Caesar O'Neil v. Warden, State Prison (2011)

HABEAS DECISION

DECISION

THE COURT:  I have reviewed the testimony in this trial, reviewed the exhibits, pleadings, considered the arguments of counsel and for the following reasons the petition for a writ of habeas corpus is denied.

I'd like to start with just a review of the procedural history of this case because it's troubling, although it doesn't necessarily relate to the merits, but this crime, as we all know, occurred in 1993.   The trials occurred in 1999.

I don't know why it took so long to get to trial.   I know there was a substantial period of investigation, and I'm not suggesting that the petitioner was to blame in any way in the delay, but, unfortunately, it took six years to go to trial, then it took three years before the direct appeal was decided by the Connecticut Supreme Court.

And again, I'm not suggesting any delay by the petitioner in that regard, but it's again unfortunate that the conviction didn't become final until nine years after the crime occurred, but then there was a three-year delay between 2002 and 2005 before the petitioner filed his habeas petition, and I don't know the explanation for that delay, but this sort of delay tends to detract from the claim that there was a miscarriage of justice;  otherwise, it seems to me the petition would have been filed right away.   The petition was filed in 2005.

Unfortunately, here we are in 2010 trying the case.   Again, I'm not suggesting it was petitioner's fault for the delay.   I'm not really sure of the explanation there was a change in counsel, but we are here 2010 hearing a habeas petition for a crime that occurred in 1993, seventeen years after the crime.   The age of this case calls out for some sort of remedy to protect the finality of old convictions.   The legislature, however, has not seen fit to pass a statute of limitations, the respondent has not raised the defense of laches, so I have no choice but to address this case on the merits.

The petitioner's two claims are found in count one of the allegations of the petition and the petitioner claims that there was an inadequate investigation by trial counsel, Mr. Hopkins, and that Mr. Hopkins failed to interview potential defense witnesses.   Paragraphs (c) and (d) of ․ or subparagraphs (c) and (d) of paragraph six.

The petitioner's counsel commendably admits that there was no evidence to support the third count of actual innocence and so I denied that third count.   The second count was not pursued, so we're left with subparagraphs (c) and (d) under count six, or under paragraph six.

The first count that I'll discuss is the claim that there was inadequate pretrial investigation, failed to ․ Mr. Hopkins failed to obtain an investigator or otherwise investigate the matter.

In this regard, I credit the testimony of Mr. Hopkins.   He was and is now a very experienced defense attorney who has tried many murder cases and essentially knew what he was doing.   He did prepare for trial, went over all the reports in this case.   He saw nothing additional to investigate by way of an investigator or otherwise that would have exonerated the petitioner.

In addition, at the time of the second trial Mr. Hopkins had the benefit of a dry run, in that this case had already been tried once, which is an added and unusual benefit to defense counsel in this situation.

I credit Mr. Hopkins' testimony that he saw no need for additional investigation, and with this sort of claim it is the petitioner's burden to show what benefit additional investigation would have revealed.   See Holley v. Commissioner of Correction, 62 Conn.App. 170 at 175, 2001.

The petitioner has failed to show what benefit additional investigation would have revealed, and so that count, or sub-count is denied.

The other count is that Mr. Hopkins was ineffective by failing to interview the witnesses prior to trial.

The only witness mentioned who did not testify is Maurice Jones.   I credit Mr. Hopkins' testimony that he did not attempt to find Mr. Jones because the information he had about him—namely, that he made a statement that Smalls was not in the vehicle, seemed incredible at the time.

There is no showing and no evidence that the testimony of Mr. Jones would have benefited the petitioner in any way.   Therefore, there was certainly no ineffective assistance in failing to talk to Mr. Jones prior to trial.

The rest of the petitioner's claim is an unusual claim in that the petitioner alleges ineffective assistance in not interviewing witnesses who did testify at trial.   Given that they did testify, we know what they actually said, and it's virtually speculation to say that a pretrial interview would have led to any testimony that was different or especially favorable to the petitioner.

I credit Mr. Hopkins' testimony that there was no need to interview police witnesses before the trial.   It may be somewhat uncommon for defense counsel to do that generally, but here it's particularly unnecessary.   The police witnesses did not implicate the petitioner.   Further, their testimony was consistent with their reports, which proves that pretrial interview would have done little good, nor did the petitioner elicit anything in court that would have revealed any benefit from pretrial interviews.

What remains is the testimony of Eddie Smalls.   Mr. Hopkins testified that he found Mr. Smalls unreliable, and this would have been especially true after the first trial when Mr. Smalls did testify, that Mr. Smalls had a past criminal history, that Mr. Smalls was criminally involved in this case, and, therefore, Mr. Hopkins did not attempt to interview him prior to trial.   This appears to be a sound decision.   From the testimony that I've just recited of Mr. Hopkins, which I credit, it doesn't give much reason to interview Mr. Smalls in this case.

Mr. Smalls testified today and now claims that the petitioner was not involved in the shooting.   Smalls essentially admits to lying under oath when he testified at the criminal trial.   The question is was he lying then or is he lying today?

If you have to ask this question about a witness, then there's reason to believe that that person would not be a good witness to call to the stand.   There are substantial reasons to doubt Mr. Smalls' current testimony, his testimony today that the petitioner was not involved.

Mr. Smalls admits that today is the first time he has ever told this story.   Why would he wait seventeen years to tell this story?   Perhaps because the statute of limitations has run, but it ran after five years.   He said, however, that he was not even aware of that.

The fact is that Mr. Smalls inculpated the petitioner under oath to the Bridgeport Police, at trial twice, and signed a cooperation agreement with the federal government in which he agreed to tell the truth and cooperate with the state and federal government and it's hard to believe that Mr. Smalls was lying on each of these occasions, either under oath or contrary to his agreement.

Why would the petitioner try to kill or harm Mr. Smalls through his letter that's in ․ that was evidence in this trial if Mr. Smalls were not involved at all in this matter, as Mr. Smalls testified today?

Mr. Smalls' testimony that he lied to the victim's mother is incredible.   Why tell her, as he claimed, as he apparently did, that he was in the car, but not responsible for Mr. Suter's death if the truth were that he was not in the car at all?   Why not tell her that?   It makes no sense that Mr. Smalls would tell Mr. Suter's mother that he was in the car to try to limit his responsibility for Mr. Suter's death, as he testified today.

Mr. Smalls is a multiple-convicted felon whose credibility is very suspect.

So, as I said, there are all those substantial reasons to doubt his testimony today.   But, in any event, the real question is whether Mr. Smalls would have told the story that he told today to Mr. Hopkins if Mr. Hopkins had interviewed him prior to trial and then testified to that same version if he were called to the stand by Mr. Hopkins.

The petitioner did not ask Mr. Smalls what he would have told Mr. Hopkins prior to trial, and so we don't know the answer to that, and it is the petitioner's burden to prove that there would be an additional benefit in talking to these witnesses before trial, so it's the petitioner failing in proof.

But, in any event, there is no reason to believe that Mr. Small would have told Mr. Hopkins the version of the incident that he gave today.   Mr. Smalls was committed to the version of the incident that he actually gave, as he testified, because it benefited him.   In fact, the actual testimony of Mr. Smalls in Exhibit Six, particularly pages 56 to 57 and 124 to 130, reveals that Mr. Smalls had four pending state felony cases and had a pending federal case in which he pleaded guilty and was facing life in prison.   It is unlikely that under those circumstances that Mr. Smalls would have given a version of the incident that exculpated the petitioner.   As Mr. Smalls said, he was committed to the version of the incident he gave because it benefited him.   In addition, it is unlikely that someone facing all these charges would cooperate with defense counsel at all for fear it would hurt his chances with the government.

Further, Mr. Smalls testified today that he had issues with the petitioner at the time because essentially they were in rival gangs, so again it's hard to see why Mr. Smalls would have cooperated in any way with Mr ․ with the petitioner's attorney.

Further, Mr. Smalls has given the inculpatory version of the incident, or had given the inculpatory version of the incident to everyone else he talked to, the police, the jury in the first trial, even the victim's mother.   Why would he give a completely opposite version to petitioner's lawyer?

Thus, the petitioner did not prove that there would have been any benefit in Mr. Hopkins talking to Mr. Smalls before trial.   Certainly, there can be no showing prejudice because Mr. Smalls actually did testify at the trial and Mr. Hopkins had an opportunity to question him thoroughly, which he did on cross-examination by way of leading questions, and the testimony was still inculpatory against the petitioner.

Given what I have already detailed, there is no basis to say that Mr. Smalls would have testified differently and favorably for the petitioner it called by defense counsel rather than counsel for the state.   In either event it appears he would have inculpated the petitioner.

For these reasons, the petition for a writ of habeas corpus is denied.

3/1/11

Schuman, J.

Schuman, Carl J., J.