Mark Despres v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

I. Statement of the Case

By his amended petition, filed January 20, 2010, petitioner seeks a writ of habeas corpus claiming ineffective assistance of counsel.

Petitioner was convicted after pleas of guilty on May 6, 1997, to the crimes of murder in violation of C.G.S. § 53a-54a and conspiracy to commit murder in violation of C.G.S. §§ 53a-54a and 53a-48.   As a consequence of such pleas and convictions, on February 2, 2003, petitioner received a total effective sentence of 45 years, 25 years of which falls under the minimum mandatory requirements for the conviction of murder.   As a result of such sentence, petitioner is now in the custody of the respondent.

By his petition, it is claimed that petitioner's confinement is illegal in that it resulted from the denial of his constitutional right to effective assistance of counsel.   Specifically, the petitioner claims that his pleas of guilty were not intelligent or voluntarily made and that his inculpatory statement of December 8, 1995 was the product of coercion by his attorney Bruce A. Sturman.   It is further claimed that prior to the entry of his pleas on May 6, 1997, his attorney did not review the court's expected canvass with him or make him aware of the elements of the offense to which he entered his pleas.   As a defendant in a criminal proceeding, petitioner was “constitutionally entitled to adequate and effective assistance of counsel at all critical stages of the criminal proceeding.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984).   This right arises under the Sixth and Fourteenth Amendments to the United States Constitution and Article 1st, § 8 of the Connecticut Constitution.”  Copas v. Commissioner of Correction, 234 Conn. 139, 153 (1995).

The general standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, supra, 466 U.S. 668.  “In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice ․ thus, he must establish not only that his counsel's performance was deficient, but as a result thereof, he suffered actual prejudice, namely, that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome of the case ․ Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome ․ Bunkley v. Commissioner of Correction, 222 Conn. 444, 445-46, 610 A.2d 592 (1992).”  Mercer v. Commissioner of Correction, 51 Conn.App. 638, 640-41 (1999).

“In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove:  (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law;  and (2) that this lack of competence contributed so significantly to (his) conviction as to have deprived him of a fair trial.”  Id.

Only if the petitioner succeeds in this herculean task will he receive a new trial.  Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13 (2001).

For ineffective assistance of counsel claims resulting from guilty pleas, the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified the prejudice prong of Strickland is applied.  Copas v. Commissioner of Correction, supra, 234 Conn. 156-57.

“A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal ‘that the advice was not within the range of competence demanded of attorneys in criminal cases.’   The range of competence demanded is ‘reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.’   Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist.   A reviewing court must view counsel's conduct with a strong presumption that it falls within the “wide range of reasonable professional assistance” and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time.

To satisfy the prejudice prong, the petitioner must show a ‘reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’  ‘Reasonable probability’ does not require the petitioner to show that ‘counsel's deficient conduct more likely than not altered the outcome in the case,’ but he must establish ‘a probability sufficient to undermine confidence in the outcome.’   The Hill court noted that ‘[i]n many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial.   For example, where the alleged error of counsel is a failure to investigate ․ the determination whether the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea.   This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.”  (Internal citations omitted.)  Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721-23 (2002).

Petitioner has set forth his claims of ineffective assistance in the amended petition.   Briefs have been submitted by the parties in support of their positions.   Matters not briefed will be considered as abandoned.  Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1985).

II. The Underlying Facts

The pertinent facts underlying petitioner's arrest and conviction are summarized below.   These facts are based upon the detailed statement given by petitioner to the prosecuting authorities on December 8, 1995 ¹ and the long form information to which plaintiff plead guilty to on May 6, 1997.   The court has also relied on the statement of facts set forth in State v. Carpenter, 275 Conn. 285 (2005).   It is noted that there are incidental discrepancies between petitioner's statement and the state of facts as found in the Carpenter case.

Beth Carpenter, an attorney licensed to practice in Connecticut was hired by Attorney Haiman Clein as an associate in his law firm in November 1992.   By the end of November, the two were engaged in a torrid affair.   At some time, Carpenter had been concerned that her brother-in-law, Anson B. “Buzz” Clinton III, had been abusing her sister's 2-year-old daughter.   By early December 1993, Carpenter had become so worried about the child's safety that she asked Clein to kill Clinton.   Clein at first refused, but later told Carpenter that he knew someone named Mark Despres (the petitioner) who might be willing to do the job.   Carpenter asked Clein to make the necessary arrangements.

Petitioner, who had been supplying Clein with drugs (cocaine and marijuana), went to Clein's office in New London in January or February 1994.   Clein told him about a person molesting a little girl and that he had a lady friend who had made a decision to get rid of this guy because the court had not done anything about it.   Clein asked if he would kill the person and what it would cost.   Petitioner told Clein that the cost would be $10,000.   After discussion, the cost was reduced to $8,000.

Clinton was identified as the intended victim and information supplied by Carpenter concerning his address and the type of vehicle that he would be driving was passed along by Clein to petitioner.

After accepting Clein's commission to kill Clinton, petitioner went to Joseph Fremut's garage and informed Fremut of the plan.   Fremut agreed to help.   Petitioner and Fremut, however, were having difficulty in locating Clinton.

When petitioner next went to Clein's office, he informed the attorney concerning the difficulties he was having in locating Clinton.   Clein gave petitioner a photograph of the victim and informed him that the victim's hair was now longer.   Petitioner, still unable to located Clinton, received a call from Clein to report to his New London office.   When petitioner arrived, Clein was quite agitated and inquired why Clinton was not dead.   Clein said that the activity was making him look bad and that petitioner should just do it.

In the course of the meeting between petitioner and Clein, the contract price was reduced to $5,000 and petitioner informed Clein that he could do it for that figure.   Clein then gave petitioner $1,500 towards the payment of the fee.

Petitioner was still having difficulty locating Clinton.   What occurred next is best stated in State v. Carpenter, supra, 792:

In early March 1994, Despres learned through a newspaper advertisement that the victim was selling a tow truck.   Despres called the victim, representing himself as a buyer, and arranged to meet the victim.   On March 10, 1994, Despres, accompanied by his fifteen year old son, Chris Despres, met the victim in the parking lot of a Howard Johnson's restaurant on Interstate 95.   After a short conversation, the victim agreed to show the tow truck to Despres, who followed the victim northbound on the interstate to exit seventy-two.   As they exited, Despres flashed his headlights, causing the victim to pull over and stop on the shoulder of the roadway.   Despres pulled over directly behind the victim.   After the two men got out of their cars, the victim approached Despres and asked what was going on.   Despres responded that he was looking for a gas station.   He then fired six shots at the victim.   When headlights appeared from behind, Despres jumped back into his car and sped away to his home, driving over the body as he fled from the scene.   Moments later, the occupants of the approaching vehicle discovered the victim's body lying on the roadway and notified the police.

In the fall of 1995, petitioner was arrested for the Clinton murder.   He was charged with capital felony in violation of C.G.S. § 53a-54b(2) “murder committed by a defendant who is hired to commit the same for pecuniary gain ․” At the time of his arrest, petitioner gave a statement to the police in which he confessed to every element of crime of capital felony.   In the statement, however, he claimed that Joseph Fremut was the actual shooter.   Mr. Fremut was also arrested and charged with capital felony.

III. Claim Against Attorney Sturman

On November 20, 1995, Attorney Bruce A. Sturman was appointed to represent petitioner.   Since petitioner was subject to the death penalty if convicted of the capital felony charge, Attorney Jay McKay of the Trial Services Unit of the Chief Public Defender's Office was also appointed to represent petitioner.   Attorney McKay's unit specialized in the defense of death penalty cases.   Attorney Sturman and McKay were aware of petitioner's inculpatory statement in which he stated that Fremut was the shooter.   They were also aware that the plaintiff was still exposed to the death penalty as a principle in the commission of the offense.   Attorney Sturman was advised by the State's Attorney's Office that they were convinced that Haiman Clein and Beth Carpenter had hired petitioner and Fremut to murder Clinton.   It was made clear to Attorney Sturman that petitioner's cooperation regarding who else might have been involved in the Clinton murder would be taken into consideration on the issue as to whether the state would seek the death penalty against petitioner.

Petitioner's probable cause hearing was scheduled for Monday, December 11, 1995.   The state's attorney notified Attorneys Sturman and McKay that if petitioner did not cooperate before the probable cause hearing, they would seek the death penalty against him and arrest his son who had been with him at the time of the shooting.

On Friday, December 8, 1995, Attorneys Sturman and McKay met in the basement private conference cubicle at the courthouse in New London.   After such conference, petitioner met with officers at the state's attorney's office and gave a detailed 29-page statement in which he admitted that he had shot Clinton.   The statement inculpated Clein and Carpenter.

In his petition, it is claimed by petitioner, that the 29-page statement given by him to the prosecuting authorities on December 8, 1995, was the product of coercion by Attorney Sturman.   At the time of the conference on December 8, 1995, Attorney Sturman was aware of petitioner's statement to the police which exposed him to conviction and the death penalty, he was also aware of the position of the state's attorney's office.   Attorney Sturman's position was that he could best serve his client by removing petitioner's exposure to the death penalty.   This could be accomplished if petitioner would cooperate with the prosecution by giving a statement indicating who was involved in the murder.   In attempting to get his client to agree to such cooperation, Attorney Sturman was quite forceful.   He became loud and used profanities in his arguments to convince petitioner that he should cooperate with the prosecution.   At some time during the meeting, petitioner did agree to cooperate and to make a statement.

Considering all of the evidence and the credibility of the parties, it cannot be found, however, that petitioner's statement was the product of coercion by Attorney Sturman as alleged.

There was certainly no physical coercion possible since the parties were separated by a plexiglass window.

Also, Attorney Sturman was not present when the statement was given by petitioner.   Sometime after the conference with Attorneys Sturman and McKay, petitioner was brought to the state's attorney's office on the third floor of the same building.   Prior to taking the statement;  officers explained to petitioner his rights to remain silent and other applicable rights.   Petitioner signed a waiver of these rights and gave the 29 page statement.   Petitioner was aware at the time he gave the statement that he could refuse to do so and that he could stop talking at any time.   There was no evidence that petitioner was being coerced by Attorney Sturman or anyone else at the time he actually made the statement.

There was testimony that petitioner had mental health problems, that he was not feeling well on the day he gave the statement and that he had taken medication earlier in the day.   In evidence, there is a letter to petitioner dated July 9, 2003, written by Attorney Michael A. Fitzpatrick, who was subsequently appointed to represent petitioner.   In the letter the attorney stated that he had filed a motion to suppress the statement given by petitioner on December 8, 1995.   As stated in the letter, in connection with this motion to suppress, Attorney Fitzpatrick had investigated petitioner's physical condition at the time the statement was given and had made inquiry to a doctor Ayers and a professor Stephen Duke who had been retained as a legal expert to testify at the suppression hearing.   The attorney stated in the letter that there was some basis for petitioner's claim that he was ill on December 8, 1995, and, therefore, unable to resist the pressure exerted on him by Attorney Sturman.

No other evidence was presented as to plaintiff's mental or physical condition on May 8, 1995, other than petitioner's own testimony.

At the habeas corpus hearing, Attorney Fitzpatrick testified that although there was a colorable claim, the chance that the motion to suppress might be granted was not good and he expressed doubt that he would prevail on the motion.

Although Attorney Fitzpatrick felt that he was bound to attempt to suppress the statement, he had no confidence that the motion would be successful.   Attorney Sturman failed to notice anything unusual about petitioner's condition.   There is nothing to indicate that Attorney McKay or the officers who interviewed petitioner in the state's attorney's office observed anything about his physical or mental condition that would affect his ability to make a voluntary statement.

Considering all of the evidence, it cannot be found that petitioner has proven that his physical or mental condition on May 8, 1995, made him susceptible to any pressure exerted by Attorney Sturman or any other individual.

To obtain the relief sought, petitioner would have to establish not only ineffective assistance as alleged but also actual prejudice as a result of the attorney's deficient performance.   This petitioner has failed to do.   The evidence indicates that petitioner made a statement at the time of his arrest which fully inculpated him in the crime of felony murder.   The state was preparing to go forward with a probable cause hearing on this charge at the time petitioner made his statement on December 8, 1995.   The state desired the revised statement from petitioner, not for his prosecution, but to proceed against Clein and Carpenter.   It has not been established that petitioner had suffered any prejudice as a result of making the revised statement.

IV. Claim Against Attorney Fitzpatrick

Attorney Michael Fitzpatrick was subsequently appointed to represent petitioner replacing Attorney Sturman.   Attorney Bruce Lorenzen of the Chief Public Defender's Office was also appointed to represent him.   The case was proceeding to trial and jury selection had been started, when on May 6, 1997, the state made an offer to resolve the prosecution which petitioner accepted.   A written plea agreement was drawn up and signed by petitioner, his attorney and the state's attorney.   Under this agreement, petitioner agreed to cooperate with the prosecution and testify in any trial or hearing arising out of the death of Anson Clinton III. Petitioner also agreed to plead guilty to murder and conspiracy to commit murder.   In return, the state would recommend a total effective sentence of 45 years with petitioner's right to argue for a lesser sentence.   At the time of sentencing, the charge of capital felony would be nolled.   On the same day, May 6, 1997, petitioner entered pleas of guilty to murder and conspiracy to commit murder before Judge Patrick Clifford.   After a thorough canvass, Judge Clifford found that petitioner's pleas were made “knowingly, intelligently and voluntarily entered with a full understanding of the crimes charged, possible penalties, consequences of the plea, adequate and effective assistance of counsel.”   The judge also found that there was an actual basis for the pleas and accepted the pleas and made a finding of guilty.

As a result of his conviction on February 2, 2003, Judge Clifford imposed a total effective sentence of 45 years.

In his amended petition, the petitioner claims that his right to effective assistance of counsel was denied in the following respect.

Trial counsel failed to ensure that the Petitioner's pleas were knowing, intelligent and voluntary, in that (1) the trial counsel was cognizant that the petitioner had insisted on going to trial and that the petitioner's December 8, 1995 statement was the product of coercion by Attorney Sturman;  (2) the trial court did not review the Court's canvass with the petitioner prior to the pleas, and (3) the trial counsel did not make the petitioner aware of the elements of the offenses prior to the plea.

The first allegation concerning the statement of December 8, 1995, has previously been considered.

Petitioner testified that prior to his entering pleas of guilty before Judge Clifford on March 6, 1997, Attorney Fitzgerald did not go over the expected canvass with him.   His testimony was that the only thing the Attorney told him was that if he raised issues such as the claim of Attorney Sturman's intimidation, the judge would not accept his plea.   Petitioner also testified that Attorney Fitzgerald did not advise him of the elements of the offense to which he was to plead guilty.

Attorney Fitzgerald testified that he advised petitioner that the state had an extremely strong case against him with a near certainty that he would be convicted after trial.   The attorney testified that he reviewed the plea agreement now offered by the state which would reduce petitioner's exposure of incarceration from 80 years to 45 years with a right to argue for less but with a minimum of 25 years and would eliminate the death penalty.   Attorney Fitzgerald advised petitioner to accept the agreement and plead guilty.   Petitioner did accept the advice and executed the written plea agreement.

It was Attorney Fitzgerald's testimony that, prior to entering his pleas before Judge Clifford, he discussed the plea agreement with petitioner and advised him of the elements of the offenses to which he would enter his pleas.   Attorney Fitzgerald stated that petitioner understood the elements of the offenses.   The transcript of the hearing before Judge Clifford indicates that at the time petitioner entered his pleas, the clerk read the long form information which described in detail the charges under § 53a-54a, murder, and §§ 53a-48a and 54a-54a, conspiracy to commit murder.   The long form information contained all of the elements of the crimes charged.   In response to Judge Clifford's inquiries, plaintiff admitted he had discussed the crimes in the information with his attorney.   He also agreed that he was pleading guilty to the underlying facts stated by the state's attorney.   Judge Clifford also advised petitioner specifically of the statutory elements of both crimes.   Plaintiff informed the judge that he understood the elements of the crime and that the state would have to prove them if the case went to trial.   The judge also reviewed the penalties and consequences of the pleas and petitioner replied that he understood them.

In response to Judge Clifford's questions, petitioner stated that he signed the plea agreement and entered his pleas of guilty voluntarily and of his own free will.

Plaintiffs allegation that his attorney failed to review the elements of the offenses to which he was to plead guilty before Judge Clifford had not been proven.   Even if he was not so advised prior to appearing before the judge, he suffered no prejudice since the statutory elements .were spelled out to him at least twice in court and he admitted that he understood them and that he was voluntarily pleading guilty to the crimes charged.

V. Conclusion

Considering all of the evidence and the logical inferences which may be drawn from such evidence, it must be found that petitioner has failed to prove that his conviction and present confinement resulted from any denial of his constitutional right to effective assistance of counsel as alleged in his petition.   It has not been proven that petitioner suffered any actual prejudice as a result of any of the actions of his attorneys.

Accordingly, petitioner's application for a writ of habeas corpus is denied.

Joseph J. Purtill, J.T.R.

FOOTNOTES

FN1. The court is aware that one of petitioner's principal claims in this action is that the statement given on December 8, 1995, was not voluntary and was the product of duress by petitioner's attorney..  FN1. The court is aware that one of petitioner's principal claims in this action is that the statement given on December 8, 1995, was not voluntary and was the product of duress by petitioner's attorney.

Purtill, Joseph J., J.T.R.