Albert Stephens v. Warden, State Prison (2011)

HABEAS DECISION

DECISION

THE COURT:  All right.   We're back on the record regarding Mr. Stephens versus Warden.   And I did not indicate earlier, but I want to thank counsel for an orderly presentation of the evidence and am prepared to rule.

The court appreciates the arguments of counsel and reviewed its detailed notes regarding all the evidence presented and will make the following findings.

The petitioner, at present, is in the custody of the Commissioner of Corrections.   The petitioner was arrested in 1995 and charged with the offense of murder, in violation of Connecticut General Statute Section 53a–54a, and criminal use of a firearm, in violation of Connecticut General Statute Section 53a–216.

The petitioner was represented by Attorney Jeffrey Hutcoe, who was a public defender who did have occasion to represent the petitioner in a trial before a jury.   The petitioner had entered a plea of not guilty and elected a jury trial.

Following a number of days of evidence before the Honorable Judge Arthur L. Spada, the petitioner was convicted of the offense of murder.   The court sentenced Mr. Stephens to a term of imprisonment of sixty years to serve.

Thereafter, the petitioner appealed his conviction unsuccessfully in a reported decision of State v. Albert Stephens at 249 Connecticut 288, a 1999 decision of the Connecticut Supreme Court.

The petitioner did institute a previous petition for writ of habeas corpus.   The petitioner in that prior habeas petition was represented by Attorney Morton Katz. That matter proceeded to a trial before the Honorable Judge Trial Referee Rittenband in a reported—published decision, I should say, and that was Stephens v. Warden, which essentially set forth a claim of ineffective assistance of trial counsel, and in a decision in that matter, CV00–0597296S, released December 7, 2001, the court, Rittenband, J., denied the petition.

With respect to this matter, as Judge Rittenband noted, and to the source, the Supreme Court noted in its per curiam decision, at the trial the jury reasonably could have found the following facts.

At approximately 11:15 p.m. on April 30, 1993, the petitioner became involved in a heated argument with the victim, Bernie Countryman, outside of the City's Edge nightclub in Hartford.   Both the victim and the petitioner were armed with handguns.   At some point during the argument the petitioner killed the victim by shooting him in the back of the head.   The petitioner then fled the scene in a white Honda and subsequently traveled to Philadelphia where he lived using an assumed name for two years.

At trial Mr. Hutcoe discussed all aspects of his defense with his client, Mr. Stephens.   On the first date of trial in this prior habeas matter, Mr. Hutcoe testified credibly that at the time he undertook to represent Mr. Stephens he was an experienced attorney in matters of criminal defense.   Mr. Hutcoe, prior to his being an attorney, had attended the Pace University in New York, majoring in English.   He thereafter obtained his law degree from the University of Connecticut School of Law. He had been a public defender since 1993 in Danbury and had handled thousands of cases as a public defender.

This court accredits Attorney Hutcoe's testimony on January 21 of this year that he reviewed the facts of the case and the evidence against his client, he spoke with his client many times.   His client maintained that he did not shoot Mr. Countryman;  that Mr. Stephens admitted to being face to face with Mr. Countryman during some type of altercation.

Mr. Hutcoe testified that he could not seriously dispute that Mr. Stephens was present at the scene.   Notably, there were witnesses at trial who described Mr. Stephens as also being known as Fat Paul and Mr. Countryman, the deceased, known as Pookie.

Mr. Hutcoe's chosen defense strategy was that Mr. Stephens did not shoot Mr. Countryman.

It's clear at trial, as was stated, a number of witnesses testified, including Police Officer Steven O'Donnell, who indicated he responded to the call at this apparent homicide in the city of Hartford near the City Edge Cafe in the area depicted in the photographs admitted into evidence today as Respondent's H and I, although the area now has undergone significant changes reflected in one of the photographs.

When officers responded they observed the victim apparently on a fence or in the area of a fence with serious wounds, including a head wound.   Officer James Crystal also testified from the Hartford Police Department that also recovered at the scene was a handgun and a round, an unspent round.

Testifying at trial was Dr. Katsnelson, who testified about the trauma to the victim.   The victim apparently expired as a result of a serious gunshot wound to the head with an apparent entry to the rear of the skull and an exit wound in the side of the head.   The doctor indicated that there was some type of post-mortem cleaning, or cleaning of the wound at least one of the occasions in which Dr. Katsnelson accessed the body of Mr. Countryman.

It is also clear from the trial that ambulance personnel and police personnel responded to the scene and it's not clear at what point the police actually arrived with respect to whether aid was being rendered to the victim, but this court does make a finding that medical individuals did arrive and attempted to administer aid to the victim.

Also testifying at trial was an Arthur Smith, who was an eye witness, who testified that he was driving in the area of the event and he observed black males, as he described it, fighting.   He called 911.   He heard what he described as three gunshots.   He saw two males, a larger male, whom he identified to be Mr. Stevens, and a smaller male.   He described a larger male with a gun in his hand and he observed the victim eventually slump over a fence with head trauma.

At trial was a Kelly L. Hodge–Bay (phonetic), who had been in the area at the nightclub with a lady friend named Kim Roberts.   She was familiar with both Mr. Countryman, known as Pookie, and Mr. Stephens, whom she described as Fat Paul. She observed Paul with a gun, she observed Pookie with a gun.   She heard Paul's gun go off.   She testified to having seen Paul leave in a car.

Other witnesses at trial included a Matt Crawford, who was at the nightclub, and Kim Roberts testified as seeing two males touching one another, a gun going off, a car fleeing, men fleeing, a third individual also present besides Mr. Countryman and Mr. Stephens.

Vincent Motley (phonetic) testified at trial, who was a cousin of Mr. Countryman, and he testified about a significant conversation he had with Mr. Stephens while Mr. Stephens and Mr. Motley apparently encountered one another in separate vehicles and recounted a conversation in which Mr. Stephens told Mr. Motley that he planned to kill Mr. Countryman, and in the terms described by Mr. Motley, “You tell him I'm going to kill his ass.”

At trial was an Afrika Heinz (phonetic) who testified as to the time period in question, approximately 11, 11:15, April 30, 1993.   She was at the City's Edge Cafe. She saw the two men with guns.   She saw the larger male point a gun toward the temple of the smaller man.   She heard a gunshot.   She saw the smaller man fall.

In addition, there were other witnesses.   A Chris White, who was an employee of the Trinity Church, who testified he saw two men arguing, saw a muzzle flash, saw an individual, whom she described as a big man, and other events of that evening.

A lab technician from the Connecticut State Police, an Edward McPhilips, testified about various forensic aspects involving firearms.

A significant witness was Noda Feliciano (phonetic), who testified that she was in the area of this location at the time of this event and she saw the altercation between the two black males.   She described a big man with a gun and a smaller man.   She heard a shot.   She saw the small guy drop.   She saw the larger man flee in a car.   She made a positive identification of Mr. Stephens at trial.

Lastly, at trial was Mr. John Rovella, who testified as the detective with one of the units at the Hartford PD responding to this homicide investigation.   Mr. Rovella testified today in his current ․ and is currently employed as a chief inspector in the Office of the Chief State's Attorney, as having been a career officer at the Hartford Police Department in various capacities and on the night of this investigation was the detective and, as I referenced, had testified at trial.

With respect to the prior habeas petition, Judge Rittenband heard testimony presented by Mr. Stephen's then attorney, Mr. Katz. Judge Rittenband authored an opinion which is in evidence, various claims were made, the substance of which the court needn't detail, other than to state they were claims of ineffective assistance of counsel.   No claim was made specifically, such as the one being advanced here.

There are other aspects and items into evidence which the court may or may not reference in the course of this bench ruling.   Suffice to say, after a full trial on the merits, Judge Rittenband did not find any ineffective assistance of counsel on the part of the trial attorney, Mr. Hutcoe.

Here the petitioner advances his claims essentially in an amended petition dated April 7, 2009, and the petitioner claims that his trial counsel was deficient in a number of ways, principally that he failed to present evidence at trial concerning the absence of gunshot residue of the deceased, he failed to present evidence of the absence of gunshot residue on a hat worn by the deceased at the time he was shot.   That is the language of 9(b).

9(c), the petitioner avers that trial counsel failed to present expert testimony concerning crime scene analysis.

In addition, paragraph 10 alleges ineffective assistance of Mr. Stephens' prior habeas counsel.   Mr. Stephens alleges that his prior habeas counsel failed to present evidence at trial of absence of gunshot residue on the deceased, absence of gunshot residue on the hat worn by the deceased at the time he was shot, and (c), expert testimony concerning crime scene analysis.

Suffice to say, all counsel are familiar with the well-established law regarding ineffective assistance of habeas counsel and also trial counsel.   Essentially, it is incumbent of the petitioner to prove deficient performance and prejudice.   There is a strong presumption of adequacy on the part of Mr. Stephens' attorneys.   Should the court find an absence of deficient performance or prejudice, the petition would fail.   Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.   Citations here are omitted.

It is well established that a habeas court cannot in hindsight second guess an attorney's trial strategy.   That's from Toccaline v. Commissioner of Correction.   There is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is the result of the exercise of reasonable professional judgment.

When applied to a claim of ineffective assistance of prior habeas counsel, the standard under Strickland v. Washington requires that the petitioner demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas counsel.   The petitioner has to prove that one or both of the prior habeas ․ in this case one of his habeas counsel, it's only one, in presenting his claims, Mr. Katz was ineffective and that ineffective representation—and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of his conviction and a new trial.   That's from Lozada v. Warden, a Connecticut Supreme Court case of 1992, 223 Connecticut 834.

A petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice.   He must prove, one, that his appointed habeas counsel was ineffective and that his trial counsel was ineffective.

Counsel are directed to see the Appellate Court decision of Lapointe v. Commissioner of Correction, 113 Conn.App. 378, a 2009 decision.

Here, looking at the evidence as it bears upon the claims that are pled, on January 10 ․ excuse me, January 21, the court heard testimony from Mr. Hutcoe, which the court has already reviewed.

With respect to Mr. Katz, Mr. Morton Katz did testify on January 21.   He testified that he had been an attorney since 1951.   At the time of trial he was 90.   He had done substantial work in the area of criminal defense and some habeas work, and when he agreed to represent Mr. Stephens he obtained the file, he reviewed the file and transcript, he certainly formulated a strategy.   He did not consult with a crime scene analyst expert.   He advanced those claims which he thought had merit.

Mr. Katz, interestingly, had quite a career as a military individual and was quite experienced in all aspects of weaponry and rifles except for shotguns.

Mr. Katz related that Mr. Stephens' claim was that he did not shoot the victim.   He did confer with his client about the petition and the claims therein.   He presented evidence which he thought would benefit the claims that were advanced.

This court makes a finding that Mr. Katz did not choose to advance any claim involving gunshot residue.

The court also heard testimony on January 21 from a Mr. Charles Haase, who can be described as a ballistics and crime scene investigator having been employed by the New York Police Department for twenty years as a policeman and as a ballistics investigator.   He apparently had been involved in thousands of crime scene investigations, two-thirds to three-quarters of which involve firearms.   He has testified numerous times in various courts in New York, Boston and elsewhere.   He lectures apparently at Yeshiva University in ballistics and has given presentations at John Jay College in New York and other locations.

Here, he reviewed the transcripts of the testimony of Dr. Katsnelson and the other witnesses that were referenced.   He reviewed certain evidence admitted at trial, including a sketch map.   He visited the scene of the event, although admitting that the scene had changed certainly from the time of this event.   He offered certain testimony about investigation techniques.

The court has already made a ruling and in its memorandum of decision has commented on the limitation or the parameters of Mr. Haase's testimony.

With regard to the evidence presented today, the court heard testimony, as already indicated, by Mr. Rovella, the former detective from the Hartford Police Department.

What is clear with regard to the evidence as it bears upon this case is that the underlying trial attorney, Mr. Hutcoe, along with his client made a tactical decision to advance a claim of innocence.

The petitioner complains that his trial attorney ought to have used a gunshot residue ballistics witness to testify on the absence of gunshot residue on the deceased and also an article of clothing allegedly worn by the decedent, to wit, a white hat.

This court cannot conclude and make a finding that the decedent, Mr. Countryman, was in fact wearing the white hat at the time he sustained the fatal gunshot wound to the head.   The court recognizes in the transcript of the trial evidence there was at least one reference to a witness saying the individual had the hat on.   The court also accredits testimony by various witnesses, including Mr. Rovella, that the absence of any blood on the hat or anything that would be considered unusual would seem to suggest the decedent was not wearing this particular hat item at the time of the gunshot wound.   The court acknowledges that the hat apparently is not a full cap, so called, which covers the entirety of the skull, but apparently has an opening which exposes a degree of the skull.

In any event, the claim as made is that the counsel, the trial lawyer was deficient and also the habeas attorney was deficient for not employing a gunshot residue expert.

This court cannot find a deficiency where the chosen trial strategy of Mr. Hutcoe and his client was that his client did not fire a gun.   The petitioner argues that trial counsel ought to have advanced an alternative strategy involving some type of ballistics analysis.

This court cannot conclude, based upon the overwhelming evidence of guilt that exists in the record, that had the trial attorney advanced some type of ballistics witness who could comment on the absence of gunshot residue on the hat or the deceased, that that would have in some way changed the outcome here to the point where this court can conclude prejudice.   The court finds no deficiency and will not second guess the trial attorney's chosen strategy where that strategy was not unsound or unreasonable.

Mr. Hutcoe was an experienced criminal attorney.   He apparently communicated with his client fully.   He vigorously cross-examined all of the state's witnesses presented and there's no credible evidence in the record here in this case upon which this court can conclude that it constituted a deficiency for trial counsel not to have employed a ballistics expert or present evidence involving an absence of gunshot residue either to the deceased, to the hat or anything else.

The court does note that in evidence at trial was a stipulation carefully crafted between trial counsel and the state's attorney wherein the finder of fact was apprised that Mr. Stephens had absented himself from Connecticut for a number of years, two years, and had lived in Philadelphia under an assumed name of Williams and thereby trial counsel minimized the potential further damaging effect of flight.   Flight is consciousness of guilt and flight from the scene, as related by the fact witnesses, flight from the state, as evidenced by the stipulation, all clearly were potentially damaging and inculpatory pieces of evidence.

The court can find no deficiency or no prejudice based upon the evidence in the record, all of which is consistent for Mr. Stephens to being the larger man holding a gun at a time when individuals heard at least one or more shots ring out and saw the smaller man, known now as the deceased, Pookie, fall and eventually expire from a fatal head wound.

The court can neither find evidence of deficiency on the part of the prior habeas attorney, Mr. Katz, in not claiming that trial counsel, Mr. Hutcoe, should have employed an expert on the issue of gunshot residue or the absence of GSR on the deceased or the hat.   Mr. Katz was an experienced attorney.   He advanced the claims which he believed had merit and presented evidence on those claims, the details of which, this court need not repeat, but are clearly outlined in the cogent opinion and findings of fact, as well as the statements of law set forth by Judge Rittenband in the decision that is in evidence as Petitioner's B—strike that, as Respondent's B.

It is averred that both trial counsel and habeas counsel ought to have presented expert testimony concerning crime scene analysis.   The court is guided by, among others, the decision of Holley v. Commissioner of Corrections where a petitioner has alleged essentially the failure to investigate there must be evidence that there would have been benefit to the additional investigation.

Holley can be found at 62 Conn.App. 170, a 2001 decision, and more to the point is the case which was cited by respondent's counsel, State v. Talton, where here it's alleged that both habeas and trial counsel failed to call a particular witness, the failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.   And that's from State v. Talton, 197 Conn. 280, a 1985 Supreme Court decision.

There is no evidence of deficient performance on the part of Mr. Katz. There's no evidence of prejudice.   Because of an absence of deficient performance and prejudice by both trial counsel and by prior habeas counsel, the petition for writ of habeas is denied.

Judgment may enter in favor of the respondent.   I am requesting that a transcript of this on bench ruling be prepared for my signature.

In addition, I am requesting that notice of appeal rights be handed to the petitioner.   The record shall reflect that notice of appeal rights has indeed been handed to Mr. McIntyre, Mr. Stephens' attorney.

I am requesting that the transcript of this proceeding be made a memorandum of decision and I will sign same.   I am also permitting a tolling of the appeal period until the petitioner receives a transcript of this on bench ruling, assuming the petitioner makes a timely request for same.   So the record is clear, the petitioner need not file a separate motion to toll the appeal period.

This offer is self affecting, and with that, this matter is concluded.   Court stands adjourned until 10 a.m. tomorrow morning.

I should indicate ․ back on the record, that should an appeal follow, the petitioner prepare a judgment file within thirty days.

Nazzaro, J.

Nazzaro, John J., J.