Roshun C. Jones v. Warden, State Prison (2009)

(EXCERPT:  DECISION OF THE COURT)

THE COURT:  All right.   The following will constitute the decision of this Court.

It's important to note at the outset that a petitioner in a habeas corpus action does not enjoy the same privileges and protections as a defendant in a criminal case.   A habeas corpus proceeding is not a criminal proceeding, it's a civil proceeding.   And where the person accused of a crime is entitled to a presumption of his or her innocence, the person in a habeas corpus petition is not.   The presumption of innocence does not outlast the judgment of conviction at the trial.   In the eyes of the law then the petitioner doesn't come before this Court as one who is innocent, but on it contrary, as one who has been convicted by the due process of law.   And that's why in a habeas corpus petition the burden justifiably rests upon the petitioner, not upon the respondent.

A habeas petition is also not a substitute for an appeal.

Now, I have reviewed all of the evidence in this case.   I've listened to the testimony.   And I've also read very carefully the recent three years, four years now of the Appellate Court decisions in this matter.   Despite arguments by counsel it is clear that the petitioner was the proximate cause of this accident.   And as the Appellate Court has found, he was appropriately found guilty of these crimes by the jury.

Much of the argument in this case seems to address an opinion that the jury was wrong.   Well, be that as it may, the jury rendered it's verdict on the basis of the evidence presented to it and that was upheld on appeal, and this Court will not overturn that.

Nevertheless, if there were important evidence not presented to the jury as a result of actions of the trial defense counsel then the jury may have gotten it wrong, not because they were wrong based on the evidence, but because they may be wrong because they didn't hear all the evidence.   And the problem with this case from the petitioner's point of view is I heard nothing at all that would allow this Court to conclude that there is anything that the jury should have heard and would have made a difference even if they heard it.

Now, in a nutshell, there were only two witnesses that testified in this case.   One was the retired police officer Morris Remilard whose testimony was of minimal to no value except he indicated that if he didn't put in the statement that Miss Budreau said there were two cars it's because she didn't say it.   The inconsistency between her trial testimony and the written statement given to the police department was brought out at trial.   The jury was aware of that inconsistency.   Miss Budreau denied that there was an inconsistency because her testimony was that she in fact did tell the police that there were two cars.   That's as far as it would have gone.   A question posed to Officer Remilard asking if Miss Budreau had made the statement that there were two cars to him in essence the testimony he gave in this court would not have been admissible.   It would have constituted extrinsic evidence.   So even if it is deficient performance on the part of Attorney Bergman not to call Mr. Remilard and ask this question there is no prejudice because that evidence wouldn't have come in anyway.

The other witness in this case was Attorney Bergman.   And he was questioned intensively as to why he said certain things, made certain objections, didn't make other objections.   Now, it's particularly worth noting this warning from the Strickland vs.   Washington Court.  “Judicial scrutiny of counsel's performance must be highly deferential.   It's all too tempting for a defendant to second guess counsel's assistance after conviction or after sentence.   And it's all too easy for the Court examining counsel's defense after it is proved unsuccessful to conclude that a particular act or omission of counsel was unreasonable.   The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges.   Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second one;  this one of counsel's unsuccessful defense.

Counsel's performance and even willingness to serve could be adversely affected.   Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discouraging the acceptance of assigned cases and undermine the trust between attorney and client.”

That warning appears to apply wholeheartedly to this particular case.   Because that's precisely what has been going on here.

Mr. Bergman did in fact have a theory of defense that he presented to the jury, a theory of defense that was developed along with and as a result of statements by Mr. Jones himself and that theory was that Mr. Jones was not racing, that a tragic accident happened.   Two people lost their lives, but the real tort feasors were Mr. Waydler and Mr. Langley.   Now the defendant was disliked by the police in Canterbury because of his race, his social problems and other difficulties.   Mr. Waydler killed himself so the police lashed out in anger, grabbed the defendant and tried to punish him instead.   It's a theory based in good faith upon what the defendant and what the petitioner and his passengers told them took place.   It is a theory that turned out to be ineffective because the petitioner was convicted.   It's not an unreasonable approach.

Based upon the evidence presented in this case this Court cannot conclude that there is any reasonable probability that the trial result would have been different based upon what this Court has heard.   This Court is convinced that the defense of abandonment would not have succeeded.   Further, this Court is convinced that any motion for mistrial in regard to statements by Mr. Chipperfield would not have been granted.   In fact, the statement attributed to Mr. Waydler had there perhaps in a different court would have been admitted as a statement against penal interest.

Even if all of the acts complained of by Attorney Bergman are found to be deficient performance, and they're not, but even if they were, the second prong of Strickland requires the showing of prejudice.   And there is no evidence before this Court that would allow this Court to conclude that anything Mr. Bergman did in any way prejudiced the defense of this case.

I can understand the position of the petitioner in feeling that he's been unfairly singled out for punishment in this case.   He did receive the maximum sentence.   He was not directly involved in the collision.   To the extent that these matters have any merit, the place for that to be pursued is with sentence review and that was the first thing that was done this morning.   Sentence review is restored.   So you will have a right to file for sentence review.

But I have no other choice but to deny the petition as to count one.   And judgment in favor of the petitioner as to count two as per the stipulated judgment.   And, Madam Clerk, you may serve the appeal papers on the petitioner.

(The clerk handed papers to the petitioner.)

All right.   Good luck to you, Mr. Jones.   You will take him downstairs if counsel wants to talk to him.   Good luck to you, sir.   You're still relatively young.   I hope you get your life together.

Anything further?

ATTORNEY MASI:  No, your Honor.

ATTORNEY BOURN:  No, your Honor.

THE COURT:  Court is adjourned.

(At this time court was adjourned.)

Honorable Stanley Fuger, Judge

Fuger, S.T., J.