Frederick Payne v. Warden, State Prison (2011)

THE COURT:  Well, this case was a relatively brief case.   In deciding this issue and this motion, the record clearly speaks for itself.   It's approximately eleven thirty a.m. Evidence commenced at 11:02:06 a.m. and consisted entirely of testimony by the petitioner.   The Court, as is the Court's custom, takes very detailed notes of the testimony in the case.   And I've listened, as I always do, with a keen ear to all witnesses, and Mr. Payne is no exception.

This is a claim of ineffective assistance of counsel, and it's a claim that arises from a plea of guilty on or about September 8, 2005.   With regard to this case, certainly in evaluating the issues of deficient performance and prejudice, all parties are guided by the United States Supreme Court of Strickland v. Washington, 466 U.S. 668 (1984), which requires the petitioner to prove deficient performance and prejudice.

In cases arising from pleas of guilty, the United States Supreme Court in Hill v. Lockhart modified the Strickland standard and stated 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've insisted on going to trial.   And that is from Hill as cited by Ricks v. Commissioner of Correction, 98 Conn.App. 497, a 2006 decision of the State Appellate Court.  Hill v. Lockhart is at 474 U.S. 52.   Counsel for the respondent accurately also cited the case of Copas v. Commissioner of Correction.   Here in deciding the issue of a motion for directed verdict, the Court should be reluctant to grant such a motion unless it is clear in viewing the light—the facts most favorable to the petitioner there's an absence of proof.

On that particular issue, I've been preparing for a trial next week in the matter of Lapointe v. Commissioner.   Lapointe, the habeas case arises from the criminal case of State v. Lapointe, which was a decision of the Connecticut Supreme Court, I believe issued in 2009, which affirmed in part and reversed in part a decision by the Honorable Stan Fuger in a habeas decision arising from Mr. Lapointe's conviction of numerous charges, including arson, murder, rape or sexual assault.   So I have reviewed recently the actual law without citing it today on motions for a directed verdict.

Based upon the evidence in the record, the Court is constrained to agree with counsel for the respondent, Mr. McGuiness.   The petitioner did not provide any evidence, as is required, that he would have insisted on going to trial but for counsel's errors.

Mr. Payne in the course of eighteen minutes and forty-seven seconds completed his direct examination, and I know that time reference by virtue of The For the Record system, which the Court uses on the bench, which is an electronic data base which tracks in real time testimony in a trial.

Mr. Payne testified that he was a defendant in the matter of State v. Payne in the judicial district of New Haven.   A plea was entered September 8, 2005.   Mr. Paul, Attorney Paul was his attorney, notwithstanding a misreference on the exhibit in evidence to one of his colleagues.   Apparently at the time of the plea disposition, Mr. Payne testified that Mr. Paul represented him on one charge.   He entered his guilty plea under the Alford Doctrine, pursuant to North Carolina v. Alford, the citation of which is omitted here.   He did it for several reasons.   He said his attorney promised him time served, no probation.

He was under the impression that a weapon claimed in the vehicle was in plain view between he and a codefendant in a middle console.   When he, Mr. Payne, went to Court he expected to be released on time served with no probation.   He initially did not look at any police reports.   There were two discussions on September 8, according to Mr. Payne, one of which occurred when Attorney Paul came downstairs to speak with him in the courthouse, and according to Mr. Payne confirmed that he, Mr. Payne, would be released on time served.   Again, Mr. Payne said he thought he would get no probation.

Mr. Payne also referenced at least a couple of conversations between he and his attorney which occurred at the Whalley Avenue jail.   This Court, in the course of my career as a criminal defense lawyer of twenty-one years, has been at the Whalley Avenue jail.   I'm familiar with that facility.   In any event, Mr. Payne states that police reports were read to him sporadically.   He said that he had an impression that the State's case consisted of someone informing the police that two black males were in a minivan pointing a gun or guns out of windows or window.

When Mr. Payne was stopped, he was in the driver's seat.   Mr. Payne says he believed the police version was that he, Mr. Payne, was in the passenger seat, that the weapon was between he and the unnamed co-accused.   He says the codefendant was severely intoxicated and rambunctious.   At some point, Mr. Payne says he received the copy of the police report and says it was contrary to what his attorney said and said that he was the driver of the vehicle.   The gun was pointed out the window.   He said “a subject,” a subject pointed a gun out the window.   When he waspulled over, Mr. Payne says he was searched.   The police found nothing on his person.   They then searched the car, and according to the report, they found the gun under the feet of the codefendant under a white bag, a .380 presumably ACP caliber weapon, in particular a firearm.

Anecdotally, this Court previously owned and was trained on the use of such a weapon.   Mr. Payne says that the attorney said the weapon was in plain view between “the both of us,” meaning presumably Mr. Payne, the co-accused.   Mr. Payne says his attorney never communicated that the weapon was on the floor, was under a lot of duress.   He says—he said the attorney said he was going home.   He had contacted his mother.   At some point in time prior to today, Mr. Payne's mother had passed away.   He had told his mother he was coming home on time served.   When he and Mr. Payne got to Court, they were happy, “they” meaning his mother and family members.   There was reference to children.   At some point Mr. Payne learned that there would be an added penalty.   He said Mr. Paul, the attorney, said there was probation.   At some point entering the courtroom, Mr. Payne says that Mr. Paul did not tell him there would be a conditional discharge.   He still entered the plea pursuant to the Alford Doctrine.   The codefendant, Mr. Payne says, had been sentenced.   Mr. Payne says he sat for seven and a half months.   The lawyer told him he was getting time served.   He gave his stuff away, property.   He went along with it, Mr. Payne said, and was given a conditional discharge.

Mr. Payne testified that he felt, “they were telling me the gun was in plain view,” and he, Mr. Payne, used the term “they,” and in the middle console.   We can't win the case.   You're going to get five years, five thousand dollar fine.   My mother was eighty years old, told the kids I was coming home, didn't want to get five years, paying a fine, was not his gun, didn't have a clue about the gun, claims his friend was in a stupor.

Mr. Payne stated his objective was to calm him down, “him” I presume meaning a friend, drove around the block, was in the car for five minutes.   At the time Mr. Payne was pulled over he had gone down a road, pulled into a driveway.   He adhered and implicitly listened to all the commands of any officers.   Mr. Payne reviewed the transcript in evidence, Exhibit B, and testified he did not and does not agree with the version of the facts:  two black males, subjects pointing gun.   The report says a subject;  report says Mr. Payne was a passenger.   Mr. Payne, as has been referenced, says he was the operator.   The car Mr. Payne says was owned by the passenger and his wife.   He learned that it was a.380 and not a .38, which the Court presumes is a .38 caliber weapon.   Although not relevant here, the circumference of the bullet head on a .380 ACP weapon and a .38 is the same, if not identical, but the two firearms are dissimilar for reasons not relevant here.

He believed he said the clip and gun were on the floorboard.   Again, Mr. Payne testified he believed he was getting time served only.   He got five years as a sentence suspended after six months served with a conditional discharge.

He testified he wouldn't have pled guilty until he was told he would get time served.

On cross-examination it was brought out that Mr. Payne was arrested February 23, 2005.   He said he was only charged with possession of a weapon in a motor vehicle.   He pleaded guilty to one count of possession to a weapon in a motor vehicle before the Honorable Judge Joan Alexander.   His attorney was present.   The State's Attorney was present.   The judge, Mr. Payne agreed, explained the conditions at sentencing.   He couldn't pick up arrests or possess any weapons.   On cross-examination Mr. Payne agreed that he never told the judge the agreement was for something different.   It was stated that he, Mr. Payne, disagreed with the facts at the time.   The judge said something to the effect, You don't agreewith the facts, isn't that correct?

Mr. Payne did acknowledge he accepted the agreement because he could get more time after trial.   Of note, Mr. Payne said he was not forced to plead guilty and he never told the judge someone forced him to plead, that he previously had been given a conditional discharge, and that in 2003 he received a sentence of a conditional discharge on two counts of larceny to which he presumably pleaded guilty, and Mr. Payne has a criminal record going back to 1978.

The Court asked Mr. Payne some brief questions and Mr. Payne is forty-eight years old.   He attended some type of trade school training in lieu of public high school.   Mr. Payne did attend public school in the City of New Haven, where he grew up, including the Bassett Middle School.   To his credit, Mr. Payne obtained his high school equivalency, GED, while incarcerated in approximately 1985.   Mr. Payne also to his credit took some courses in college at the Asnuntuck Community College, including course work in social psychology small business, and drama.

Therein in essence is the entirety of the testimony on the record.   The Court concludes that there is an absence of a requirement under Hill v. Lockhart on the prejudice issue and because as a matter of law the record is bereft of an essential element, which the petitioner must establish.   The motion for a directed verdict is granted.   With that, this matter is concluded.

I am requesting that notice of appeal rights be given to the petitioner in accordance with the law.   The record shall reflect the clerk is preparing those notice of rights at this time.   I am requesting that the marshal serve those notice of appeal rights to counsel for the petitioner and Mr. Payne.   The record shall reflect that is being done at this time.   I do want to indicate by way of articulation, the motion is being granted because this Court concludes that no reasonable jurist, upon review of the evidence even in the light most favorable to the petitioner would conclude that the petitioner has made a prima facie case, the deliberation of which might lead to a different outcome or a decision debatable among jurists.   With that, this matter is concluded.

John J. Nazzaro, Judge.

Nazzaro, John J., J.