is not inclined to grant relief under the circumstances here in the strength of the state's case and also the apparent record of a full defense on the part of Mr. Aviles' attorney.   So in all respect, the petition for writ of habeas corpus is denied.   Judgment shall enter in favor of the respondent.

I am requesting a judgment file be prepared within thirty days should the petitioner wish to appeal.   I'm also requesting the clerk prepare notice of appeal rights.   The record shall reflect the marshal is serving those notices to counsel at this moment, and also Mr. Aviles.   With that, this matter is concluded.

Again, I do want to thank both counsel and Mr. Aviles.   I am requesting that a transcript of this on-bench ruling be prepared for my signature.   It shall constitute a memorandum of decision.   With that, this matter is concluded.   Court stands adjourned till 10:00 a.m. tomorrow morning.   Thank you.  (At which time, this matter was concluded.)

Nazzaro, John J., J.