271452 v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

On July 6, 2007, the petitioner, Tommie Martin, filed a petition for a writ of habeas corpus, which was amended on April 28, 2010, and again on April 30, 2010.   On November 22, 2010, the petitioner withdrew count one, proceeding only on the remaining claim in count two, a claim of ineffective assistance of trial counsel.   In count two, the petitioner claims that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut in the following ways:  counsel failed to adequately cross-examine, impeach, or otherwise discredit Nicole Harris;  counsel presented inculpatory identification evidence through the testimony of Della Mae Brown;  counsel failed to adequately impeach and otherwise discredit Brown;  counsel failed to request an accomplice testimony jury instruction related to the testimony of Harris.   For reasons stated more fully below, the petition is denied.

The matter came to trial on June 22, 2010.   The Court heard testimony from Nicole Harris and Attorney Frank Cannatelli, the petitioner's trial counsel.   The petitioner entered into evidence the trial transcripts, receipts for funds disbursed to Harris while she was in the witness protection program and the certified conviction record of Harris.   The respondent offered the appellate decision in the petitioner's direct appeal.   The parties filed post-trial briefs on November 4 and 23, 2010.

The Court has reviewed all of the testimony and evidence and makes the following findings of fact.

FINDINGS OF FACT

1.  The petitioner was the defendant in a case in the judicial district of Danbury, under docket number CR99-105097, in which he was charged with felony murder in violation of General Statutes § 53a-54c, conspiracy to commit robbery in violation of General Statutes §§ 53a-134a(2) and 53-48 and robbery in the first degree in violation of General Statutes § 53a-134a(2).

2. The petitioner was represented throughout the trial by Attorney Frank Cannatelli.   At the time of trial in 2004, Attorney Cannetelli had been practicing law for sixteen years.   His practice at that time consisted primarily of criminal law.   He had tried a large number of cases in both Part A and Part B by 2004.   The petitioner had been tried on these charges once before, and his conviction was reversed and remanded by the Appellate Court.   See State v. Martin, 77 Conn.App. 818, 827 A.2d 1 (2003).   Attorney Cannatelli had the benefit of the transcripts from the first trial.   He used them in his preparation for trial.

3. After a jury trial, the petitioner was convicted as charged, and the trial court later sentenced him to an effective term of seventy-five years incarceration.

4. The petitioner appealed from the judgment of conviction, which was affirmed by the Appellate Court.   See State v. Martin, 100 Conn.App. 742, 919 A.2d 508, cert. denied, 282 Conn. 928, 926 A.2d 667 (2007).

5. As stated by the Appellate Court, the jury could have reasonably found the following facts regarding the underlying offenses:  “On January 18, 1999, the [petitioner] was with an acquaintance, Nicole Harris, and his cousin, Canton Martin.   With Harris driving, the group stopped at a gasoline station near Gallo's Hi-Way Package Store (Gallo's) in Danbury.   After purchasing gasoline, the group exited the station and parked in front of Gallo's.   The [petitioner] and Carlton Martin went into Gallo's, while Harris stayed in the parked car.   At approximately the same time, two customers also entered Gallo's.   The [petitioner] and Canton Martin returned to the car after a few moments and rejoined Harris.   After circling the block a few times, the [petitioner] and Carlton Martin noticed that the attendant, Robert Gallo, was alone in the store.   The [petitioner] told Harris to ‘slow down’ and that Gallo was ‘in there by himself.’   Carlton Martin told the [petitioner], ‘I have heat on me,’ and the two men went into the store and attempted to rob Gallo.   The [petitioner] and Carlton Martin were unable to gain access to the cash register but took a couple of bottles of liquor from the store.   Before leaving the store Carlton Martin shot Gallo several times in the head, thereby causing his death.”  Id., 743-44.

6. Additional facts will be discussed as needed.

DISCUSSION

The petitioner claims that his trial counsel, Attorney Cannatelli, rendered ineffective assistance by (1) failing to adequately cross-examine, impeach or otherwise discredit Harris;  (2) presenting inculpatory identification evidence through the testimony of Brown;  and (3) failing to request an accomplice testimony jury instruction related to the testimony of Harris.¹

“A criminal defendant's right to the effective assistance of counsel ․ is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution ․ To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.   To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

The petitioner first claims that Attorney Cannatelli failed to adequately cross-examine, impeach or otherwise discredit Harris.   Specifically, he contends that Attorney Cannatelli should have cross-examined Harris regarding her criminal record and the fact that she received money through the witness protection program.

At the habeas trial, Harris admitted that she received approximately $1,373 for food and incidental expenses while she was in the witness protection program.²  She also admitted to having two larceny convictions dating from 1997.   A certified copy of her criminal record indicates that she has a larceny in the sixth degree conviction from March 1997 and a larceny in the fifth degree conviction from April 1997.³

Attorney Cannatelli testified that he knew Harris was in the witness protection program and that he had documents showing that she received funds while in the program.   He believed these documents were introduced into evidence during the criminal trial and that they spoke for themselves.   He also testified that the testimony during the criminal trial clearly demonstrated that Harris was in the witness protection program and that she received aid while in the program, such as being put up in a hotel.   As for her criminal record, Attorney Cannatelli at first could not recall it but later testified that he did not believe he could impeach her with a larceny in the sixth degree conviction.

A review of the transcript of the testimony of Harris at the petitioner's criminal trial reveals that Attorney Cannatelli adequately cross-examined her.   Even though he did not question Harris about her two larceny convictions or the funds that she received through the witness protection program, he impeached her credibility in other ways.   He questioned her extensively regarding the fact that she gave three statements to the police before she told them everything that she knew about the case.   He also questioned her about her agreement with the state whereby in exchange for her “truthful testimony” the state agreed not to prosecute her for her involvement in the offense.  “An attorney's line of questioning on examination of a witness clearly is tactical in nature.  [As such, this] court will not, in hindsight, second-guess counsel's trial strategy ․ The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance.”   (Citation omitted;  internal quotation marks omitted.)  Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).

Additionally, the petitioner has not demonstrated that had Attorney Cannatelli questioned Harris regarding her criminal record and the money she received from the witness protection program there is a reasonable probability that the outcome of his criminal trial would have been different.   While both arguably may have led the jury to question Harris' credibility neither would have completely discredited her.   Notably, Harris had given statements to the police implicating the petitioner in the offense prior to entering the witness protection program.⁴  Moreover, parts of her testimony were corroborated by other witnesses.   For example, Angela Harris, the petitioner's then girlfriend testified that Carlton Martin came to her house in Danbury to pick up the petitioner on the morning in question and that she heard and saw Harris' car outside her house that morning.⁵  Even the petitioner's statement to the police and his prior testimony at his first criminal trial corroborate parts of Harris' testimony.   In his statement to the police, the petitioner stated that Harris and Carlton Martin came to Angela Harris' house on the morning in question but that they left without him.⁶  In his testimony at his first criminal trial, the petitioner similarly testified that Harris and Carlton Martin came to Angela Harris' house that morning but that they left without him, as he had his own transportation, a rental car.⁷  Furthermore, apart from the testimony of Harris, there was other evidence tending to inculpate the petitioner, such as letters written by him while he was incarcerated and Carlton Martin's statement to the police that the petitioner was with him and Harris that morning.⁸  Accordingly, there is no reasonable probability that the outcome of the petitioner's criminal trial would have been different but for Attorney Cannatelli's failure to question Harris on these issues.

The petitioner next claims that Attorney Cannatelli rendered ineffective assistance by presenting inculpatory identification evidence through the testimony of Brown.   Attorney Cannatelli testified at the habeas trial that the petitioner's defense was that he was not present at the crime scene;  that is, that he was not involved in the crime at all.   Although Attorney Cannatelli knew that Brown had identified the petitioner as being present at Gallo's that morning, he believed he could establish reasonable doubt through her testimony, as she had initially identified one of the men she saw at Gallo's that morning as “Poo,” a childhood friend of one of her children, and had described the other man, who she later identified as the petitioner, as a light skinned, Hispanic looking male.   The petitioner is African American.   At the petitioner's criminal trial, Brown testified that she told the police that she saw Poo and a light skinned male at Gallo's on the morning in question and that she saw them together again later that day.   She also testified that after Poo's sister came to speak to her and after a brick was thrown into the car window of her husband's car, she told the police that the person she saw was not Poo. The first time she ever identified the petitioner as one of the men she saw at Gallo's that morning was at the petitioner's first criminal trial and this was after she had seen his photo in the newspaper.⁹

“Judicial scrutiny of counsel's performance must be highly deferential.   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, a 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.”  (Citations omitted;  internal quotation marks omitted.)  Strickland v. Washington, supra, 466 U.S. 689.

Attorney Cannatelli made a strategic decision in calling Brown as a witness at the petitioner's criminal trial.   Her identification of the petitioner as one of the men she saw at Gallo's on the morning of the incident was far from unassailable.   She had initially identified Poo and another man whose description did not exactly match a description of the petitioner as the men she saw at Gallo's.   Attorney Cannatelli believed he could impeach her testimony identifying the petitioner as being present at Gallo's and that he could introduce reasonable doubt regarding the petitioner's guilt through her identification of other men as the perpetrators.   Although this conduct proved unsuccessful, it clearly falls within the wide range of reasonable professional assistance.   In any event, even without Brown's testimony there was more than enough evidence for the jury to have found the petitioner guilty.   Accordingly, there is no reasonable probability that but for this alleged error of Attorney Cannatelli's the result of the petitioner's criminal trial would have been different.

Lastly, the petitioner claims that Attorney Cannatelli should have requested a jury instruction on accomplice testimony related to the testimony of Harris.   “Generally, a defendant is not entitled to an instruction singling out any of the state's witnesses and highlighting his or her possible motive for testifying falsely ․ An exception to this rule, however, involves the credibility of accomplice witnesses ․ [When] it is warranted by the evidence, it is the court's duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if [he or she] assisted or aided or abetted in the commission, of the offense with which the defendant is charged ․ [I]n order for one to be an accomplice there must be mutuality of intent and community of unlawful purpose.”  (Internal quotation marks omitted.)  State v. Moore, 293 Conn. 781, 823-24, 981 A.2d 1030 (2009), cert. denied, 130 S.Ct. 3386, 177 L.Ed.2d 306 (2010).  General Statutes § 53a-8, which defines accomplice liability, provides in relevant part:  “A person, acting with the mental state required for the commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct ․”

Attorney Cannatelli testified at the habeas trial that he did not request a jury instruction on accomplice testimony because he did not consider Harris to be an accomplice.   He explained that Harris could not be an accomplice of the petitioner's since the petitioner denied any involvement in the crime.   The petitioner has failed to demonstrate that Attorney Cannatelli's decision not to request an instruction on accomplice testimony “fell below an objective standard of reasonableness ․” Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002).  “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  (Internal quotation marks omitted.)  Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).   It is far from clear that an instruction on accomplice testimony was even applicable to the petitioner's case, as there does not appear to have been sufficient evidence that Harris was an accessory.   Although she testified that she drove Carlton Martin and the petitioner to Gallo's and that she hid the gun after Carlton Martin gave it to her, she testified that she had no knowledge of what they had done until after the fact.   Accordingly, there was no evidence that she had the mental state required to commit the crimes that the petitioner was charged with committing, i.e., conspiracy to commit robbery in the first degree, robbery in the first degree, and felony murder, which is necessary for her to have been an accomplice to the crimes.

Additionally, the petitioner has not demonstrated that he suffered any prejudice from Attorney Cannatelli's failure to request such an instruction on accomplice testimony.   First, it is not clear that the trial court would have given the instruction had it been requested by Attorney Cannatelli because as discussed supra, there arguably was insufficient evidence that Harris was an accomplice to the crimes.   Second, in his closing argument, Attorney Cannatelli cautioned the jury to carefully review Harris' testimony, highlighting her personal interest in the case, and the trial court gave a general instruction to the jury that it must consider biases of witnesses in weighing their credibility.¹⁰  Lastly, Harris' testimony was not the only evidence that inculpated the petitioner.   As discussed supra, Angela Harris' testimony, Carlton Martin's police statement, the petitioner's police statement and letters written by the petitioner while he was incarcerated also tended to inculpate the petitioner in the charged offenses.   Consequently, there is no reasonable probability that the outcome of the petitioner's criminal trial would have been different had Attorney Cannatelli requested a jury instruction on accomplice testimony relating to Harris' testimony.   See, e.g., State v. Moore, supra, 293 Conn. 825 (considering the following factors in determining whether the trial court's failure to give an instruction on accomplice testimony deprived the defendant of his right to a fair trial:  “whether (1) the accomplice testimony was corroborated by substantial independent evidence of guilt, (2) the accomplice testimony was consistent, (3) the accomplices' potential motives for falsifying their testimony were brought to the jury's attention and (4) the court's instructions to the jury suggested that the witnesses might have an interest in coloring their testimony”).

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is DENIED.   Judgment may enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT

T. Santos, J.

FOOTNOTES

FN1. In his post-trial brief, the petitioner indicated that he “is abandoning the [claim] alleging that trial counsel failed to adequately impeach and otherwise discredit Della Mae Brown.”   Accordingly, this claim will not be reviewed..  FN1. In his post-trial brief, the petitioner indicated that he “is abandoning the [claim] alleging that trial counsel failed to adequately impeach and otherwise discredit Della Mae Brown.”   Accordingly, this claim will not be reviewed.

FN2. See Petitioner's Exhibit [Exh.] 3 (memorandum from the Office of the Chief State's Attorney detailing the amount of witness protection funds expended on Harris)..  FN2. See Petitioner's Exhibit [Exh.] 3 (memorandum from the Office of the Chief State's Attorney detailing the amount of witness protection funds expended on Harris).

FN3. Petitioner's Exh. 5..  FN3. Petitioner's Exh. 5.

FN4. Petitioner's Exh. 2, January 21, 2004 Transcript, pp. 162-70..  FN4. Petitioner's Exh. 2, January 21, 2004 Transcript, pp. 162-70.

FN5. Petitioner's Exh. 2, January 22, 2004 Transcript, pp. 16-18..  FN5. Petitioner's Exh. 2, January 22, 2004 Transcript, pp. 16-18.

FN6. Petitioner's Exh. 2, January 27, 2004 Transcript, p. 50..  FN6. Petitioner's Exh. 2, January 27, 2004 Transcript, p. 50.

FN7. Petitioner's Exh. 2, January 23, 2004 Transcript, pp. 14-17..  FN7. Petitioner's Exh. 2, January 23, 2004 Transcript, pp. 14-17.

FN8. See, e.g., Petitioner's Exh. 2, January 22, 2004 Transcript, pp. 40-41;  Petitioner's Exh. 2, January 23, 2004 Transcript, p. 29-32..  FN8. See, e.g., Petitioner's Exh. 2, January 22, 2004 Transcript, pp. 40-41;  Petitioner's Exh. 2, January 23, 2004 Transcript, p. 29-32.

FN9. Petitioner's Exh. 2, January 30, 2004 Transcript, pp. 19-69..  FN9. Petitioner's Exh. 2, January 30, 2004 Transcript, pp. 19-69.

FN10. Petitioner's Exh. 2, February 3, 2004 Transcript, pp. 31-41, 74-75..  FN10. Petitioner's Exh. 2, February 3, 2004 Transcript, pp. 31-41, 74-75.

Santos, Thelma A., J.