James Gardner v. The Warden, State Prison (2010)

MEMORANDUM OF DECISION

MEMORANDUM OF DECISION

I am able to decide this from the bench.

For the following reasons the petition for writ of habeas corpus is denied.

The first group of claims concerns or alleges ineffective assistance of trial counsel, who was Donald Cretella.

In general, in this regard, according to the Connecticut Supreme Court and the U.S. Supreme Court, judicial scrutiny of counsel's performance must be highly differential.   It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence and it is all too easy for a court examining counsel's defense after it has proved unsuccessful to conclude that a particular act or omission of counsel was unreasonable.   A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, the court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that under the circumstances the challenged action might be considered sound trial strategy.   Quoting from Bryant v. Commissioner of Correction, 290 Conn. 502 at 512 to 13, cert. denied by the U.S. Supreme Court in 2009, quoting Strickland v. Washington, 466 U.S. 668 at 689, 1984.

The main claim of the petitioner as to the ineffective assistance of trial counsel, Donald Cretella, seems to be that Mr. Cretella did not advance a defense of intoxication.   I think we can agree that Mr. Cretella was partly wrong in his testimony when he stated that intoxication would not at all play into the case because these were all general intent crimes.   It is true that burglary is a specific intent crime and intoxication could be a defense to the element of specific intent.   However, I do credit Mr. Cretella's testimony that the petitioner did not mention that he was intoxicated or high on drugs in their various meetings.   I do not credit the petitioner's testimony that he told Mr. Cretella this at all or that he told Mr. Cretella this just once;  that would not have made any sense if he was truly high on drugs at the time and did not know what he was doing at the time.   In general, the petitioner's testimony was rambling, vague, at times incoherent, and I do not credit it.

Further, the petitioner has presented no corroboration, whether lay or expert, for the petitioner's claims that he was intoxicated or high on drugs at the time.   At most in any event, intoxication would only be a defense to a burglary charge and would not have been a defense to, as Mr. Cretella correctly states, to the general intent crimes of possession of a firearm by a convicted felon, risk of injury.   I'm not sure what subsection of assault was charged.   If it was a non-intentional assault, intoxication might not have been a defense to that, but clearly it was not a defense to criminal possession of a firearm and risk of injury.

Furthermore, trial counsel, Mr. Cretella, reasonably decided that his strongest defense was reasonable doubt as to whether the petitioner committed this crime and this was, in fact, a complete defense, if successful, and much better than a partial defense of intoxication.

Further, an intoxication defense might have hurt the petitioner's case by essentially conceding that he was in the second-floor apartment at the time of this incident and essentially establishing his presence at the scene of the assault on Tatiana Madison.   As trial counsel also brought out, clearly his admission to intoxication or being high on drugs would have also have hurt his violation of probation defense.

So, there was no evidentiary basis for an intoxication defense and there were valid strategic reasons for not raising it in this case and, therefore, there was no ineffective assistance in that regard.

Of the various specifications of ineffective assistance of counsel in the amended petition, there was evidence of only a few of them.   I will discuss those.

There was some testimony concerning the hiring of a private investigator, things that are alleged in subparagraphs B and C of the ineffective assistance of counsel claim.

In this case Mr. Cretella took the highly unusual and highly professional step of petitioning the court to hire a private investigator in the case even though Mr. Cretella was privately retained.   This is certainly to Mr. Cretella's credit.

The private investigator spoke to the key witnesses, who were available, and no evidence has been brought forth in this trial as to anything that any of them would have said that was either not brought out at trial or that would have helped-and that would have helped the petitioner.   Except with regard to Mr. Vasquez, who I'll get to, the petitioner has failed to show what benefit additional investigation would have revealed.   See Holly versus Commissioner of Correction, 62 Conn.App. 170 at 175, 2001.

With regard to Mr. Vasquez, I find based on the evidence that he could not have been reasonably located at the time that Mr. Cretella got in the case because at that time essentially Mr. Vasquez was living underground from house to house, essentially attempting to evade detection because of his lifestyle and illicit activities.   But even now that Mr. Vasquez has been located, he did not at all corroborate the petitioner's theory that we heard testimony about that he and Ms. Madison collaborated to fabricate the charges against the petitioner to get him out of the picture.   Certainly there was no evidence as the petitioner alleges in subparagraph C of the claim that finding Mr. Vasquez would have revealed that Mr. Vasquez did not flee when he heard the petitioner coming after Tatiana, but rather remained in the second-floor apartment and witnessed David Benson discharging the firearm into the bedroom wall.   Mr. Vasquez's testimony was clear that he did flee and did not remain in the second-floor apartment at the time of the gunshots, so there is simply no evidence to support the petitioner's allegation in that regard.   Mr. Vasquez was a convicted felon and a drug dealer and certainly would not have made a good witness based on that at the time.

So, for all these reasons there was no prejudice at all to the petitioner's case from any failure to locate Mr. Vasquez, which I have said in any event, was reasonable given Mr. Vasquez's desire to remain hidden from the world.

The only other claim for which there is some evidence is subparagraph E, which alleges that trial counsel should have asked the ballistic expert as to whether the plea should have tested everyone present for the presence of gunshot residue.

In general, questions concerning or claims concerning trial counsel's questioning of witnesses fail because those are matters of trial strategy for trial counsel at the time and in these sort of cases where claims of this nature are made, it's simply second-guessing trial counsel with the benefit of hindsight.   But in any event, Mr. Cretella had good reason not to question the expert why a police officer wouldn't have done gunshot residue tests on everyone because, obviously, there was a concern that a gunshot residue test to the petitioner might have supplied the scientific evidence that was otherwise missing in this case of simply eyewitness testimony and certainly hurt the petitioner's case in that regard.

So, counsel was not ineffective with regard to that aspect of the trial.   There's no evidence of any of the other grounds of ineffective assistance of counsel, so I find in conclusion that the petitioner has not proven his claims of ineffective assistance of trial counsel.

With regard to ineffective assistance of appellate counsel, it's hard to understand what the petitioner's claim is here.   In the petition the petitioner argues that appellate counsel failed to discuss with trial counsel the effect of the late filing of the threatening charge on trial counsel's defense strategy as it pertained to the issue of intoxication and its effect on the formulation of intent.

Reading the appellate counsel's appellate brief, and the appellate counsel is Deborah Stevenson, one does see that she did argue that the late filing of the threatening charge did prejudice the petitioner's case, not so much in terms of late notice, but that it allowed in evidence of the shooting, which was highly inflammable evidence.   So, appellate counsel did argue the issue of prejudice, particularly on Pages 14 to 17 of her appellate brief.

In any event there's no showing here whatsoever in this trial what would have been gained by talking to Mr. Cretella about this issue.   There is no evidence of how such a conversation would have enlightened appellate counsel concerning the defense of intoxication and intent.   Mr. Cretella was not asked about this.   In any event Mr. Cretella did not know of any evidence of drug or alcohol intoxication, and it's inconceivable how any conversation on that issue could have enlightened appellate counsel.

Appellate counsel read the full trial transcript, as she testified, and so was fully aware of what the record revealed with regard to the issue of prejudice and she was limited to that record in arguing matters on appeal, so there was no particular reason to talk to trial counsel.

Finally, the Appellate Court on Page 51 of its decision, which is reported at 96 Conn.App., 42, 2006, did state after it had reviewed the briefs and records, and I quote:  There is no indication from the record that the defendant claimed in the trial court any surprise or prejudice to his defense as a result of the state's preliminary request to charge.   And it was the preliminary request to charge that first apparently mentioned that the specific crime that the petitioner intended to commit during the burglary was threatening.   So, the Appellate Court has clearly stated that there is nothing in the record to support a claim of prejudice from the state's notice that threatening was the crime the petitioner intended to commit therein, and therefore, there is nothing that petitioner's appellate counsel could have argued on appeal to support that claim.   And the petitioner here in court has not identified anything in the record that appellate counsel should have briefed that would show how petitioner was prejudiced by the state's pretrial disclosures concerning threatening.

Therefore, I find no evidence whatsoever that appellate counsel was ineffective in the manner alleged or in any other manner.

The final claim is that of actual innocence.   An actual innocence claim requires that the petitioner establish by clear and convincing evidence that taking into account all of the evidence, both the evidence deduced at the original criminal trial and the evidence deduced at the habeas corpus trial, he is actually innocent of the crime of which he stands convicted.

Second, he must also establish that after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.

In addition, under binding Appellate Court precedent, claim of actual innocence must be based on newly discovered evidence which is defined as evidence that could not have been discovered prior to the commissioner's criminal trial by the exercise of due diligence.   See Johnson v. Commissioner of Correction, 101 Conn.App. 465, at 470-71, 2001.

In this case even if the testimony of Mr. Vasquez could be characterized as newly discovered, it does not cast doubt on the reliability of the petitioner's conviction.   At most, Mr. Vasquez saw someone else outside the building with a gun;  they could have been the petitioner's companions, and this testimony is not necessarily inconsistent with the evidence that the petitioner used the gun inside the apartment.   Mr. Vasquez did not see who used the gun inside the apartment.   He was a drug dealer with numerous prior felonies and, thus, his testimony was subject to question.   Therefore, his testimony would not have established or contributed to establishing by clear and convincing evidence that the petitioner is actually innocent of this crime.

With regard to Ms. Benson's testimony, I do not credit her testimony that-her exculpatory testimony because she has essentially recanted it, which makes it inherently suspect.   At trial she testified that the petitioner shot a gun.   Her change of heart is not really newly discovered evidence, but simply the product of a series of leading questions by petitioner's counsel and her own unwillingness on her part to take responsibility for her own actions and testimony.   In any event I do not find by clear and convincing evidence that the petitioner is actually innocent of this crime.   At least five people testified at trial that the petitioner either had a gun or shot a gun inside the apartment and the petitioner has produced no credible evidence to refute that testimony.   Therefore, the actual innocence claim is rejected and the petition for writ of habeas corpus is denied.

I'll order the petitioner within thirty days to file a judgment file in this case and I'll also indicate that my oral decision, when transcribed and signed, will be the memorandum of decision in this case.   And the petitioner has been given notice of his right to seek certification to appeal.

Is there anything else that needs to be done?

ATTY. VISONE:  No. Thank you.

ATTY. MARIANI:  Nothing further judge, Thank you.

THE COURT:  All right.   I thank counsel for their professionalism and courtesy in bringing this matter to trial today.

Stand adjourned.

Schuman, J.

Schuman, Carl J., J.