Bernard Smalls v. Warden (2009)

DECISION

THE COURT:  The following is going to constitute the decision of this Court.   Please, Madam Court Reporter, if you would, prepare a transcript for my signature.

This habeas corpus proceeding is interesting in that first of all, Mr. Smalls does not deny the underlying and apparently has never denied the underlying fact that he was responsible for the death of an individual by gunshot.

Mr. Smalls has steadfastly maintained the position that he felt the proper charge for which he should have been convicted was manslaughter.

The scenario that's been presented to the Court is one in which potentially, manslaughter might have been an appropriate charge but for several important facts.

First of all, the prosecution was not willing at any time to lower the charge to anything other than murder.   It is clear in the State of Connecticut that the decision as to what crimes to charge a defendant with is solely with the prosecution.   The defendant, of course, has no right to determine what charges he's going to answer, nor does the judge have the right to determine what charges are going to be brought against the defendant.

So with the decision to proceed with murder then, it's also clear that the evidence was sufficient that convinced a jury beyond all reasonable doubt that the defendant was indeed guilty of murder.   The case was appealed.   The appeal was denied.

The letter addressed to Ms. King, which is- which the Court believes to be from Mr. Smalls, pretty well sums up what a lot of defendants' attitude is towards their attorneys.   The prevailing on the street attitude is that it's the attorney's job to make a defense.   Unfortunately, that's really not how it works.   The facts of the case, the ascertainable facts are what make the defense.   It's the job of the attorney to present a defense that is-that can be raised by the facts.

In this case, closest thing that comes to a defense would be the issue of intoxication.

However, the fact-the evidence presented to this Court demonstrates, first of all, that Mr. Smalls in no way gave his attorneys any reason to believe that he was intoxicated.   The investigator who investigated the witnesses, including the ones who testified here, did not find that there was sufficient credible evidence to show that Mr. Smalls was so intoxicated that he could not have formed the intent to kill.

Consequently, with the absence of this evidence, Attorney Moskowitz was not obliged to bring forth a defense for which there was no real support.

The Court is convinced that the intoxication defense that has been talked about in this habeas proceeding is an after the fact attempt to try to minimize the damage that was done by going to trial.

The Court further finds that the twenty-five year offer of pleading to murder was in fact conveyed to Mr. Smalls, and he rejected that offer.

Another misconception that seems to be existing, I'll use the term on the street, seems to be defendants believe that they're entitled to something-they feel that they're entitled to three offers.   Well, that's a myth.   A defendant in a criminal trial is not entitled to any offer.   The state in no way is required to enter into a pretrial agreement.   The fact that a great many cases are resolved through pretrial agreement does not create any sort of entitlement on the part of a defendant to have his case plea-bargained to an acceptable sentence that he's willing to serve.   The constitution guarantees one the right to a trial by jury.   It does not guarantee one a right to a satisfactory plea agreement.

Specifically as to the performance of Attorney Avitablile in the-as the appellate counsel, the Court finds there's nothing in the record of this habeas trial that would in any way undermine a belief that Mr. Avitabile did anything other than present quality representation.   Consequently, count two will be denied.

In count three, the issue of prosecutorial misconduct, the issue is res judicata, being brought up on appeal and decided adversely to the petition in his appellate decision.

As to Attorney Moskowitz, one must remember that a habeas corpus proceeding is a civil proceeding.   It is not a criminal trial.   As such, the petitioner in the habeas corpus proceeding doesn't appear before this Court in the same position as a defendant does in a criminal trial.   A defendant in a criminal trial is presumed to be innocent, and, in fact, he is innocent unless and until the jury comes back and finds guilty.

In the habeas petition, trial of the habeas petition, the petitioner comes before the Court not as a defendant, but as a convict, as one who has in fact been convicted.   As a result, the burden of proving that there's been a miscarriage of justice rests with the petitioner.

Unlike the criminal trial in which the burden justifiably rests with the state to prove guilt beyond a reasonable doubt.

Based upon all of the evidence submitted in this case, the Court assesses greater credibility to the testimony of Attorneys Moskowitz and King and find that the petitioner has failed in his burden of proving that there is a constitutional infirmity that would merit setting aside the conviction.

Stanley T. Fuger, J.

Fuger, S.T., J.