Johnny Johnson v. Warden (2011)

HABEAS

THE COURT:  Good morning.   Please be seated.

ATTY. BANSLEY:  Your Honor, just before we begin, if Mr. Johnson may have his handcuffs off, I don't think he has been a problem in the past.

THE COURT:  Not that I recall, so go ahead.

ATTY. BANSLEY:  Thank you, Your Honor.

THE COURT:  Mr. Bansley, are you ready to proceed?

ATTY. BANSLEY:  I am, Your Honor, if I may?

THE COURT:  You can call your next witness.

ATTY. BANSLEY:  Thank you, Your Honor.   That would be Attorney Avery Chapman.   Mr. Chapman, good morning to you.

MR. CHAPMAN:  Hello Walter, how are you?

ATTY. BANSLEY:  Very well, yourself?

MR. CHAPMAN:  Good, thank you.

ATTY. BANSLEY:  I appreciate your time—I know this is inconvenient—for the support of Mr. Johnson.

Mr. Chapman, if I may, would you explain to the Judge—

ATTY. HOWE:—I  think he needs to be sworn in.

THE COURT:  Yeah, that is sort of an old tradition we like to honor once in a while.   Mr. Chapman, if you will please stand and raise your right hand.

ATTORNEY AVERY S. CHAPMAN, of 411924 West Foresthill Blvd, Willington, Florida, 33414 was called as a witness, by video conferencing, first being duly sworn and testified under oath as follows.

CLERK:  Please state your name, spell your last name, and state your business address for the Court.

WITNESS:  Avery S. Chapman, A-v-e-r-y, 411924 West Foresthill Boulevard, Willington, Florida, 33414.

ATTY. BANSLEY:  Thank you, Your Honor.   Again, thank you, Mr. Chapman for your time.   I appreciate and understand it is inconvenient, but as I stated, it is important to Mr. Johnson, so we appreciate your time.

DIRECT EXAMINATION BY ATTORNEY BANSLEY

Q Mr. Chapman, if you would, would you explain to the Court how long you have been practicing law, sir?

A I was first admitted in New Jersey in 1991, and Connecticut, in, I think 1994, and Florida subsequently.   During the entire time I have been a trial lawyer.

Q And where did you graduate from law school, sir?

A Cardozo, in New York City.

Q And since '91 or so, since you have practicing law, have you been practicing criminal-defense law exclusively?

A No. No, I have been both a civil lawyer and a criminal-defense lawyer.   At the time of Mr. Johnson's trial, I had probably been a criminal-defense lawyer for 7 years or so.

Q And you are currently licensed in Connecticut?

A I am still licensed in Connecticut.

Q And you had the opportunity to represent Mr. Johnson in a murder trial in 1999, is that correct?

A I represented him twice as I recall. '99 may have been the first trial—you can refresh my recollection—but, yeah, I think '99 was the first, yes.

Q And that was a jury trial, sir?

A That was a three-ring-dogged-pony-show circus.   That was 4 defendants in a jury trial in New Haven.

Q And what was the result of that trial in 1999, Mr. Chapman?

A With respect to which defendant?

Q Mr. Johnson.

A Hung jury.

Q And in fact you represented Mr. Johnson at that trial?

A I did.

Q Now, you also had the opportunity to represent Mr. Johnson for retrial of the same charges in 2001?

A That's correct.

Q And that would have been during May and June of 2001, sir?

A Appears so—from the transcripts.

Q Have you had the opportunity to review the transcripts?

A Yeah. They were supplied to me by the State's Attorney.

Q Prior to testifying today, did you review anything else other than the transcripts?

A Yes, I did.

Q And what was that, sir?

A I reviewed the first trial transcripts;  I reviewed all of the investigation from the first and second trial;  I reviewed my trial notes from the first and second trial;  I reviewed all my subpoenas from the first and second trial;  I reviewed my appellate work, including the brief I wrote, and all the appellate research from the intermediate appeal between—after the second trial;  and I reviewed whatever materials provided to me by the State's Attorney.

Q And supplied by the State's Attorney, was that the trial transcripts from 2001?

A That would be it.   And she provided me with a bunch of discovery and some of the motions that were filed in the second trial.

Q Now the documents, other than the trial transcripts, do you have them present with you today?

A Yes, I do.

Q Now directing your attention to 2001—approximately in May—prior to that how many contested jury trials had you done in criminal trials, sir?

A A hundred or more, including lesser crimes.

Q Sir, and prior to 2001, do you recall approximately how many contested jury murder trials you had done?

A Yeah, I would say maybe a dozen, perhaps more.

Q Now, do you recall Mr. Johnson being in pretrial confinement from the conclusion of the first trial until the commencement of the second trial in May of 2001?

A That is my recollection, yes.

Q Now during that time frame, approximately how many times did you visit Mr. Johnson, to your recollection?

A I don't have a recollection on that.   I saw from the hearing transcript, Mr. Johnson said not at all.   That's possible.   I believe I sent my investigator Jim Bender, to see him a couple times, because we had some questions about working up the alibi in greater detail.   So, I believe Mr. Johnson had some sort of contact with my office through Mr. Bender.   I don't recollect whether not I saw him personally during that intermediate two years.

Q So prior to testifying today, you did have the opportunity to review the transcript from the first session in February of this year, where Mr. Johnson testified?

A Yeah, State's Attorney asked me to review it so I can understand Mr. Johnson's claims in this habeas.   I had not received anything from your office to review, so it is the only thing I had to look at.

Q Now prior to Mr. Johnson's first trial starting, did you receive an offer from the State for a plea agreement?

A Prior to the first trial?

Q Correct.

A I am sure we did.   I don't recollect what it was.   I guess it has been suggested to me by Linda that that offer was that 25–year offer.   I don't have any independent recollection as to what the offer—whether an offer was made prior to the first trial and what it was;  I really don't.

Q You had the opportunity to review Mr. Johnson's testimony, do you see where he testified that it was his belief that the State had made an offer for 25 years prior to the first trial?

A I saw that.   I have no opinion on that either way, because I just don't recollect.

Q Do you recall the State making an offer to Mr. Johnson at all?

A I did some thinking on this and I am going to give you my best recollection as to what happen with the offer.   After the hung jury, I believe Mr. Johnson was pretty hot for retrial because he thought we could win.   Then we had two years and we were waiting for things to—and I think Carlos Ashe was convicted in the meanwhile, he got a gazillion years, he got 99 years.   Prior to Mr. Ashe going to trial and getting convicted, I am not so certain that the offer was off the table, but I know Mr. Johnson hadn't expressed any interest in the offer.   He was still willing to go to trial.   Denika Green (phonetic) was still—the alibi witness was still standing by her alibi, which Mr. Johnson knew.   So there was, I believe the desire by Mr. Johnson to proceed to trial.   After Carlos Ashe got hammered—and in some ways Carlos Ashe's—the evidence against Carlos Ashe was in some ways, is I recollect, weaker than against Mr. Johnson—he got hammered.   I think Mr. Johnson was more interested and motivated in exploring an offer.   And I believe—I recollect having a conversation with Mr. Clark about whether or not 25 years was still around, or whatever the offer was.   And I think Mr. Clark was embolden by his win and Mr. Ashe—and said absolutely not, no offer like that is on the table—you know I've had to work up the Johnson for trial because the two of them were tried in fairly quick succession,—so that is not on the table.   He can plea to the charges, is I think the result of my conversation with Mr. Clark.   So that is what I remember, to the best of my knowledge.

Q In reviewing your file, did you come across any notes memorializing that conversation with Mr. Clark?

A No. As a matter of fact, I didn't come across any of my handwritten notes in between the two trials, so I suspect that subfolder of my file is missing somewhere.   All I have are my computer-generated notes from the trial, which wouldn't contain that kind of stuff because that's conversations made on the phone or in the courthouse.

Q Do you recall Mr. Johnson writing to you at all during that period of time between the first and second trial, telling you that he wanted to accept the 25 years that had been offered in the first trial?

A Well, I didn't see anything in the file to that effect;  I am not going to say it didn't happen.   I have been toting around this file for some time now and it is possible something might have been missing.   I don't have an absolute recollection either way.

Q But you do have a recollection that Mr. Johnson communicated to you in some form that he was interested in accepting the 25–year deal, and he communicated that to you in some time prior to the second trial?

A Yeah, my recollection would have been after he became aware that Carlos Ashe was convicted and got a lot of time.

Q Now with respect to the first trial, the mistrial, did you have any insight with respect to how the jury was hung up?

ATTY. HOWE:  I would object to that, Your Honor.   That's not something he can comment on, about jury deliberations.

THE COURT:  Sustained.

CONTINUED–DIRECT EXAMINATION BY ATTORNEY BANSLEY

Q Did you believe your position of negotiation going into the second trial was better or worse than the first trial, Mr. Chapman?

A I am sorry, the audio was a little messy, can you repeat that question?

Q Certainly. Going into the second trial, did you think your chances for Mr. Johnson gaining an acquittal were better or worse than they were prior to the first trial?

A I—to answer that question, I believe we—we got a hung jury by the skin of our teeth in the first trial, I think it was such a three-ring circus, and Darcus Henry looked so heavy as the main perpetrator, that the jury convicted two of four, and I think we benefited from that multiple-defendant scenario we didn't have in the second one, so I was worried about that and I think we had a lesser possibility of winning.

However, Denika Green stood by her story.   And we had the hopes—we were doing some research of the photographs of him and his brother Gaylord Salters (phonetic), and we had the hopes of getting in some photographs to show the similarity in the appearance of the two of them.   Because Gaylord Salter's name floated all over the identification, but never was firmly nailed down in the first trial, and I think we were hoping to do more with that at the second trial.   So to answer your question, maybe it was a wash because of what we had planned to do, is (indiscernible) we thinking we were stronger or weaker.   But, certainly, not having another two defendants who looked heavier—that it is more culpable than Mr. Johnson, you know, gave us more exposure.   It is always worse when you are sitting alone, I think, contrary to popular belief that multiple-defendant trial looks bad for everybody.

Q Mr. Chapman, you referred during your last answer, Ms. Green—Ms.   Green was you alibi witness?   Mr. Johnson's alibi witness?

A That is my recollection what her name was.   She was the then girlfriend of Mr. Johnson.

Q And she testified at the second trial?

A That is my recollection, yeah.   She testified in both trials I believe.

Q Now during the period of time from the conclusion of the first trial, until the commencement of the second trial in May of 2001, do you recall Judge Fasano being the presiding Judge in New Haven during that time?

A Sorry, the audio is just a little sketchy there.

Q From after the conclusion of the first trial until the second trial commenced in May of 2001, do you recall Judge Fasano being the presiding Judge?

A If you say so.   I know he was roughly at that time—I don't recollect that he was, but I know that he was a P J during that time, more or less.

Q After the second trial, do you recall having any supervised pretrial conferences with the presiding Judge?   That is prior to the second trial.

A I am sure we had some pretrial conferences about this case between the two—that was commonly done in New Haven at that time—to see if we could plead it out or what everybody's intentions was.   Carlos Ashe's trial was pending too—which was going first—there was some question at some point which one Jim wanted to take first, because I guess Carlos didn't want to plead out either.   So I am sure we had some—I have no notes of it, and no personal recollection of it, but it wouldn't surprise me.

Q Do you have any personal recollection of communicating to the presiding Judge in New Haven at that time, that Mr. Johnson was willing to take an offer of 25 years?

A The question suggests that I might have.   I don't recall.   If I did, it would have been after Carlos Ashe was convicted and Mr. Johnson brought up the question again, because, again, it is my recollection that's when the interest of the 25 years sprang up from Mr. Johnson.   Commonly, as I recall, Judge Fasano didn't want to hear about what the plea offers were.   He just wanted to know if plea discussions were ensuing.   And if they were, he would kick you out of his office and say go talk about it and let me know if you've got an agreement.   So I don't think I ever talked numbers so much with Judge Fasano as simply, you know, in this case, would indicate there were things ensuing.   But, again, I don't have a specific recollection.

Q I understand it is difficult because you don't have any notes to refer to, but is it accurate to say that you don't recall having any discussion with the presiding Judge in New Haven at that time regarding specific numbers?

A That would be correct, yeah.

Q Do you recall having a discussion with Mr. Clark in which you communicated Mr. Johnson's desire to accept 25 years?

A My recollection is vague, but, yes, after the Carlos Ashe trial.

Q Do you recall how many conversations you may have had, would it have been just one, would it have been multiple conversations or do you not recall?

A I would suspect—Jim is not a man to mince words, he probably told me no and that was the end of it.   It may have been two, but I am really speculating that.   I certainly don't think more than two conversations, but certainly I did have one.

Q Now during Mr. Johnson's first trial, to your recollection, did he testify or not on his own behalf?

A I don't think Mr. Johnson testified in his first trial, no.

Q Did he testify in his second trial, Mr. Chapman?

A No, he didn't.

Q Do you recall explaining to Mr. Johnson that he had an absolute right to testify on his own behalf if he wanted to?

A That is a question I would ask if I was a habeas counsel.   My recollection is the following:  I do not have a specific recollection of talking with Mr. Johnson, but I remember the circumstances.   There was something in the testimony that worried me, that if Mr. Johnson got on the stand, he was going to either A;  lie, or B;  just be wildly inconsistent with what was testified to.   Now I don't remember if that was Denika Green's testimony, something we put on our direct, or if it was something from the State's direct, but I was very concerned with Mr. Johnson getting on the stand being and being good witness.   And I recall having that discussion with Mr. Johnson at some point and time.

Q Do you recall Mr. Johnson telling you that he wanted to testify?

A I believe he did express some interest in testifying and that is why we had the conversation.

Q Do you recall Mr. Johnson explaining to you why he believed it was necessary that he should testify?

A I read what he testified to.   And, again, this is all floating the top from 6 years earlier, almost to the day—I suspect he felt that he wanted to tell his story to the jury, and I think that is probably accurate as to what he told me.

Q Do you recall Mr. Johnson telling you that one of the reasons that he wanted to testify on his own behalf, was that he would testify consistently with Mr. Green?

A I don't recall exactly what he said.

Q You had indicated before, that one of the reasons you believe he shouldn't testify, was you were concerned he was going to testify inconsistently, and I believe you specifically said with respect to testimony given by Ms. Green;  do I have that correct?

A My list is a little more inclusive.   I said, or some other witness—I don't recall.   Obviously, I mean, most concerned with Ms. Green;  she was a major alibi witness.   There was some pretty important reason.   And I as I look through the transcripts, it is just not floating to the top, but I remember there was—I was pretty strong in my feelings that it was going to turn out real bad.   I thought we had shot a lot of bullets at Gaylord Salters—his brother—that made me bring a third-party culpability defense in.   And there was something to me—wasn't jiving right—if Johnny got on the stand.   And I, of course, can't expand on that more because I just don't have specific recollection.   But I recall that I wasn't in favor of it, but of course, you know, as an experience trial lawyer it is not something I could prevent.   It was simply something that we had to discuss and make a joint call on it I think.

Q In general it is accurate to say that Ms Green testified that at the time of the murder she was with Mr. Johnson far away from the scene of the crime;  that would be correct, wouldn't it?

A Yeah. Yeah, her testimony was pretty consistent both trials.   They were cross town in bed at the time of the murders.

Q And Mr. Johnson confirmed that to you also?   From his perspective, he said that he was also with Ms. Green?

A Yes. Yes, he never said anything else.

Q So, was your understanding in May of 2001, that if Mr. Johnson did testify, that he was going to testify consistently with Mr. Green—with Ms. Green's testimony.

Q I can't make that connection for you, Walter, and the reason why is, I just recall there being some major reason why there was a problem with getting on the stand.   I don't recall what that major reason was.   There may have been something about the time of day, there may have been something jiving in that he was not with Ms. Green—it could have been some other witness—there was some pretty important reason that I recall was going to hurt us badly.   And I thought since Denika's testimony stood up twice, and she was a pretty decent witness—stood up twice and was consistent, I thought we had played our best hand on the alibi.   Mr. Johnson corroborating the alibi—it is self-serving statement.   Of course he is going to corroborate the alibi.   So it wasn't going to give us anything more, given that I felt there was some sort of exposure to Mr. Johnson testifying, though right now I can't recall what it was.

Q It is accurate then to say that you told Mr. Johnson that he should not testify?

A I suspect what I just told you in my answer is probably what I told Mr. Johnson, but I would be speculating.   I don't think I have changed my manner of expressing myself on these points too much in six years, so that is probably what I told him.

Q Mr. Chapman, do you recall the State introducing evidence from a Gang Expert in Mr. Johnson's second trial?

A Yeah. Wasn't that Pelletier?

Q I believe so.   Do you recall that testimony?

A I am sorry, what are you saying?

Q Pelletier—do you recall that testimony?

A Yeah. Yeah, I do.

Q Do you recall that he was a detective with the New Haven Police Department?

A Sure.

Q Did you retain an expert to assist you in rebutting that testimony, or assisting you in preparing for cross examination?

A No. I didn't.

Q And also, would it be accurate to say that at Mr. Johnson's trial—a main issue—one of the main issues was identification?

A In which trial?

Q The second one.

A The second trial, sure, it was an issue in both trials.

Q All right.   Did you retain the services of an eyewitness expert to assist in your cross-examination of any witnesses to the best of your recollection?

A No. No, I didn't.

ATTY. BANSLEY:  I have no further questions, Your Honor.

Thank you, Mr. Chapman.

WITNESS:  You're welcome.

ATTY. HOWE:  Just one moment, Your Honor.

CROSS–EXAMINATION BY ATTORNEY HOWE

Q Good morning, Attorney Chapman.

A Hello, Linda, nice to see you.

Q You too.   And I would ask you;  do you have a copy of the criminal-trial transcript from 2001 with you today?

A I do.

Q I would ask you if—one moment please—if you could turn to the transcript of June 6, 2001, please.

ATTY. HOWE:  For the record, Your Honor, the transcript of June 6, 2001 is Petitioner's Exhibit 7 in this habeas proceeding.

WITNESS:  June 6th.   What page.

ATTY. HOWE:  Page 70, please.

WITNESS:  Okay. Got it.

CONTINUED–CROSS EXAMINATION BY ATTORNEY HOWE

Q And do you see at the bottom of page 70:  MR. CLARK:  “Your Honor, I am asking that you address Mr. Johnson about his decision not to testify.”   Towards the bottom of the page?

A Yes, yes.

Q And if you could look at the next few pages please, regarding the Court's canvass.

A Yeah, I recall the canvass.   I think I reviewed this the other day.

Q Okay, thank you.

A Judge Fracasse, you know, he knew how to canvass the defendant and apparently he did.

Q Now in particular, on page 72, the Judge asks Mr. Johnson the QUESTION:  “All right.   And you had the opportunity to speak with Mr. Chapman about your right to testify and your right not to testify.”

And your client at the time, Mr. Johnson, answered “Yes, Your Honor.”   Do you see those lines?

A Well obviously if it happened, it is there.

Q Okay. And in fact did you speak to Mr. Johnson about his right to testify or his right not to testify?

A Yeah, my answer to Walter was exactly that.   I recall having a pretty good conversation with Mr. Johnson about their being some problem with him testifying.   Again, I can't recall what it is now.   That I thought Denika did a good job and was consistent and that we didn't have much to gain and we obviously had some exposure;  I do recollect that.   That is probably what this question refers to if Mr. Johnson is saying yes.

Q Well, Mr. Johnson is further indicating that you somehow prevented him from testifying, is that true?

A Well, no, because it is obviously his choice at any time.   Typically my obligation is to advise him and make his decision.   Mr. Johnson was fairly young individual back then so I am sure that my advice carried a lot of weight with him but that doesn't mean that he wasn't free to disregard it and I think that is one of the reasons that the canvass is done because the Judges want to be sure that the right to testify, which is a constitutional right, is given—is given up voluntarily.

Q Attorney Chapman, if Mr. Johnson had indicated to you—that despite your advice that there would be pitfalls with him testifying that he nevertheless wanted to testify, would you have allowed him to testify, would you have called him?

A Absolutely.   Absolutely.  And it was my practice and always was my practice, that in those cases I would have the Judge do a voir dire and a canvass of him, let him testify, and I would state my position on that outside the presence of the jury, for the record, so that everybody was clear.   And I typically did that to make it clear, exactly what the position was, because you never know what a defendant will say if they are going to testify against your advice, but he was certainly free to testify.   All he had was my advice;  he didn't need my permission.

Q Thank you.   Now in terms of—do you have a copy of the amended petition in this case, sir, filed by Attorney Bansley?

A If you provided to me, it is going to be here.   Do you want me to dig it out?

Q Yeah, I would just like you to have it in front of you so you can refer to some of the issues.

ATTY. HOWE:  Your Honor, while he is looking, I have an item I would like to have marked as exhibit.   It is the Appellate Decision, State v. Johnny Johnson, 82 Conn.App. 777.

THE COURT:  Come on down.   That will be Respondent's Exhibit A, I believe for identification right now.

ATTY. HOWE:  Is there any objection to this, Attorney Bansley.

ATTY. BANSLEY:  No.

ATTY. HOWE:  Oh—

THE COURT:—Mr.   Bansley, are you objecting?

ATTY. BANSLEY:  No, sir.

THE COURT:  Without objection, Respondent's Exhibit A will be admitted, words “for identification” stricken.

WITNESS:  Okay. Amended Petition, got it.

ATTY. HOWE:  Okay. Thank you.

WITNESS:  March 12, 2006.

ATTY. HOWE:  That's it sir, yes.

CONTINUED–CROSS EXAMINATION BY ATTORNEY HOWE

Q If you could turn to page 3.

A Paragraph 11?

Q Yes. Before I inquire, paragraph 11—if you could just hold on a minute, Attorney Bansley is speaking with his client.   I will wait until he is finished.

ATTY. BANSLEY:  Thank you, Ms. Howe.

ATTY. HOWE:  Before I question Attorney Chapman on these, on paragraph 11, I'm just inquiring, maybe I'm asking questions about things that are not necessary.   If he could just clarify to the Court which of these paragraphs counsel is proceeding on for the habeas.

THE COURT:  I presume all of them.

ATTY. HOWE:  Well that may not be the case, that is what I wanted to ․

THE COURT:—I  have heard nothing to indicate that he is withdrawing anything.   If you had, Mr. Bansley, I would appreciate you letting me know.

ATTY. BANSLEY:  Give me one second.

ATTY. HOWE:  I mean we've already dealt with paragraphs B, C and D, and F.

THE COURT:  E?

ATTY. BANSLEY:  Wait a minute.

We do withdraw subparagraph A, Your Honor, E—

THE COURT:—wait  a minute.  “a.” WHAt else?

ATTY. BANSLEY:  E, Your Honor.

CONTINUED–CROSS EXAMINATION BY ATTORNEY HOWE

Q Attorney Chapman, as part of—prior to the commencement of the first trial and the second trial, did you get a disclosure form from the State as to criminal records of any witnesses the State would expect to call?

A Yeah. And I think we requested an update in between the two trials, it is typically done by my investigator, who he and I work on with on many trials.   I recall we had everything we needed.

Q All right.   In terms of paragraph B, would it be fair to say that your recollection is that prior to the second trial, whatever offer of 25 years may or may not have been made prior to the first trial, was off the table as an offer prior to the second trial, that Attorney Clark was not offering any 25 years prior to the second trial.

A Again my testimony is, I definitely have a recollection;  after Carlos Ashe was convicted it was off the table.   It may have been on the table very early after the hung jury in the first trial for some period of time prior to things spinning up for the second round of trials, then it was off the table.

During the period it may have been on the table, Mr. Johnson was not interested because—

Q—okay. Thanks.

A That is my recollection.

Q Thank you.   And paragraph C, would it be fair to say that you did advise him of his right to testify on his own behalf if he wanted to testify?

A Oh, yeah, absolutely.

Q And paragraph D says you refused to permit him to testify;  is that true?

A It is not possible for me to refuse to permit him;  all I can do is counsel him.

Q Thank you.   Okay, paragraph E is—and in terms of visiting him between the first trial and the second trial, your recollection is that your investigator communicated with Mr. Johnson between the first and second trial?

A Yeah, that is my recollection.   As we were getting ready for the second trial, we had to nail down some things and make sure Denika was still on board.   I think I sent Jim, I want to say twice, possibly three times, but certainly Jim went to see him—

Q—and did you feel the need to further—

A—in between the two, is my recollection.

Q Pardon?

A That is my recollection.

Q Did you feel the need to personally go to the prison to meet with your client in a prison setting, as opposed to meeting with him in the courthouse?

A To be honest, no, we had spent a lot of quality time together during the first trial, I felt that I really knew the ins and outs of everybody's cases.   Johnny had not ever communicated to me that he had something new to add that made it necessary for a big pow wow in person.   And Jim didn't ever bring anything back when he went to see him, saying that Johnny needs to see you in person.   So, no, I didn't go to see him.

Q Now paragraph G refers to failing to file—or pursue a Motion to Suppress or object to the testimony of the State's Gang Expert;  Wouldn't it be fair to say that you in fact did object repeatedly at trials to gang testimony coming in?

A I think so.   Yeah, I can't recall if I filed a motion against Pelletier prior to, I certainly objected in limine.   I may have filed a paper motion that just isn't—nobody recollects—I mean whatever the trial file reflects is what happened.   But I know I objected to Pelletier, because I didn't think there was a strong link of Johnny to the Island Brothers.

Q Now, paragraph H refers to you retaining a Gang Expert to rebut the State's Gang Expert.   The State's Gang Expert was a New Haven Police Detective, Detective Pelletier, who was familiar with the Island Brothers and Ghetto Brothers—Ghetto Boy Gangs;  what kind of Gang Expert would defense counsel have that would even apply under the facts here, other than objecting to putting in that evidence at all?

A There is no such expert, because Pelletier's testimony was fact-based, based on his observations of working in the gang taskforce.   There were no Gang Experts working in the community that, you know, that I was aware of from my years of practicing in New Haven, that could testify on rebuttal of Pelletier on his personal factual knowledge as to gang affiliation of the actors.   So, no I didn't, because there wasn't anybody to retain.

Q And then on the next page, 4, failed to object to (indiscernible) statement during closing arguments.   There was no evidence of ascertain of another suspect.   And in fact, would it be fair to say that part of your defense theory was to present Mr. Gaylord Salters to the jury and to suggest that perhaps the witnesses were confusing Mr. Johnny Johnson with his brother Gaylord?

A Yeah, I think what I did is I probably—it is generally not my practice to object too much in closing arguments, I think I handled that with my—in my rebuttal and in my closing, saying, yes there was—Gaylord Salters, he was all over the place.   So I think I covered that ascertain by the prosecutor—by Jim—by pointing out that there were quite a few incidences of mistaken identity.

Q And in this particular case, the defense was one of alibi, and put on Mr. Johnson's former girlfriend, who testified that he was with her at all of the time when the crime was committed.

A Yeah, I would say it was an alibi with some shades of third-party culpability of Mr. Salters;  the similarly looking brother.

Q Now one of the issues in the case did concern gang activities, in particular the Island Brother's Gang and the Ghetto Boys Gang;  would that be fair to say?

A Yeah, that was the motive for the shooting.

Q And would it be fair to say that as part of the defense strategy you attempted, as best you could, to keep out evidence regarding any gang affiliation, in particular on the part of your client?

A I did.   It was kind of hard because Jim Clark had some photographs at the Melebus Club. I think Johnny wasn't in on a few of them and Gaylord was, so that was kind of our ground—we were really trying to keep it out based on the fact that, you know, he wasn't photographed with the gang, but they had some other testimony, including Pelletier, said Johnny ran with the gang.   So, yeah, we were trying to keep it out.

ATTY. HOWE:  Before I ask any other question, I would request as a curiosity and since we are doing this by video-conferencing, if there are any other issues that are going to be brought up in the habeas that I need to address before I finish my cross?

THE COURT:  Issues that aren't in the petition?   ATTY. HOWE:  Yeah, it was represented to me that the only other witness for the petitioner is Attorney Chapman.   I mean I guess that is what I am requesting;  if there are any other witnesses on the witness list that I need to—

THE. COURT:—have  you any other witnesses you are going to call today, Mr. Bansley?

ATTY. BANSLEY:  No, Your Honor, I would like to conduct some redirect.

THE COURT:  Well, I understand, yeah, I understand that.

ATTY. BANSLEY:  And I may want to put Mr. Johnson back on the stand with respect to the testimony by Mr. Chapman.   But other than that, I have no additional witnesses.

ATTY. HOWE:  I have no other questions at this moment.

THE COURT:  Any redirect?

ATTY. BANSLEY:  Yes, your Honor, if I may.

REDIRECT EXAMINATION BY ATTORNEY BANSLEY

Q Mr. Chapman, with respect to the issue of Mr. Johnson testifying in his trial, I believe your testimony was that you said it was his choice;  is that correct?

A Yes. That is correct.

Q I thought on direct examination you said that you didn't recall telling him specifically that it was his right to testify, and it seemed on cross-examination you changed that, and I just want to be specific for the Court.   Did you specifically tell Mr. Johnson, to the best of your recollection, that he had a right to testify?

A I could not recall today if I used the word “right” or the word “choice” but I made it clear, as I did with all my clients, that they are the ultimate decider—decision maker, as to whether or not to get on.   As I mentioned to you, Mr. Johnson was much younger back then and I am certain that my counsel carried a lot of weight with him, but I always made it clear that it was his ultimate choice.   I think that once we sat down and talked about the case, he made the decision he made not to testify based on my counsel.   If he is saying now that he wanted to testify and I prevented him, well maybe that is a fine line.   I didn't prevent him but I likely gave him strong counsel not to, for the reasons that I set forward.

Q And if I recall your earlier testimony, you are not quite sure why you counseled him not to testify, but you thought it was regarding some inconsistencies that may have come out?

A There was some good reason why.   And, again, I felt that we didn't have much to gain by it, in my estimation, given that exposure.

Q You also indicated with respect—I believe it is exhibit 7, which is the transcript from June 6, 2001—Ms.   Howe took you through the canvass by Judge Fracasse, and I believe your testimony was that when clients made decisions to testify and not to testify, it was your practice to put on the record why you would recommend whatever particular course of action;  is that correct?

A I missed a little part of your question, getting a little feedback—if you could just repeat that.

ATTY. HOWE:  Your Honor, I think that mischaracterizes his—I would object to the question mischaracterizing—he said if a client decides—

THE COURT:  Overruled.   He will correct it if it is not stated correctly.

CONTINUED–REDIRECT EXAMINATION BY ATTORNEY BANSLEY

Q Mr. Chapman, I thought I heard you say that it was your practice that when the Court canvasses a client who is going to testify or not going to testify, that you would also put on the record what the reasons were for your recommendation;  do I have that correct, sir?

A No. No. If a client chose to testify,—and this a general statement of my practice in criminal trials—this is always done outside the presence of a jury or course—if a client chose to testify against my counsel—without revealing any attorney-client privileges—I always put on the record a brief statement that it was against my counsel.   I just found that always useful to put in.   In this case, he chose to accept my counsel and not testify, so there was no reason to state anything.

Q With respect to Mr. Bender, I believe it was your testimony that it is your recollection Mr. Bender visited with Mr. Johnson between the end of the first trial and the beginning of the second trial, two or three times?

A Certainly once, and I think twice.   Three, you know, at that point, I cease to have a recollection.   I didn't go through all of Mr. Bender's material to pull that date out.   I know I sent him to see him.

Q So you don't know—you are not aware that you have any written documentation of the visit or visits by Mr. Bender?

A I may.

Q But you don't have personal recollection as you sit here right now?

A No, because I didn't look at the materials with an eye towards that, no.

ATTY. BANSLEY:  I have no further questions.   Thank you, Mr. Chapman.

ATTY. HOWE:  I have no other questions but I would just ask if he could stick around until we finish the proceeding, as far as the petitioner's case, in case I need to recall him as the respondent's witness.

THE COURT:  Mr. Chapman, do you mind hanging around and guess listening if there is any rebuttal evidence?

WITNESS:  I don't mind, Your Honor.   I—we have Mr. Johnson as getting back on the stand—

THE COURT:—I  don't know.   I mean that is the intimation.

ATTY. BANSLEY:  Excuse me, Your Honor, if I may just jump in here—if I could have a minute or two just with my client in place, maybe we can make that determination now.

THE COURT:  Okay.

ATTY. BANSLEY:  Mr. Johnson will not be testifying further, Your Honor.

THE COURT:  All right.   Do you have any further evidence you wish to present?

ATTY. BANSLEY:  No, Your Honor.   Petitioner rests.

THE COURT:  Mr. Chapman, I believe that the petitioner has rested.   And, Ms. Howe, do you have any objection to us allowing Mr. Chapman to enjoying the Florida sun?

ATTY. HOWE:  No. Is the sun shining today in Florida, Attorney Chapman?

WITNESS:  It is.   We have thunderstorms later.

ATTY. HOWE:  Okay.

WITNESS:  It is nice to see you all.   I can't say I miss the Rockville Courthouse, but thank you very much for allowing me to testify this way.

ATTY. HOWE:  Thank you, sir.   I have nothing further then.

THE COURT:  Thank you very much, Mr. Chapman.

WITNESS:  Thank you, Your Honor.

THE COURT:  Petitioner has rested, am I correct?

Does the respondent have any evidence to present?

ATTY. HOWE:  Yes, I would like to call Assistant State's Attorney James Clark.

THE COURT:  Mr. Clark, if you would come up here to the witness stand, please.

When the clerk finishes her electronic business, she will swear you in.

MR. CLARK:  Good morning.

THE COURT:  Good morning.

CLERK:  Please raise your right hand.

JAMES CLARK, of 234 Church Street, Room 402, New Haven, was called as a witness, first being duly sworn and testified under oath as follows.

CLERK:  Please state your name, spelling your last name and state your business address for the Court.

WITNESS:  My name is James Clark.   The last name is spelled C-l-a-r-k, business address is 234 Church Street, Room 402, in New Haven.

THE COURT:  Go ahead.

DIRECT EXAMINATION BY ATTORNEY HOWE

Q Mr. Clark, were you the attorney who prosecuted Johnny Johnson and his co-defendant in the first set of trials and the second trial of Mr. Johnson in 2001?

A Yes.

Q Okay. Now I would ask you, sir, in terms of the Johnny Johnson, Carlos Ashe, Darcus Henry and Sean Adams,—in terms of those cases, who is the prosecutor who was involved in the cases prior to you taking over the files?

A I believe it was Michael Pepper.

Q Okay. And at the time that Attorney Pepper represented the State, was that prior to all four of these defendants going on trial?

A Yes. He did not try any of them.

Q Okay. You were the attorney who tried all the defendants?

A Yes. The only trial done with any of those people, were done by me.   Well, actually, I think Sean Adams had a trial on another case with Mr. Pepper before all of this.

Q Okay.

A And the murder we are talking about was only my case.

Q And would it be fair to say that initially you tried all four defendants together?

A Correct?

Q Two of them were convicted, two of them were a mistrial?

A That's correct.

Q And then after the mistrial, Mr. Ashe had a trial?

A Yes.

Q And then Mr. Johnson had a trial?

A Yes.

Q Okay. Now, prior to all four of the defendants having any trials, was an offer made by Attorney Pepper?

A I know from reading the file that there was such an offer made.

Q And would that be the 25 years to murder, made by Attorney Pepper?

A (Inaudible)—yes.

Q Okay. Once you became the prosecutor and the cases were set down for trial, and I am talking about the stage when all four defendants were going to be tried together, was that offer of 25 years on the table anymore?

A I don't believe so, no.   I came in at a time when they were on the trial list because those offers had been rejected and withdrawn.

Q Okay. So those offers—the offer of 25 years was off the table prior to the four defendants going on trial?

A Correct.   Judge Fasano's practice then, and as long as he practiced was—in New Haven—was that when a case went on the trial list, the prior offers were gone until and unless there were further negotiations.

Q Okay. And after the mistrial on Mr. Johnson's first trial, did you at any time renew any offer of 25 years to Mr. Johnson's attorney, Attorney Chapman?

A No.

Q And after Mr. Ashe's trial, was that offer of—so was that offer of 25 years at any point on the table after the mistrial?

A An offer of 25 years for this case, from me, would never have occurred.

Q Okay. Thank you.   You never at any point renewed any offer of 25 years?

A No. I would have never have offered 25 years to begin with.

Q Okay. Thank you.

A I mean there was a specific focus of this trial, which was to take down the Island brothers to the extent that we can do that.   That is what a career criminal does.   And the 25 offer would have never come from me.

Q So if Mr.—to put it in somewhat of a hypothetical, if Mr. Johnson's attorney had requested of you at any point, once you became involved in the case, would you consider a plea to murder and a sentence of 25 years;  your response would have been what?

A It would have been no.

ATTY. BANSLEY:  Objection, Your Honor, that appears to be speculation on a hypothetical.

THE COURT:  Sustained.

CONTINUED–DIRECT EXAMINATION BY ATTORNEY HOWE

Q Do you recall any request for a 25–year sentence for murder, made to you?

A No.

Q And if such request had been made your answer would have been what?

ATTY. BANSLEY:  Speculation, Your Honor.

THE COURT:  Well, Mr. Bansley, are you not alleging that counsel was ineffective for not asking the prosecutor?

ATTY. BANSLEY:  That's correct, Your Honor, but it appears still to be speculation.

THE COURT:  Do you not have to show prejudice?

ATTY. BANSLEY:  I'm sorry?

THE COURT:  Don't you have to show prejudice?

ATTY. BANSLEY:  That's correct, Your Honor.

THE COURT:  And wouldn't the prejudice be the fact that the 25–year offer would have been accepted?

ATTY. BANSLEY:  I don't believe that is absolutely correct, Your Honor.   Because when it is too self-serving for the State—at this point, 6 years later—

THE COURT:—well, i Understand that—

ATTY. BANSLEY:—had  it been communicated and the state had rejected—

THE COURT:—that  may not—i Mean, you know, i See it as relevant.

ATTY. BANSLEY:  Then I will withdraw the objection.

THE COURT:  I don't know how credible it is, but all right, the objection is withdrawn.

You can answer the question.

Would you have accepted a request for a 25–year offer for murder?

WITNESS:  No, sir.

CONTINUED–DIRECT EXAMINATION BY ATTORNEY HOWE

Q In terms of had Mr. Johnson taken the witness stand;  to your knowledge did you have prior felonies to impeach him with?

A I have been reminded of this from a document that I have here.   I did.

ATTY. HOWE:  Thank you, I have nothing further for Attorney Clark.

THE COURT:  Cross-exam?

CROSS–EXAMINATION BY ATTORNEY BANSLEY

Q Mr. Clark, I believe you made it quite clear that Mr. Chapman did not communicate to you at any time during the conclusion of the first trial—the beginning of the first trial—an offer to plead for 25 years?

A You used the “first trial” twice, can you rephrase that for me?

Q From the first trial, until the beginning of the second trial, did Mr. Chapman ever communicate to you that Mr. Johnson was willing to accept a deal for 25 years?

A I don't recall.

Q Do you recall during that period of time, approximately how many pretrial conferences you have had?

A Concerning Mr. Johnson's case?

Q Yes.

A I would guess that the maximum would be one, I don't remember any but ․ the issue would have been scheduling questions.   There would not have been with Judge Fasano—in my experience there would not have been a renewal of any kind of negations unless the lawyers brought it to him.   It would have been a question of who is going to be tried next, and when, because the case never came off the trial list.

Q So you don't recall Mr. Chapman addressing Mr. Johnson's offer of 25 years directly to Judge Fasano?

A I don't remember either way.

Q The trial Judge in the first case was Judge Licari;  is that correct?

A Yes, sir.

Q I have nothing further.   Thank you.   Thank you, Mr. Clark.

THE COURT:  Any redirect?

ATTY. HOWE:  No.

THE COURT:  Mr. Clark here with a subpoena or voluntarily?

ATTY. HOWE:  Neither.   He is here—

WITNESS:—I  am here because Ms. Howe asks, and I do what she tells me to do.

ATTY. HOWE:  Thank you.

WITNESS:  That may be stronger than a subpoena, Your Honor.

THE COURT:  That's okay;  I understand that.

Can he go home?

ATTY. HOWE:  Yeah.

THE COURT:  Okay, you are free to go, sir.

Thank you very much.

ATTY. HOWE:  Respondent rests, Your Honor.

THE COURT:  Either side wish to make brief closing argument?

ATTY. BANSLEY:  Petitioner does not, Your Honor.

THE COURT:  Ms. Howe, do you wish to make closing argument?

ATTY. HOWE:  No, Your Honor.

THE COURT:  All right.

The following will constitute the decision of the Court:  I have reviewed the documentary evidence and listened to the evidence.

The petition will be denied.

In Strickland v. Washington contained is the—of course is the seminal case dealing with ineffective assistance of counsel.   There are two prongs to the Strickland test.   In order to prove ineffective assistance of counsel a petitioner must show deficient performance and prejudice.   Failure to show both results in a denial of the petition.

The burden of proof in a habeas proceeding, of course, rests with the petitioner, because at this point in the proceeding the petitioner doesn't stand before this Court as an innocent person accused of a crime, he stands before this Court as a person who has been convicted of a crime.   Habeas Courts are cautioned not to indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or admissions from the trial counsel's perspective at trial.

As I noted, two grounds:  deficient performance and prejudice, the two prongs of Strickland must be proven in order to prevail.   Furthermore, a Habeas Court can find against the petitioner on either ground, whichever is easier, and that is Nardini v. Manson.

Now in this case, there are specific allegations of ineffective assistance of counsel raised against Mr. Chapman.   As so far as the pre-trial-plea offer, the evidence is clear that, there was no plea offer prior to the second trial.   What plea offers had been offered by the State had been expressly rejected by Mr. Johnson.   A defendant does not have a right, a constitutional right, to enter into a pretrial agreement.   Likewise, there is no obligation on the part of the Government to make a pretrial offer.   The State has every right to proceed to trial, and that is exactly what took place in this case.   Petitioner cannot come into this courtroom now and complain that he didn't get a pretrial agreement when, in fact, he has no right to a pretrial agreement.

Prosecutor has made it crystal clear—Mr.   Clark, in his testimony—that there was no offer of 25 years.   He would have not an offer of 25 years.   And had it been communicated to him that Mr. Johnson wanted an offer of 25 years, it would not have been accepted.   It appears clear to this Court, that to the extent that there is any pretrial offer of 25 years, it seems to have existed only in the mind of Mr. Johnson and nobody else.

As to the issue of the petitioner's testimony at his trial, it is clear that the petitioner was fully advised of his right to testify, fully counseled by his attorney as to his right to testify, and it is clear to this Court that in no way did the trial counsel refuse to permit the petitioner to testify.   It is clear that the petitioner was more than aware of his right, he was canvassed on the record and expressly declined to testify.   And the Court finds no deficient performance in Attorney Chapman's conduct insofar as the issue of advising his client as to whether he should or should not testify.

The issue of whether Mr. Chapman visited the petitioner in the pretrial confinement facility is essentially a Red Herring;  there is no requirement that an attorney visit his client in jail.   There is, in fact, no requirement that an attorney actually visit with his client ever, although I would wonder how one can prepare for trial without doing so.   But it is clear from Mr. Chapman's testimony that Mr. Johnson and Mr. Chapman had sufficient opportunity to be together to discuss the case, to prepare the case during the court visits, and the fact that none of these visits took place at the pretrial detention facility is immaterial.   No case law has been cited to make it a requirement of an attorney that he visit his client in jail.

Now as to the question of whether the State's Gang Expert should have been the subject of a Motion to Suppress, it is clear that Mr. Chapman did, in fact, object to the testimony.   I don't see any basis upon which a Motion to Suppress could have been filed, so I see no deficient performance or prejudice on that count either.   As to whether the trial-defense counsel failed or neglected to retain the services of a Gang Expert;  well, it's clear he didn't, however;  there has been no proof presented to this Court that A, that was deficient performance—that is falling below the standard of care—or most importantly, B, this Court has no clue as to what a Defense–Gang Expert might have said, so this Court simply has no basis whatsoever upon which to make a finding of prejudice.   That even if the failure to call the Gang Expert was deficient performance that the petitioner was in some way prejudiced by it.

And finally, in regard to the failure to object to the prosecutor's statements during closing argument;  The defense of procedural default had been raised as to that.   The Court will find that the petitioner is procedurally defaulted as to that.   The issue could have, and should have been raised on appeal;  it was not, although there were other attacks made on the closing argument on appeal.   The defense of procedural default having been raised in the return, it has not been expressly denied in the reply.   In fact, the reply is silent as to why there is no procedural default as to the argument about the closing argument.   Moreover, even if it had been raised in the return, the Court has received no evidence that would demonstrate a cause for that procedural default and prejudice to the petitioner as a result.   Consequently, the last paragraph, 11J, is found to be procedurally defaulted.

The petitioner has failed in his burden of proof;  there is no reason to doubt the reliability of the conviction.   Consequently, the petition shall be denied.

Would you serve the appeal papers upon Mr. Johnson?

All right.   Appeal papers have been served.

And the issue raised in this Court was ineffective assistance of counsel, trial defense counsel, that issue has been litigated and decided adversely.

Other issues may perhaps be outstanding but as to ineffective assistance of counsel, the issue has been litigated and decided adversely.

Certainly you can consider pursuing an appeal but I will reveal your petition for certification to appeal, if and when one comes in.

Mr. Johnson, I am sorry for you, and I do wish you the best of luck.

S.T. Fuger, Jr., J.

Fuger, S.T., J.