Travis Wright v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

MEMORANDUM OF DECISION

THE COURT:  Thank you, counsel, for helping the court with these issues.   I'm gonna ask everyone's indulgence for about fifteen minutes.   I do have a decision that I'm prepared to enter from the bench now.

I have considered all of the evidence in the case-the exhibits, the testimony.   I've considered the arguments of counsel.   And for the following reasons that I will detail, petition for a writ of habeas corpus is denied.

The first claim of the petitioner is that the confession should not have been admitted under the corroboration rule of State v. Hafford.   In Hafford, the court abandoned the corpus delicti rule and adopted the less demanding trustworthiness rule requiring substantial independent evidence to establish the trustworthiness of the defendant's confession.

Here, the discovery of the body in the general area that the petitioner described and the medical report showing wounds exactly in the area stated by the petitioner in his confession established sufficient trustworthiness to admit the confession.   So, although no new evidence was found after the confession-a point emphasized by Mr. Kirschbaum-this is not a case of an uncorroborated confession.

The confession was corroborated.   Therefore, claim 1 is denied.

Claim 2. Part of claim 2 alleges ineffective assistance of counsel for failure to raise the corroboration claim and to request jury instructions related to that.   Because there's no merit to the corroboration claim, there is no ineffective assistance related to it, including requesting a jury instruction.

I will point out, however, that the court did instruct, at the conclusion of the case, as follows.   The defendant has raised questions concerning the trustworthiness-or, excuse me, the truthfulness of the confession.   I'm paraphrasing slightly.   The state argues that you should find it reliable.   You should give such weight to it as you feel it deserves.   It's a brief instruction but there was some instruction on the confession.   But because there's no merit to the corroboration claim, those portions of claim 2 that focus on it are denied.

Claim 3 alleging ineffective assistance of appellate counsel is denied.   There was no evidence presented in this trial concerning the appeal.   But, in any event, there was no obligation of appellate counsel to raise the corroboration issue because there is no merit to it.

I will now turn to those other aspects of claim 2 alleging ineffective assistance of counsel.   Aside from the corroboration claim and the actual innocence claim that I'll address at the end, the petitioner's claims merely challenge trial counsel's strategy in contesting the confession.   This is not a case in which trial counsel missed the key issue.   Moniz filed and vigorously pressed a motion to suppress, even calling Dr. Leo as an expert on false confessions, which was unusual for that time ten years ago in our legal history.   Mr. Moniz then made his main theory of defense at trial to be that the confession was false.   What the petitioner is doing now is launching highly technical attacks on the precise strategy that Moniz employed in raising this issue.

Moniz emphasized, as I will detail shortly, the petitioner's apparent mental retardation.   The petitioner now says that he should have, instead, emphasized his spatial observation deficits.   Moniz claimed that the officers essentially planted the words in the petitioner's mouth, perhaps intentionally.   Petitioner now claims that Moniz should have instead argued that the officers unintentionally did so.

These arguments do not establish ineffective assistance of counsel.   They certainly do not prove that counsel was not providing valid representation to the petitioner.   Instead, they merely constitute attempts to second guess counsel's trial strategy given that counsel's efforts eleven years ago did not succeed in getting a complete acquittal, although they did succeed in getting a lesser included offense verdict of manslaughter.

The petitioner's attempt to improve on trial counsel's arguments by suggesting technical revisions of them are improperly conceived based on combing through the record with the benefit of twenty-twenty hindsight.   When trial counsel's efforts are viewed more properly from his perspective at the time, it is clear that there is no ineffective assistance of counsel in this case.

I'll now address the more specific claims of ineffective assistance of counsel essentially in groups.

The first main claim is that trial counsel should have retained an expert similar to Dr. Kapur and called similar expert at trial.   I would note that there was some evidence of the petitioner's spatial deficits in the school records that was admitted before the jury, although admittedly this was not emphasized.   But more important, the diagrams that were used by Officer Holt were quite simple.   And Officer Holt testified credibly that the petitioner understood them.   So there was very little basis to hire an expert on this point.

Second, in relation to these claims, the petitioner confessed to this murder before making the diagram of the homicide.   So the diagrams were not the critical part in the petitioner's interrogation.   The confession had already come out.   Then, after the petitioner did participate with Officer Holt in making the diagram, the petitioner went to the crime scene with the police.   Petitioner-and gave them additional evidence in that way.   Then the petitioner gave a written statement.   So the diagram was only one part of the incriminating evidence that the petitioner gave to the police.

And I did mean to add with regard to my first point that the diagrams were quite simple and Officer Holt testified credibly that the petitioner understood them-that even Dr. Kapur admitted that the petitioner could explain verbally where things were and that was part of how Officer Holt used the diagram with the petitioner.

Third, with regard to these group of claims, in mounting a defense that the confession was untruthful, Mr. Moniz emphasized the petitioner's low intellectual ability.   This was a strategic decision to emphasize this and not other deficits.   So, for example, during closing arguments there were repeated efforts-references, rather-by Mr. Moniz to the fact that the defendant was a seventeen-year-old mentally retarded boy.

Continuing on in closing argument-page 48 of the 11-21 transcript-after making this sort of-developing this sort of theme, Mr. Moniz does suggest that diagram 2, “reflects precisely what Officer Holt knew about what happened.”   So contamination was argued in that regard.

On page 49 with regard to diagram 3, Mr. Moniz argued, “Who drew this?   Whose picture is this?”  “This is Officer Holt's drawing;  his suggestion to Travis of what happened.   And Travis merely filled in some spots as he circled in the diagram.”

So counsel did emphasize the point that the petitioner was vulnerable and led by the officer to fill out the diagram in an incriminating way, which is precisely the ultimate point that the petitioner claims should have been brought out.   Counsel, however-trial counsel, however, simply emphasized the petitioner's apparent mental retardation rather than his spatial deficits, which was a reasonable choice given the fact that mental retardation would be understandable to the jury and would explain not only the diagrams but the whole confession.   Present counsel is simply second guessing trial counsel's strategy by attempting to fine tune trial counsel's argument with the benefit of perfect hindsight.

With regard to the claims that trial counsel should have retained someone like Dr. Leo to testify at trial and argued the theory of unintentional contamination.   First, it should be noted again that Mr. Moniz did call Dr. Leo at the hearing on the motion to suppress, which was certainly perhaps, shall we say, ahead of his time in the year 2000-or 1999.

And Dr. Leo did testify generally about false confessions, coercion, inducements, and he testified specifically in the suppression hearing that the confession in this case was unreliable.   At trial counsel did present a false confession theory.   He relied on factors such as the petitioner's low IQ, improper inducements, the length of time of the interrogation, petitioner's youth.   And, at least according to Mr. Moniz' testimony, he did try to show contamination.

At trial, further, Mr. Moniz did try to show that the confession was untrustworthy because it was not corroborated.   He produced three experts-one concerning blood alcohol levels;  one, I believe, concerning the timing of the killing;  and one concerning the position of the victim and the blood evidence, to establish that the confession was untrustworthy, unreliable, and unbelievable.   Failing to add another factor of inadvertent contamination is simply second guessing strategic decisions concerning what is most important for trial counsel to bring out.

Second, with regard to the theory of unintentional contamination and Dr. Leo's testimony, there was, in fact, no factual basis for-or clearly an insufficient factual basis for an argument of inadvertent contamination in this case.   There was no evidence of inadvertent contamination.   Sergeant merely introduced the topic of a stabbing in the south end, but it was the petitioner who supplied the street names.

Officer Holt's testimony, which I credit, was that petitioner volunteered the information.   And Officer Holt himself knew little about the homicide and could not have supplied information in that confession.   The trial court and the appellate court found that the atmosphere of the petitioner's confession was not improperly stressful.   There was no police coercion.   The police were attentive to the petitioner's needs.   In addition, the petitioner himself was savvy and clever.   He invoked his right to silence.   He asked what the police could do for him.   He was familiar with the legal system.   Despite some deficits, the petitioner was not a fool.   He decided to lie about Mr. Cook at first and then discovered that he could not get away with it.

The petitioner was wrong in several respects with regard to the way in which-or at least the location of the body and perhaps with the way in which-the victim's body and the way in which the victim was killed.   But this shows that the police did not put words in the petitioner's mouth and negates the theory of even unintentional contamination.

Third, the theory of unintentional contamination, I believe, is essentially a novel one that counsel is no-is under no obligation to present.   The case law states that numerous state and federal courts have concluded that counsel's failure to advance novel legal theories or arguments does not constitute ineffective performance.   See, for example, Ledbetter versus Commissioner of Correction, 275 Conn. 451, 461-62, cert. denied, U.S. Supreme Court two thous-the decision was in 2005.   Cert. denied, U.S. Supreme Court 2006.

Similarly, with regard to Dr. Leo's testimony, the notion of presenting a false confession expert, particularly in 1999 or 2000, was a novel one and counsel is under no obligation to present that sort of novel theories to avoid being found ineffective.

Furthermore, at that time and still today there is no appellate court decision in Connecticut approving the admission of false confession expert testimony.   And it is more than likely that the trial court would have found it not admissible in front of the jury although he did consider it at the court hearing on the motion to dismiss.

So I find no ineffective assistance of counsel with regard to the unintentional contamination claims and the claims concerning Dr. Leo.

The other claims of ineffective assistance are denied because no evidence or no new evidence was produced to support them.   Therefore, I find no ineffective assistance of counsel.

Finally, with regard to actual innocence, I deny the claim on the ground that the petitioner has presented no newly discovered evidence and under the case law by which I am bound, newly discovered evidence is a requirement of an actual innocence claim.   Therefore, the petition for a writ of habeas corpus is denied.   Petitioner's counsel shall prepare a judgment file within thirty days.   The court reporter is ordered to produce a transcript of the decision which shall serve as my memorandum of decision.   And the petitioner is entitled to be advised of his right to appeal.

Is there anything further you have to do with that now, sir?

ATTY. KIRSCHBAUM:  No, Your Honor.   I will file all the necessary paperwork promptly.

THE COURT:  Very good.   All right.   I thank counsel for their professionalism.   We'll stand adjourned.

Schuman, J.

Schuman, Carl J., J.