Roland Madore v. State Prison (2011)

MEMORANDUM OF DECISION

THE COURT:  Thank you, counsel.   I am prepared to render a decision from the bench.

For the reasons I will detail, the petition for writ of habeas corpus is denied.   The first and primary claim is that trial counsel, Mr. Jewell, was ineffective in arguing the issue of consolidation and severance.   Mr. Jewell did, in fact, object to the motion by the state to consolidate the cases.   It was not in writing, nor was any case law cited, however neither is required to render effective assistance.   Generally, the case law is well known in this area by counsel and the Court, and it is a question of how the case law applies to the unique facts of each case rather than a matter of citing a particular case which is exactly the same as the case before the Court and that would control the Court's decision.   The general standards are well known to the Court and were applied in this case.   It's true that Mr. Jewell's objection to the consolidation was brief.   However, it followed an objection by Mr. Perry that raised, to a certain extent, many of the grounds that petitioner now claims Mr. Jewell should have raised.

Mr. Perry argued that William's case had more counts, and actually argued that William might have a criminal history that might be admissible, which would prejudice his case.   These are—at least thelatter argument is one that the petitioner now claims his trial counsel should have made, and perhaps so, but the point is that this argument was presented to the Court, so the Court was fully alerted to the issue of that sort of spillover, and nonetheless granted the state's motion for consolidation.   So, this issue was raised before the Court.

I know in the pleadings the petitioner alleges that trial counsel failed to raise the issue of antagonist defenses and the appellate court found that as well.   However, this was not a case of antagonist defense as Mr. Katz essentially acknowledged.   This was not a case of one defendant pointing a finger at the other.   It might have been a case of inconsistent defenses, but counsel cannot be faulted for failure to raise antagonist-defenses because there would not be a basis for making that claim in this case.

Although the arguments concerning prejudice in the trial court were brief, they were not only presented to the trial court, but they were also presented to the appellate court.   And the appellate court, in both the Williams's appeal and the appeal of Roland Madore, which is reported at 96 Conn. 271 cert. denied (2006).   In both of these decisions, the appellate court has a fairly extensive discussion of the issue of prejudice and addresses most of the claims raised here.   So, the Court's have considered the issues that the petitioner claims should have been raised perhaps more clearly.

The appellate court said that evidence in these two cases was essentially cross-admissible, and so that even if the trials had been separate, most of the evidence would have come in William Madore's case anyways.   There were several independent witnesses to establish the petitioner's presence at the scene, Lisa W., and petitioner's mother, who the state could have called.

The appellate court noted that there was sufficient evidence to convict even in separate trials.

The appellate court also-cited, with some detail, the trial court's curative instructions, which cautioned the jury to keep these cases separate and not to let evidence admitted only as to one defendant affect the other defendant's case and that was therefore another cure for any unfair spillover of the evidence.

Finally, the jury's acquittals of the petitioner on five of the eight counts of which he was charged, indicate that there was no undue prejudice that affected the jury and that they were able to fairly assess each and every count independently of the fact that there was a codefendant and that there was separate evidence showing that that codefendant may have been guilty and had a prior record.   So, all the arguments concerning prejudice were presented one way or another to the trial court or to the appellate courts, and those courts found that the prejudice in this case was not sufficient to justify severances of trials.   And, in fact, the jury demonstrated it was not overly prejudiced by the consolidation of the cases.

The next claim that I have, I think going in order of the petition, and I am not sure about that, but I'll nonetheless address this;  Failure to call alibi witnesses or investigate impeachment of the state's witnesses or use an investigator.   The standard in this sort of claim is that the petitioner has to show what benefit additional investigation would have revealed, see Holly v. Commissioner of Correction, 62 Conn.App. 170 at 175 (2001);  There was no evidence presented at all in this case of any additional evidence that Mr. Jewell should have produced at trial.   For example, there was no testimony from an additional alibi witness, or no documentary evidence of any that would further support the petitioner's alibi.   There was no evidence at all produced in this trial of any admissible impeachment material of the state's witnesses.   For example, there was no evidencepresented that the state's witnesses had a felony record or had a poor reputation in the community for truth and veracity.   The only possible evidence produced is that Heidi was under the influence at the time of trial.   However, the evidence at trial did show that these girls were doing drugs, and so the jury was aware of that general concern and the jury could see for itself if Heidi were under the influence of drugs or alcohol at the time of trial.   So, there is no harm in failing to raise this issue at trial.   Finally, in relation to this claim, no benefit at all was shown that would result from hiring an investigator in this case.   Some cases require it, others don't.   Mr. Jewell did the investigation on his own and nothing has been shown in this trial as to what an investigator would add to the case.

The next claim that I have in order is the claim of failure to prepare the petitioner for his testimony.   In this claim, I credit Mr. Jewell's testimony.   I do not credit the petitioner's testimony.   I credit Mr. Jewell's testimony that he met with the petitioner to prepare his testimony and probably advised him not to testify.   Mr. Jewell added that it was standard operating procedure for him to bring up what would come out on cross-examination, and I will infer that he did so in this case.   He did, in fact, file a motion in limine to exclude the petitioner's prior felony record and the trial court granted it in part by at least requiring that the state elicit only the fact that the petitioner had been convicted of an unnamed felony.   So, Mr. Jewell was well prepared on that issue.   The fact is that the petitioner repeatedly ignored Mr. Jewell's advice, insisted on testifying.   But in any event, no harm was shown to the trial as a result of the petitioner's testimony.

The fourth claim that I have in order is failure to communicate offers to the client.   Here, again, I credit Mr. Jewell's testimony and do not credit the petitioner's testimony.   I find that all offers were communicated to the petitioner.   Mr. Jewell met with the petitioner each time.   There was no evidence of any further ruling by the state to reduce the charges beyond what they already were willing to do.   So, there is no evidence that negotiations, or additional negotiations, would do any good.

The fact is that the petitioner was adamant that he wanted to go to trial to beat the sexual assault charges as he had done before, and so there is nothing more that counsel could have done.   I credit the evidence that counsel tried mightily to get the petitioner to accept the state's offer;  he went over the state's offer ad nauseaum.   He brought on thepetitioner's mother to help persuade the petitioner.   The petitioner simply refused to take his own attorney's advice, now he wrongfully blames his own decisions on counsel rather than himself.   I find no merit to that claim.

The final claim that I have is that trial counsel was ineffective in failing to object to leading questions by the state, of the victim Felicia (phonetic) on this case.   The case law in this issue indicates that the decision of the trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetence;  see Toccaline v. Commissioner of Correction 80 Conn.App. 792, 801, cert. denied.   I don't have the year.   And as trial counsel stated, his decisions were largely tactical in this case, and it is a legitimate tactic not to object when you know the evidence is going to come in anyways, or when you think the jury might be irritated that counsel was interfering with the presentation of testimony or that it simply would do no good.   Here, in fact—although there was a lot of leading of the principal witness for the state—the critical part of the state's examination was non-leading.   I will cite to the October 26th transcript, October 26th 2004, pages seventy-seven through seventy-eight.   In particular from lines—there areno line numbers in this version of the transcript.   I wasn't going to read it because the testimony is quite graphic, but it begins with the phrase, “At some point during that encounter, do you recall if Mr. William Madore”—and in particular goes through page seventy-eight, the fourth line down, “Did he actually enter”—and I'm not reading the sexual references, but that was critical part of the state's examination of Felicia, and it was non-leading, so there doesn't seem to be a valid claim that the most important part of the testimony should have been objected to, but it wasn't;  it was non-objectionable.

In any event, even if the state could not have elicited the critical information from the victim without leading questions, the State could have introduced the Whalen statement or perhaps had her declared as a hostile witness if she did not answer to non-leading questions.   So, this information would have come in anyways, and there is no valid claim for ineffective assistance of counsel for failing to object to those questions.

I believe I have covered all the claims raised by the petitioner, or at least argued here today, and so therefore the petition for writ of habeas corpus is denied.

I will order the monitor to produce a transcript of the Court's decision for both counsel.

I will order the petitioner's counsel to prepare a judgment file within thirty days of the decision.   And I will ask Mr. Tsimbidaros if you would accept notice for your client for his right to appeal.

ATTY. TSIMBIDAROS:  Absolutely, Your Honor.

THE COURT:  Thank you, sir.

ATTY. TSIMBIDAROS:  And I will note that Mr. Tsimbidaros has now received notice of his client's right to appeal.

So unless there is anything further, I thank counsel for their courtesy and professionalism.

We will stand adjourned

Schuman, J

Schuman, Carl J., J.