Larry McCown v. Warden, State Prison (2011)

DECISION

THE COURT:  Good afternoon.   All right.   We're back on the record regarding the matter of Mr. Larry McCown versus Warden.   I want to thank counsel for an orderly presentation of the case and assure Mr. McCown that I don't view the briefness or brevity of this proceeding in any way to reflect the seriousness that you approach this with or certainly the seriousness that your attorney or the attorney for the Warden approaches this with.

In reviewing the exhibits in this matter, it is quite clear that there was a substantial and involved prior proceeding involving the previous habeas corpus petition, which you filed, your representation for which is the subject matter of this claim.

With regard to this matter, the Court has reviewed the exhibits and certainly has listened to the testimony of the two witnesses today, including testimony from your former attorney, Justine Miller, and testimony from yourself.

In evidence I might note are a number of exhibits, firstly, exhibits from the previous habeas corpus trial, Petitioner's 1 through 6, which were admitted in full, but with a degree of limitation respecting certain of these exhibits, but the transcripts certainly speak for themselves, with regard to what transpired at the prior habeas corpus proceeding in the matter of McCown v. Warden, the subject of an eventual decision in the docket number, CV–03–0004172–S in a memorandum of decision published by Judge Thelma Santos on March 1, 2007.

In addition to those petitioner's exhibits, the Court did review the entirety of the respondent's exhibits, and they include transcripts from various proceedings involving other individuals alleged to have been involved in an incident giving rise to a death in New Haven, which I will reference, individuals involving or including State v. Issac Council, for instance, which was another individual accused of, among other offenses, murder in connection with the untimely death for which—or involvement for which you were convicted, in addition State v. Rogers, Thomas Rogers.   And these are transcripts—this is a closing argument in that case.   These exhibits were Petitioner's 5 and 6 respectively.   And again, there was some limitation with regard to these exhibits.

But in any event, the Court also looked at a statement, which you testified to today you gave and was in evidence as a full exhibit, and that was a statement by yourself, Mr. Larry McCown, many years ago.   And that's in essence a twenty-four-page statement, the substance of which was admitted into evidence in the underlying trial of State v. McCown, in addition a tape recording of the interview, which gave rise to this transcribed police statement, if you will, was also played before the jury.

The Court also reviewed various decisional law, including the Appellate Court decision in State v. Rogers, the Appellate Court decision in State v. Council, and other decisional law, which I will reference.

Based upon the evidence that was presented, the Court does make the following findings:

That Mr. McCown is currently in the custody of the Commissioner of Corrections.   The petitioner was a defendant in a criminal prosecution in the judicial district of New Haven bearing the docket number CR9760446247 charged with the offenses of accessory to the crime of murder in violation of Connecticut General Statute Section 53a–8 and 53a–54a, and that was accessory to conspiracy—pardon me—accessory to murder as was stated, also charged with conspiracy to commit murder in violation of Connecticut General Statute Section 53a–48 and 53a–54a, attempt to commit murder in violation of Connecticut General Statutes Section 53a–49 and 53a–54a, and lastly possession of a weapon in a motor vehicle in violation of Section 29–38 of the General Statutes.

At all relevant times at trial this Court finds that Mr. McCown was represented by Attorney William Palmieri, and the trial was heard before the Honorable Judge Fracasse.   As a result of a trial by jury, the petitioner was convicted of the offenses of murder as an accessory, conspiracy to commit murder, attempt to commit murder, and possession of a weapon in a motor vehicle.

Thereafter the Court, Judge Fracasse, sentenced the petitioner to a total effective sentence of sixty-five years to serve.   The petitioner appealed his convictions unsuccessfully to the Appellate Court in a decision reported at State v. McCown, 68 Conn.App. 815, 2002.   The petitioner thereafter—I should say proceeded in filing a writ of habeas corpus, the institution of which actually proceeded the outcome of the appeal and that is the matter of Larry McCown v. Warden, the docket number previously referenced.

In that matter, this Court finds that Mr. McCown was represented by Attorney Miller of New Haven after a lengthy trial on the merits of that case, encompassing trial dates of December 20th, 2005, February 14, '06, April 3rd, '06 and July 20, '06.   In a detailed memorandum of decision, Judge Santos denied the petition.   That decision was subsequently appealed to the Appellate Court and in a per curiam decision by a three-judge panel, the Court affirmed the decision of Judge Santos as reported in the matter of McCown v. Commissioner of Correction, 113 Conn.App. 117, 2009.

Here the underlying facts in the matter of State v. McCown were summarized and are helpful in part, and the Court incorporates them by reference at this time.   The Appellate Court set forth the facts at page 817 as follows:

The jury could have reasonably found the following facts:

On the afternoon of November 20, 1994 the petitioner—and I'll refer to the petitioner/defendant interchangeably—along with Issac Council and Council's girlfriend were driving on County Street in New Haven in a silver station wagon, upon seeing a gathering of people in front of 69 County Street, Council, who was driving the vehicle slowed and stated, There go those guys.

Council then drove to the residence of Thomas Rogers' girlfriend on Ashman Street.   Upon arriving at the residence, the petitioner, Council, and Council's girlfriend exited the car and entered the apartment.   Petitioner, Council, and Rogers went into the living room and talked for a period of five to ten minutes before leaving in the station wagon.

Council once again drove along County Street with Rogers sitting in the front seat and the defendant sitting in the rear passenger seat.   All three individuals were wearing masks.   The station wagon approached 69 County Street.   A series of shots were fired from the passenger side of the vehicle.   After the initial round of firing, the petitioner exited the vehicle, looked around the area, and then returned to the vehicle.   Council then moved the car forward several feet.   A second series of shots were fired from the passenger side of the vehicle.   As a result of the shootings, one individual was killed and another was shot in the arm.

A state forensic ballistic laboratory report revealed that two .45 caliber guns had been used in the shooting.

Fifteen to twenty minutes after initially leaving the apartment of Rogers' girlfriend, the petitioner, Council, and Rogers returned, with Council and Rogers both in possession of a gun.   They went into the living room where they spoke loudly and laughed about seeing people running and someone getting hit.   Council then directed his girlfriend to go with Rogers' girlfriend to get the vehicle cleaned at a car wash.   While in the process of vacuuming the car, Rogers' girlfriend discovered a shell casing on the passenger side of the car.   After Rogers' girlfriend showed the casing to Council's girlfriend, the two disposed of it.

The petitioner went to the New Haven Police Department on December 1, 1994 to talk to detectives about the shooting that occurred on November 20, 1994.   The petitioner admitted to being present in the car during the shootings but claimed that he did not fire a weapon and had not known what Council and Rogers intended to do when they returned to County Street.   The petitioner subsequently was arrested on March 8, 1997.

With regard to the appeal to the Appellate Court, the petitioner was represented by Attorney Neil Cohen.   With regard to this claim, the petitioner has advanced through an amended petition, claims of ineffective assistance of his prior habeas counsel in an amended petition dated October 13, 2009.   The petitioner advances three counts.

With regard to the first claim, petitioner alleges that Attorney Miller was deficient for, as is termed in paragraph eleven, failing to “properly raise a claim that trial counsel was ineffective for failing to request a defense theory instruction.”

Petitioner's paragraph twelve alleges at the trial of the petitioner's codefendants, the State argued that the codefendants had been the shooters and in the petitioner's criminal trial switched the argument.   Once the State abandoned the previous theory of the case, the petitioner avers defense counsel, Mr. Palmieri, should have requested such an instruction and highlighted this point to the jury.

The petitioner claims habeas counsel was ineffective in failing to adequately pursue such a claim against Mr. Palmieri.

The Court will address the substance of accounts two and three in the course of its analysis.

Firstly, with regard to this claim, both counsel, being experienced counsel in the area of habeas corpus, are well aware of the standards and the legal principals required in order to prevail for any petitioner seeking the extraordinary writ of habeas corpus.   Essentially, the petitioner is required to prove both ineffective assistance of his underlying trial attorney, Mr. Palmieri, and also ineffective assistance of his prior habeas counsel.

And thusly, Seminal, a United States Supreme Court decision of Strickland v. Washington applies in essence to both layers:  a petitioner claiming ineffective assistance of counsel must prove deficient performance and prejudice under Strickland.   To prove deficient performance, the petitioner must show that counsel's representation fell below an objective standard of reasonableness.   Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

To prove prejudice, the petitioner must establish that there's a reasonable probability, that but for counsel's unprofessional errors, the result of the proceedings would have been different.

When applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard again requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudices the petitioner's prior habeas proceeding;  thus, a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice.   You must prove that his appointed habeas counsel was ineffective and that his trial counsel was ineffective and certainly request counsel's attention to the cases with which they're certainly familiar:  Lozada v. Warden, 223 Conn 834, 1982 and LaPointe v. Commissioner of Correction, 113 Conn.App. 378, 2009.

In this matter, in review of not only the first claim but the second two claims, the Court heard testimony from Attorney Miller.   With regard to Attorney Miller, the Court accredits so much of Attorney Miller's testimony, that at the time she represented Mr. McCown, she was an attorney with substantial experience in prosecuting habeas corpus petitions.   She had attended and graduated from Vassar College, had obtained a Master's Degree from Southern Connecticut State University and obtained her legal training from the University of Bridgeport, which later morphed into the Quinnipiac University School of Law, where Attorney Miller obtained a law degree in 1990.

Since 2001, the Court accredits Attorney Miller's testimony that she had been practicing primarily or with a concentration to an extent in habeas corpus.   She had approximately fifty-four trials.   It's not clear as of the time she accepted the appointment from Mr. McCown or at present, but needless to say, it's clear this Court concludes that Attorney Miller had substantial trial experience at the time she represented Mr. Miller.

This Courts finds that Attorney Miller undertook a very copious review of all of the trial transcripts in not only State v. McCown but also relevant transcripts stemming from proceedings involving the so-called co-accused, State v. Rogers and State v. Council.

In addition, it's clear that Attorney Miller communicated with her client, Mr. McCown, on a number of occasions and what's more received in red, some thirty-one different pieces of correspondences from Mr. McCown and in the course of so doing formulated a strategy and in litigating the claim before Judge Santos advanced no less than ten separate claims of ineffective assistance of counsel, eight of which—approximately of which involve ineffective assistance of trial counsel, Palmieri, and two other claims that at least involved claimed ineffective assistance of Appellate Counsel, Mr. Cohen.

In so doing, Attorney Miller did what is not often done, and that is, with regard to the underlying claimed deficiencies involving Palmieri failing to examine certain witnesses and the like, Attorney Miller brought in the witnesses for examination, and there were a number of witnesses who testified in the matter before Judge Santos, including an Antonio West and Helen McCown, the petitioner's mother.

In the criminal trial, the State called a number of witnesses—a Cheryl Gilbert, Monique Little, Crystal Gore, Sophia McCloud in addition to revealing transcripts of the underlying proceedings.   In addition to undergoing lengthy examination of Mr. Palmieri, it's clear that Attorney Miller subjected the witness, Ms. Gilbert or Pilgrim—I believe her name changed at some point—to extensive examination recalling the events and circumstances of the evening that not only allegedly involved Mr. McCown but also involved Mr. Council and Mr. Rogers;  and hence, it's clear that Ms. Pilgrim was at the habeas trial testifying in all probability on at least her fourth occasion about the circumstances of this tragic night in the city of New Haven.

In the course of representing Mr. McCown, the Court finds that Attorney Miller researched all legal issues extensively and indeed spoke with the previous Appellate attorney, Mr. Cohen, prior to trial.

The Court finds that Attorney Miller did not actually speak with Mr. Palmieri, but in so doing, also followed up in speaking with other attorneys in the instance, I believe, of Rogers or Council.   I believe she was successful in speaking with Council—the attorney—I should say for clarity purposes—for Mr. Rogers and crafted a number of claims, the substance of which are detailed in the memorandum of decision by Judge Santos and need not be repeated.

In so doing, she formulated a strategy in presenting the evidence and the claims which she felt she could advance before the Court in an attempt to obtain relief for Mr. McCown.

With regard to the first count, that Attorney Miller failed to request a defense theory instruction or failed to advance a claim against trial counsel for failing to request a defense theory instruction, it is helpful to look at the memorandum of decision from Judge Santos, and in the course of reviewing this particular claim, this Court makes a finding that based upon a review of the record, the State advanced the same theory of liability against all three individuals—Mr.   Rogers, Mr. Council, and Mr. McCown.

It's clear each was charged in accordance accessorial liability, and it's clear also that the State's theory involved the involvement of two .45 caliber guns in this event which produced a number of shell casings spread over the street.

In the underlying trial, ballistics experts testified that there appeared to be casings spread, and there appeared to be different types of bullets, notwithstanding that each came from a .45 caliber.   The forensic individual or individuals concluded that two .45s were used.

Notable, before I go to the transcript of the decision, is that Mr. McCown himself made a substantial admission in the statement in evidence today in this proceeding and also in his underlying trial, not the least of which was admitting that he was in the rear of the vehicle which was described as a Ford Sable station wagon and that Mr. McCown was aware of at least having seen one .45 in the possession, I believe, of an individual he described as “Bone,” that Bone was in the passenger seat, presumably Mr. Rogers and that Council was driving the car.

All three appeared to concur that they—I should say that it was not disputed or not seriously disputed that there was anything other than three individuals in the car.

Witnesses at trial testified that they saw gunfire come from the passenger side of the vehicle and this is consistent with a number of the witnesses.   Mr. McCown indicated in his statement in evidence that he had no idea that anyone would be shot, and he was not complicit in any way in the shooting.

The statement of Mr. McCown was before the finder of fact, and thus, was reviewed by a jury and Mr. Palmieri obviously was aware of this.   With regard to the specific issue of the claimed failure of habeas counsel to claim ineffective assistance of trial counsel for failing to request a charge on inconsistent theories, Judge Santos commented as follows in her findings:

At the habeas trial, Palmieri testified that he thoroughly examined the issue of inconsistent theories of liability.   What he discovered, however, was that given the way in which the petitioner and his codefendants were charged, pursuing an argument on the issue would be useless because the theories that the State asserted were not factually contradictory, the use of inherently factually contradictory theories violates the principals of due process.   To violate due process, an inconsistency must exist, the core of the prosecutors' cases against defendants for the same crime, citing the A circuit Court of Appeals decision of Smith v. Groose, 205 F3d. 1045 at page 1052.

Judge Santos went on to conclude at the criminal trial the State presented evidence that Rogers, Council and the petitioner were co-conspirators in the murder and that all three were in the car at the time of the shooting.   There was no debate concerning where each co-defendant was sitting in the car.   Rogers and Council were in the front and the petitioner was the backseat passenger.   All three defendants were charged under accomplice theories.

At Council's trial the State presented alternative theories of liability.   The State argued that under the accessory statute the jury could find Council guilty as a shooter or he (sic) could find him guilty as the driver.   The Court cited the Exhibit F, at pages 58, 57.

Judge Santos went on to state the theory that Council was the driver and was therefore guilty as an accomplice does not contradict the theory that Rogers and the petitioner were the shooters.   Palmieri was, therefore, not ineffective for failing to pursue the issue or move for a mistrial.

For the same reasons advanced here, this Court cannot find any deficiency on the part of Attorney Miller for not addressing a claim that trial counsel, Palmieri, was ineffective for failing to request a defense theory instruction.

This Court finds that Attorney Miller researched all the legal issues and there has been no showing here that had Attorney Miller advanced such a claim successfully or attempted to advance the claim, the Court should say, that the claim would necessarily have changed the outcome here.

This Court finds no inconsistency as to the criminal liability attaching to Mr. McCown under the theory advanced at his trial versus liability attaching to Mr. Rogers or Mr. Council as a result of those gentlemen's convictions.

In addition, the Court accredits Attorney Miller's testimony that she discussed this issue with Attorney Cohen, who frankly felt there was no merit to such a claim and did not seek to advance it.   By the same token, there was no cause to request a jury instruction in light of this point according to Attorney Miller's assessment with regard to Attorney Palmieri's conduct.

So this Court finds any—any claim in this regard to lack merit and the evidence insufficient for the petitioner to prevail.   It is notable—and the reason the Court is taking the time to articulate here on the bench and won't go through each of the claims advanced by Attorney Miller that it's notable that she did advance a number of claims in detail and the length and depth of the proceeding of Mr. McCown's habeas was substantial indeed, and the Court does not find any deficient performance on the part of Attorney Miller in this regard with regard to this particular claim in count one.   There is an absence of deficient performance and prejudice on this issue.

With regard to count two, it is claimed that Attorney Miller failed to adequately pursue a claim that trial counsel was ineffective in failing to correct the State's knowing use of false testimony and that Appellate Counsel was ineffective in failing to raise this issue on direct criminal appeal.

The short version on this claim is that this Court does make a finding that there is insufficient showing that either the State or a reasonable individual can conclude that any witness, and in particular, I believe, it's the witness of Cheryl Pilgrim, her testimony was false.   The Court tacitly recognizes that Ms. Pilgrim testified differently or in a different fashion between various proceedings and certain of the underlying proceedings, testifying that she observed the vehicle in which the petitioner admitted he was a rear seat passenger move—I should say in earlier proceedings she testified she saw a burst of gunfire from the stationary vehicle, and there were two bursts of gunfire.   And in later testimony there was testimony that the vehicle moved between two locations, but in each instance there was testimony that shots rang out from the passenger side of a stationary vehicle.   The Court certainly accredits Attorney Miller's interpretation, which is reasonable, after aggressive examination that in her opinion the witness was not testifying falsely, that the witness had genuine difficulty in recall given the length of time many years passing between the event, the evening of the event, and the various trials.

It's noted that both Mr. Rogers and Mr. Council proceeded to trial and their matters were disposed of in years prior to Mr. McCown, the other individuals trials having commenced in 1996 or '97, Mr. McCown going to verdict, I believe, in 1999, and the habeas proceeding on diverse dates in 2006.   So there's a lot of passage of time.

There has been no showing that the State either concluded or should have concluded that any testimony by any witness was false, and therefore;  they had some duty to correct use of false testimony, that being a fundamental failing or a leg that does not support, a three-legged stool, the stool falls and this claim falls.

And this Court appreciates the reality of the different testimony but does not attach the substantive weight which the petitioner argues a jury would with regard to the movement of the vehicle.

It's clear—and this is why frankly you look to forensic evidence and the probative value of forensic evidence—historical evidence, what witnesses saw, what they relate years later, can by definition alter through no evil purpose or intent to falsify, but forensic evidence, what is scientific and what is found at the scene is likely to be very probative, the dispensation or spread of shells over a space even with understanding how shells project or expel from a semi-automatic weapon, if spread over a period of feet or a space, it certainly can be consistent from a physical standpoint, with a history of bullets being fired from two locations, where a vehicle has moved.   So it's dubious to speculate as to what value even had this discrepancy or difference been brought out, what value that would have had to a jury.

This Court cannot conclude that had a claim been advanced or had trial counsel advanced this, it would have necessarily have changed the outcome.   This Court makes a finding that there was overwhelming evidence of guilt with regard to Mr. McCown under the theory advanced by the State of Connecticut, and although the petitioner testified today, as he apparently did in the prior habeas proceeding and as reflected in the transcript, there's nothing in the testimony by the petitioner which negates the substantial import of Mr. McCown's statement he gave back in 1994, which was played on the tape before the jury and the transcript of which was before the jury.   Any statement taken most recent in time usually for logical purposes is given the most weight, and that's why the rule came down in State v. Whelan without digressing where prior inconsistent testimony may be used for substantive purposes.

So again, given the admissions by Mr. McCown, the physical evidence and the eyewitness observation in those matters, which in this Court's views were important, important enough to justify a conviction, there was no meaningful digression requiring habeas counsel to further pursue any claim of false statement.

By the same token, this Court does not find any ineffective assistance of counsel of Attorney Miller, failing to pursue a claim against either Palmieri or the Appellate Attorney Cohen, there being no indication that advancing such a claim would likely have changed the outcome.   There is neither deficient performance nor prejudice with regard to Count two.

Lastly, it is claimed that Attorney Miller was deficient when she attempted to pursue a claim relating to witness' testimony regarding the use of masks during the commission of the shooting, that Attorney Miller attempted to introduce transcripts of the codefendants into the habeas trial, transcripts of Rogers and Council.   It is clear that the Court, Judge Santos, denied admissibility of the full transcripts, and this Court finds that habeas counsel did not introduce either the full or redacted transcripts as exhibits in the prior habeas proceeding, but this Court also heard the testimony of Attorney Miller with regard to what occurred in the trial before Judge Santos and the transcript bears this out.

Attorney Miller credibly testified that she was able to examine Attorney Palmieri about the substance of the other individuals' testimony, Mr. Rogers and Mr. Council.   This Court concludes that Attorney Miller—without tacitly saying as much today—this Court concludes Attorney Miller adequately brought forth the issue before the Court in habeas on this issue of masks or the importance of the issue, and frankly this Court does not view the issue to be that significant when the eyewitnesses at the scene on the street were not able to identify by face any of the individuals involved.   Again, Mr. McCown himself placed himself at the scene of the event, so whether or not one was wearing a hoodie or one had a mask or whether they didn't have masks, to some extent is dubious, a potential red herring in some circles of speech, but it's clear Attorney Miller whether by design or by default proceeded to question in the area, having been told that the transcripts would not come in, she did as some attorneys do, adapt to the particular situation and proceeded to examine the witnesses in a different fashion, bringing out the substance of what the attorney hoped to accomplish.

This Court finds no deficiency by the absence of introducing redacted versions of the transcripts where the attorney was able to inquire and there was a full opportunity, therefore, for the petitioner to present his claim, and the petitioner was not prevented in any way of a constitutional dimension in advancing the Court to consider any claim in this regard.   And what I'm talking about is trial counsel's strategy.   There's no prejudice when it does not seem in any way dispositive whether the finder of fact considered the issue of who was wearing masks or didn't wear masks that the jury could well have concluded the individuals were wearing masks.   It is notable that in the statement, Exhibit G, Mr. McCown indicates that no one was wearing masks, but again, no particular witness identified Mr. McCown by face so there can be no prejudice in this regard.

The Court understands that certain witnesses, such as Ms. Gore, testified that all three had masks on, and to some extent, I certainly appreciate the argument that trial counsel should point out inconsistencies between testimonies.   And that's the job of the trial attorney, frankly, to steer the jury's attention away from that which they should be focused on, the essence and the gravamen of the eyewitness identification, the clear import of the ballistics' testimony to which the Court referred, and to focus on what in some circles may seem pickiune or miniscule but to one out of twelve jurors—and that's what the defense lawyer is seeking—one juror out of the twelve to basically raise his or her hands up and say, I've got a problem and by adding a little inconsistency they all amount to a big inconsistency;  and therefore, that creates in my mind a reasonable doubt.   And so that is the craft of the trial attorney trying to plant the seed of reasonable doubt;  however, here as the Court indicated there was substantial and overwhelming evidence of guilt on all the charges for which Mr. McCown was found guilty.

This Court does not agree with the allegations in paragraph thirty-two that views this particular claim as a huge discrepancy but rather as one which the defendant would like to have argued was a huge discrepancy.   There's no way to conclude what indeed the jury considered but had the jury considered this issue this Court cannot conclude it would have made any difference in the outcome.

For those reasons, the Court concludes that count three is unproven.

This Court makes a finding that Attorney Miller's performance was neither deficient nor was he prejudiced.   On the contrary, this Court finds that Attorney Miller undertook a very thorough and dedicated view of the record, including transcripts not only from proceedings involving Mr. McCown but proceedings involving the co-accused.   She developed her theories.   She communicated with her client.   She kept her client involved in the process and advanced those claims which she determined were most likely to prevail.

The Court concludes that after review of the four days of evidence and the detailed findings by Judge Santos that the petitioner was indeed accorded a full opportunity to be heard under all concepts of fairness, due process, and our state constitution as well as the United States Constitution.   Although the claim is not specifically advanced, perhaps in the concept of dicta, this Court does find sufficient evidence to support a finding of guilt for reasons already stated.

In all respect, Mr. McCown, the Court is denying your petition for writ of habeas corpus.   Judgment shall enter in favor of the respondent.   If the petitioner should wish to appeal, I'm requesting, Counselor, the petitioner prepare a judgment file within thirty days.

John J. Nazzaro, Judge

Nazzaro, John J., J.