Joshua Smith v. Commissioner of Correction (2011)

Memorandum of Decision

The petitioner, Joshua Smith, alleges in his petition for a Writ of Habeas Corpus filed on September 13, 2005 that his conviction for murder in violation of CGS §§ 53a–54a(a) was obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut.   He specifically claims to have been deprived of the effective assistance of Atty. Michael Sherman ¹ who served as his trial defense counsel, by reason of Mr. Sherman's alleged failure to conduct a proper pretrial investigation.   In addition, the petitioner claims that there was exculpatory material unlawfully withheld by the prosecution that amounted to a violation of the standards set forth by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963).

This matter came on for trial before this Court on seven separate days spread out between February 1, 2010 and July 14, 2010 at which time testimony was received from numerous witnesses, some of whom testified (as agreed upon by counsel) via video taped deposition.   In addition, the Court received several pieces of documentary evidence, including the transcript of the petitioner's underlying criminal trial.   The court received the final post-trial reply brief on November 21, 2010.   As is explained in greater detail hereafter, this Court finds that the petitioner has failed in submitting persuasive evidence to meet his burden of proof and this petition shall be denied.

The Court has carefully reviewed all of the voluminous testimony and documentary 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 Fairfield entitled State v. Smith in which he was charged committing murder in violation of CGS § 53a–54a(a).

2. Attorney Michael Sherman represented the petitioner at trial and Atty. Richard Meehan on his direct appeal.

3. As regards the charged crimes, the jury reasonably could have found the following facts.  “On February 11, 1994, the victim, Devon Laidley, and his girlfriend, Tonia McKoy, were at a house at 167 South Main Street in the city of Norwalk.   The [Petitioner] arrived at the residence, stood on the front porch and engaged in a conversation with a friend, Willis Heron.   Subsequently, the victim emerged from the residence and walked down the driveway toward a gate near the front sidewalk.   Suddenly, the [Petitioner] jumped off the porch, pulled out a gun and fired at the victim, who was standing at the gate.   When the shots were fired, the victim tried to run away from the [petitioner].   The [petitioner], still firing his gun, pursued the victim.   When the victim stumbled and fell to the ground, the [petitioner] approached him and fired the gun at him two or three more times at close range.   In total, the [petitioner] fired approximately nine to twelve shots at the victim.   The victim later died, and an autopsy revealed that he was hit by eight bullets, one of which pierced his heart.   Both Heron and McKoy witnessed the killing.” 2

4. The petitioner, after a trial to the jury, was convicted.

5. The petitioner was thereafter sentenced by the court, Dean, J., to a total effective sentence of forty-five years to serve.

6. Additional facts shall be discussed as necessary.

Discussion of Law

It is important at the outset to understand a critical difference between the legal situation of a person who has been accused of a crime as opposed to one who has been convicted of a crime.   While the person who has been accused of a crime is entitled to the all important presumption of his or her innocence, the petitioner in a habeas corpus petition is not.   That is because the habeas petitioner is not a defendant, he or she is, in truth, a convict.³  “It is undoubtedly true that ‘[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt.  In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).’  Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) ․ The presumption of innocence, however, does not outlast the judgment of conviction at trial ․ Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is ‘innocent,’ but on the contrary as one who has been convicted by due process of law.”   Summerville v. Warden, 229 Conn. 397 at 422–23 (1994).   The full burden of proof in a habeas petition, therefore, rightfully rests upon the petitioner.

In the instant case, the petitioner alleges that his trial defense counsel was ineffective because he failed to conduct an adequate pretrial investigation.   Further, the petitioner contends that had Atty. Sherman interviewed all of the witnesses, he'd have found evidence that could have established reasonable doubt.   In support of this allegation, the petitioner presented numerous witnesses at the habeas trial whom he now says should have been interviewed and called to testify at trial because the testimony that they had to offer would have led the jury to the conclusion that the petitioner should have been acquitted.   However, in essence, this habeas petition is but a slight variation on the issue that the petitioner raised in his initial appeal some fourteen years ago.   There, Judge Schaller ⁴ writing for the Appellate Court noted that:  “the defendant next claims that there was insufficient evidence to support his murder conviction.   To support his claim, the defendant points to inconsistencies in the testimony of certain witnesses regarding the height of the gunman.   He also cites the inability of one witness to provide the gunman's name to the police immediately after the incident, and another witness' failure to come forward offering to testify until over one year later.”  State v. Smith, 46 Conn.App. 600 at 607 (1997).   The evidence presented at the habeas trial by the petitioner was individually and collectively unimpressive and, in large part, useless because the “witnesses” were unable, or unwilling, to definitively place themselves at the murder scene, could not recall what took place, or refused to provide testimony.   The evidence at the habeas trial clearly does not arise to the level of proving with a preponderance of the evidence that this evidence, had it been introduced at petitioner's trial, would have made any difference in the outcome.   In essence, this evidence merely attempts to add additional evidence to his claim that the evidence was insufficient.

In order to prevail on the issue of whether there has been ineffective representation by the petitioner's counsel, the petitioner must satisfy both prongs of the test set forth by the cga 73298 United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief.   Specifically, the petitioner must first show “that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  Strickland, infra at 687.   If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving “that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.”  Strickland, infra at 687.   In short, the petitioner must show both deficiency and prejudice.   A failure to prove both, even though counsel's performance may have been substandard, will result in denial of the petition.

In the instant case, the petitioner must first prove that it was deficient performance by Attorney Sherman to fail to do those things that the petitioner alleges he failed to do.   If so, then the petitioner must next prove that there is a reasonable probability that he would have been acquitted of these charges had they done so.⁵

Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate the underlying case in a different manner, however, that is precisely what took place with this habeas trial.   It is indisputable fact that many times if one had foreknowledge of certain events;  different courses might well have been taken.   Likewise, a habeas court, knowing the outcome of the trial, “may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial.”   Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998).  “A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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.”  Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).

Moreover, “[j]udicial 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 ․ The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges.   Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense.   Counsel's performance and even willingness to serve could be adversely affected.   Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client.”  Strickland v. Washington, 466 U.S. 668 at 688 (1984).

Justifiably, then, the burden of persuasion in a habeas case rests with the petitioner because of the “fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence.”   Summerville v. Warden, 229 Conn. 397 at 419 (1994).   There is, therefore, a strong societal interest “in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility.”  Id.

The petitioner in this case alleges his lawyer failed to conduct an adequate pretrial investigation.   This is not, however, the case.   While such a complaint is easily raised, it requires that the petitioner also provide evidence to support that the allegations he makes is true.   It is not enough for a petitioner to come into the habeas court and provide the court with a laundry list of witnesses his lawyer failed to interview.   That, unfortunately, is in essence, what the petitioner has done in this case.   The petitioner overlooks the fact that his initial insistence upon telling his lawyer that he had an alibi, diverted his attorney during the pretrial investigation stage.   After conducting his investigation, the attorney discovered that the alibi was not viable and did not present that defense as it would have failed and, in the words of Atty. Sherman, been fatal to the defense case.

Notwithstanding, it is not even necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner.  “A reviewing court can find against a petitioner on either ground, whichever is easier.  Strickland v. Washington, supra, 697;  see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) (‘[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice’)” Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).

It is abundantly clear that there was no prejudice demonstrated at the habeas trial.   The witnesses that the petitioner says should have been interviewed and would have changed the outcome were vague, contradictory and simply not exculpatory.   The petitioner did not present any evidence at the habeas trial that would lead this court to conclude that there was any likelihood that the outcome of the trial would have been any different.  “To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal.  Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962).  D'Amico v. Manson, 193 Conn. 144, 156–57, 476 A.2d 543 (1984);  see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989).   In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction.  (Internal quotation marks omitted.)  Buckley v. Commissioner of Correction, 222 Conn. 460–61.”  Summerville v. Warden, 229 Conn. 397 at 419 (1994).   The petitioner's evidence fails to overcome that burden.

This admonition from the United States Supreme Court bears reiteration.  “A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged ‘action might be considered sound trial strategy’ ․ [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable and professional judgment.”  (Citations omitted.)  Strickland v. Washington, supra, 466 U.S. 689–90.   This Court will find that the strategic and tactical decisions of counsel, as well as the manner in which he carried them out to be within the acceptable range of performance.⁶  There is, therefore, no finding of deficient performance nor is there any prejudice.

The petitioner also alleges that his right to due process and a fair trial was violated by the state's failure to disclose exculpatory evidence.   Specifically, he asserts that the state did not disclose certain photographs.   The petitioner argues that these photographs show that there was a knit cap observed lying in the snow and that with the testimony that the shooter wore such a cap, the recovery of the cap and DNA testing on biological material that may be found therein could have exculpated the defendant.

The United States Supreme Court has held that “the suppression by the prosecution of evidence favorable to an accused ․ violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1193, 10 L.Ed.2d 215 (1963).  “This type of violation of the defendant's due process rights is commonly referred to as a Brady violation.”  (Internal quotation marks omitted.)  Quintana v. Commissioner of Correction, 55 Conn.App. 426, 436–37, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999).  “To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner],and (3) it was material [either to guilt or to punishment].”  State v. Pink, 274 Conn. 241, 253, 875 A.2d 447 (2005).  “[E]vidence is favorable if it is either exculpatory or impeaching.”  Morant v. Commissioner of Correction, 117 Conn.App. 279, 285, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).   “[E]vidence is material only if there is a reasonable probability that, had the evidence disclosed to the defense, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  (Internal quotation marks omitted.)  State v. Floyd, 253 Conn. 700, 744, 756 A.2d 799 (2000).

Contrary to the petitioner's contention, the evidence allegedly suppressed by the state was not shown to be favorable to him.   The petitioner's contentions that he would have been exonerated if the hat were to be tested is simply too speculative to allow this court to take the extraordinary step of vacating the petitioner's conviction.   While it is conceivable that the DNA evidence the petitioner says would have helped exonerate him might be found within the hat, no such evidence was presented to this court.⁷  There simply is no way that this habeas court can conclude that the petitioner has proven that the failure to disclose the photos was a Brady violation.   Any such finding would be purely speculative.

Accordingly, the Petition for a Writ of Habeas Corpus is denied.

S.T. Fuger, Jr., Judge

Tyrone G. Biniarz Court Officer

FOOTNOTES

FN1. While Atty. Sherman has, of late, experienced some legal difficulties of his own, these matters are in no way connected with, or implicated in his representation of the petitioner..  FN1. While Atty. Sherman has, of late, experienced some legal difficulties of his own, these matters are in no way connected with, or implicated in his representation of the petitioner.

FN2. See State v. Smith, 46 Conn.App. 600 at 601 (1997), cert. den., 243 Conn. 935 (1997)..  FN2. See State v. Smith, 46 Conn.App. 600 at 601 (1997), cert. den., 243 Conn. 935 (1997).

FN3. Used in the sense of defining the status of an individual.   That is, one who appears before the court, convicted of a crime, as opposed to accused of a crime..  FN3. Used in the sense of defining the status of an individual.   That is, one who appears before the court, convicted of a crime, as opposed to accused of a crime.

FN4. Later appointed to the Supreme Court from which he retired as Justice Schaller..  FN4. Later appointed to the Supreme Court from which he retired as Justice Schaller.

FN5. Petitioner makes the comment in his Reply Brief that he need not prove that he would have been acquitted.   Instead, the petitioner asserts that Strickland merely requires that the petitioner show that but for his trial defense counsel's deficient performance, that there was a reasonable likelihood that the result of his trial would have been more favorable.   Given that the petitioner asserts that the missing evidence would lead a jury to be more likely to find reasonable doubt, the result of such a situation would have been acquittal.   Consequently, in the instant case, it is clear that the petitioner must indeed show that he would have been acquitted had the jury heard the evidence adduced at the habeas trial.   It is clear that this simply is not the case.   Even considering all of the evidence at both trials, this Court sees no way that a reasonable jury would have reached any other verdict than it did, that is Guilty..  FN5. Petitioner makes the comment in his Reply Brief that he need not prove that he would have been acquitted.   Instead, the petitioner asserts that Strickland merely requires that the petitioner show that but for his trial defense counsel's deficient performance, that there was a reasonable likelihood that the result of his trial would have been more favorable.   Given that the petitioner asserts that the missing evidence would lead a jury to be more likely to find reasonable doubt, the result of such a situation would have been acquittal.   Consequently, in the instant case, it is clear that the petitioner must indeed show that he would have been acquitted had the jury heard the evidence adduced at the habeas trial.   It is clear that this simply is not the case.   Even considering all of the evidence at both trials, this Court sees no way that a reasonable jury would have reached any other verdict than it did, that is Guilty.

FN6. Of course, even though a habeas court is to give great deference to strategic and tactical decisions of trial defense counsel, such decisions must meet an objective standard of reasonableness, “it does not follow necessarily that, in every instance, trial counsel's strategy concerning these decisions is sound.”   See Bryant v. Commissioner of Correction, 290 Conn. 502 at 521 (2009)..  FN6. Of course, even though a habeas court is to give great deference to strategic and tactical decisions of trial defense counsel, such decisions must meet an objective standard of reasonableness, “it does not follow necessarily that, in every instance, trial counsel's strategy concerning these decisions is sound.”   See Bryant v. Commissioner of Correction, 290 Conn. 502 at 521 (2009).

FN7. It must be noted that the habeas court does not have the independent authority to order DNA testing.   That duty has been assigned to the trial court.   In this case, the petitioner did go back to the trial court to seek DNA testing, however, that request was turned down because:  “The evidence presented failed to establish a ‘reasonable probability’ that the DNA testing of the ‘black hat’ would produce results with the potential to alter the verdict or reduce the petitioner's sentence.   In sum, the court finds that the petitioner offered no admissible evidence which would allow the predicate finding to be made.“Accordingly, having failed to satisfy the requirements under § 54–102kk(c), the petition for post-verdict DNA testing is, therefore, denied.”  State of Connecticut v. Joshua Smith, 2009 Ct.Sup. 16232 (Comerford, J., Sept 30, 2009).   By dint of this ruling, the petitioner was essentially forestalled from presenting the DNA evidence he wanted to present..  FN7. It must be noted that the habeas court does not have the independent authority to order DNA testing.   That duty has been assigned to the trial court.   In this case, the petitioner did go back to the trial court to seek DNA testing, however, that request was turned down because:  “The evidence presented failed to establish a ‘reasonable probability’ that the DNA testing of the ‘black hat’ would produce results with the potential to alter the verdict or reduce the petitioner's sentence.   In sum, the court finds that the petitioner offered no admissible evidence which would allow the predicate finding to be made.“Accordingly, having failed to satisfy the requirements under § 54–102kk(c), the petition for post-verdict DNA testing is, therefore, denied.”  State of Connecticut v. Joshua Smith, 2009 Ct.Sup. 16232 (Comerford, J., Sept 30, 2009).   By dint of this ruling, the petitioner was essentially forestalled from presenting the DNA evidence he wanted to present.

Fuger, S.T., J.