Alessandro Perez v. Warden, State Prison (2011)

HABEAS DECISION

DECISION

THE COURT:  I have considered the testimony, the exhibits, I've reviewed the file and considered the closing arguments of counsel and for the following reasons the petitioner's writ, or the petition for a writ of habeas corpus is denied.

I'll first take up the claim that counsel should have called the petitioner's mother to testify.

Mr. Conway testified in court today that he did talk to the mother throughout the process and inferentially he talked to her about the case and concluded that the mother did not add anything.   I credit this testimony and find it was a valid tactical decision not to call her as a witness.

Indisputably, Mrs. Perez, who testified today, seemed to be a very nice woman.   She was extremely courteous and respectful to the court and to the attorneys, but I think she proved today that she is a poor witness.

Unfortunately, she just did not understand many of the questions that were asked of her.   I found her answers very confusing.   I thought she would be particularly vulnerable on cross-examination by the state had she testified at the criminal trial.

I thought at one point she ․ I may be wrong, but she seemed to admit that the petitioner changed his clothes when he got to the house.   She would have been subject to cross-examination for bias, of course.   I thought also that at one point here she might have made, or there might have been evidence that she had made a prior inconsistent statement regarding whether the driver left quickly from the residence.

I did not believe her testimony that the only time ․ or did not construe her testimony really to mean that the only time she was able to talk to Mr. Conway about the case was one day in court.   I just felt she was terribly confused by the whole questioning and repetitious questioning on that issue.   Instead, I've credited Mr. Conway's testimony that they talked regularly throughout the process.

I do not feel that, as Mr. Conway said, she would have added anything, in particular, about the search.

Mr. Conway elicited from one police officer on page 198 of the transcript that the search was pretty thorough.   As for the other police officer who testified on this, the officer did admit that the search was cut short, but he also testified that four officers searched the residence for an hour, and that is really sufficient evidence to argue that it was a pretty thorough search and, despite the thoroughness of the search, the police did not find a gun or some of the clothing, I believe.

I felt that the mother's testimony could not have added to that and, given her vulnerability and weaknesses as a witness, it might well have diluted the evidence that Mr. Conway got from the other side.

The transcript on page 67 reveals that the victim had already said that the petitioner walked around the car and was not running, so I don't believe the mother's testimony was necessary on that point.

And finally, I believe that the mother's testimony today contradicted the petitioner's statement in two important respects and, therefore, detracted from the petitioner's testimony, or statement, rather, that the defense was relying on.

First, the mother testified that the car did not pull into the driveway, whereas the petitioner told the police that it did, and the mother testified that the petitioner gave the taxi driver money outside the cab.   The petitioner was emphatic in his statement to the police that he was still inside.

I don't believe that these are minor details.   These really go to the heart of whether a crime occurred or not and it would have hurt, it seems to me, the petitioner's case to introduce those contradictions to the defense and take away from the petitioner's innocent explanation that he provided the police at the time.

So, in conclusion, I feel that the mother did not add much to the case and may well have hurt and that it was a reasonable tactical decision for Mr. Conway to decide, as I believe he did, that the mother's testimony would not add anything and that she should not be called as a witness.

The second claim is that the petitioner was not advised adequately that he should elect a court trial on the criminal possession of a firearm charge.

I credit Mr. Conway's testimony that it was his standard operating procedure to discuss the issue of whether to elect a court trial or a jury trial.

The petitioner's testimony that he never talked to his attorney about whether to elect a court or a jury trial is, to me, incredible, given trial counsel's experience on this important issue, and I do not credit the petitioner's testimony in that regard.

The petitioner did say that he would follow counsel's advice and the petitioner did elect a jury trial and, therefore, it's reasonable to infer for that reason alone that Mr. Conway did advise him to elect a jury trial.   I believe there was a reasonable tactical basis for advising him to elect a jury trial and not to elect a court trial on criminal possession of a firearm.

The evidence that the state would have to prove to obtain a conviction on criminal possession of a firearm is unquestionably less than what they would have to show to prove kidnapping, and so there is somewhat of a greater likelihood that the defendant would have been convicted on criminal possession of a firearm if that charge were separated out and I credit counsel's statement that he was aware of the judge's reputation, and that reputation was as a harsh sentencer, and that that option was to be avoided because of the possibility that the petitioner would face significant time from a conviction.

On the other hand, this was not an overwhelming case for the state on the kidnapping charge.   Although there was some circumstantial evidence, essentially it came down to the credibility of the victim's testimony.   The victim did have a prior felony conviction, so there was certainly some significant chance that the jury would disbelieve the victim, who, again, was the state's main witness, and acquit the defendant of kidnapping, and if they had done so, it's hard to see how they would have convicted of criminal possession of a firearm at the same time.

So I find that the advice of counsel to the petitioner to elect a jury trial was reasonable advice and that there was no deficient performance.

In addition, I find no prejudice from the petitioner's election of a jury trial.

It's true, of course, that the felony came into the jury trial because of the criminal possession of a firearm charge, but there's no reason to believe it was misused by the jury.

It's true that the victim had a prior felony conviction, but the court charged on that ․ but when the court charged on that it referred specifically to the victim by name and said that he had a prior felony conviction that could be used for one purpose only, and that was to affect his credibility and testimony as a witness.

The petitioner did not testify as a witness and if the court followed ․ if the jury followed the court's instructions, it could not have misinterpreted that instruction on a prior felony to apply to the petitioner who was not a witness.

Second, there's simply no showing that the petitioner would have been acquitted at a court trial had he elected one on the criminal possession of a firearm charge.

So I find neither deficient performance, nor prejudice and no ineffective assistance of counsel on that issue.

The final claim is that trial counsel should have filed a motion to sever the failure to appear charge.   I find no prejudice in failing to file a motion to sever.

First, I believe there was minimal prejudice from ․ only minimal prejudice from the fact that this was a joint trial of the other charges and failure to appear.   As everyone agrees, the evidence, the underlying evidence that the defendant failed to appear in court would have come in any way as consciousness of guilt.

The only additional factor that the failure to appear charge brings in is the fact that the underlying charge of kidnapping and the other charges were felonies.   That is not information that the jury would have been surprised to hear from the court and I think it's reasonable to assume that the jury knew that the petitioner was facing serious charges even without the court telling them.

But, in any event, the court on page 361 of the transcript charged the jury that you can't consider punishment in deciding the verdict.   Standard language, but one the jury is presumed to follow, and so, given that the jury presumably did follow it, they would not have used the fact that the defendant was charged with other felonies in deciding whether or not he was guilty of those felonies.

Finally, there's no showing that a motion to sever would have been granted.   There is no case law supporting the proposition that a motion to sever a failure to appear charge when included in the same information as the other charges should be granted.

The fact is, there is a preference for joint trials in this state, and that's especially true when all the charges are in one information, as was the case here.   There's a very strong basis in judicial economy for trying these charges together because of the overlap of the evidence and because of the efficiency in convening one jury and having one verdict that the defendant faces, either guilty or not guilty of all these charges.

I do not believe a motion to sever the failure to appear charge would have succeeded or that there was any strong basis for it and, therefore, I find that there was no ineffective assistance of counsel on these claims.

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

Schuman, J.

Schuman, Carl J., J.