Luis Fernandez v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Luis Fernandez, alleges in Count One of his Revised Amended Petition for a writ of habeas corpus, filed on September 29, 2010, that he was denied the effective assistance of counsel at the trial of his two criminal cases and his violation of probation case in the Judicial District of Danbury in violation of both the United States and Connecticut Constitutions.   All matters were tried together in August 2001.   The criminal matters were tried to a jury and the violation of probation charge was simultaneously tried to the court.   In the criminal cases, the petitioner was charged and convicted of five counts of sale of narcotics by a person who is not drug dependent and five counts of possession of narcotics.   Based on the evidence of the petitioner's possession and sale of drugs, the court found him in violation of his probation.   At sentencing, the court revoked the petitioner's probation and sentenced him to serve in prison eight years, the unexecuted portion of his suspended sentence.   On each possession charge, the court sentenced the petitioner to seven years in prison, concurrent to each other.   On each sale of narcotics charge, the court sentenced the petitioner to twenty years in prison, including the five-year mandatory minimum period of imprisonment called for by statute.   Those sentences were to run concurrently to each other and the possession sentences, but consecutive to the violation of probation sentence.   Thus, the petitioner's total effective sentence was twenty-eight years in prison.   His convictions were affirmed by the Appellate Court.  State v. Fernandez, 75 Conn.App. 183, 818 A.2d 877, cert. denied, 264 Conn. 901, 823 A.2d 1220 (2003).   The petitioner was represented at trial by attorney Vicki Hutchinson, who had been appointed as a special public defender for the petitioner's cases.

The petitioner's claims of ineffective assistance of trial counsel focus on one issue—whether the petitioner was drug dependent at the time of the narcotics sales.   The petitioner claims that Attorney Hutchinson was not competent in how she addressed the petitioner's drug dependency, and as a result, his convictions on the five counts for sales of narcotics are unconstitutional.   In particular, the petitioner claims that the expert witness retained by Attorney Hutchinson was not competent to address the drug dependency issue, and was not given by Attorney Hutchinson all of the available records that would have supported an opinion of drug dependency.   He also claims that Attorney Hutchinson failed to effectively argue the issue during closing argument.   Finally, the petitioner claims that Attorney Hutchinson failed to properly advise him regarding the weakness of his drug dependency defense, and had he been so advised, he would have accepted the state's pre-trial plea offer.

This case was tried before the court on December 9, 2010.   The court heard the testimony of Attorney Hutchinson, the petitioner and Dr. Andrew Meisler, an expert witness retained by the petitioner regarding his drug dependency at the time of the narcotics sales.   The court also received as exhibits correspondence between the petitioner and Attorney Hutchinson, transcripts of all court hearings in the petitioner's underlying cases, and the petitioner's medical records from Danbury Hospital and the Department of Corrections.   At the close of the evidence, the petitioner's counsel requested an opportunity to file a post-hearing brief to address certain legal authorities referenced by the respondent's counsel in closing.   The court granted the petitioner two weeks to do so.   The petitioner filed his post-trial brief on December 22, 2010.

FINDINGS OF FACT

Based on the evidence presented at trial, the court makes the following findings of fact.   Attorney Hutchinson was appointed on May 16, 2001 to represent the petitioner on his three criminal cases, docket numbers CR 00–110597, CR 00–110598, CR 00–108162, pending in the Danbury Judicial District.¹  In one case, the petitioner was charged with four counts of possession of narcotics and four counts of sale of narcotics based on sales he made to an undercover police officer.   In another case he was charged with one count of possession and one count of sale based on a sale the police witnessed the petitioner make to a third party.   The third case charged a violation of probation based upon the criminal conduct alleged in the other two matters.   The three cases were consolidated for trial and scheduled to go to trial in August.   At the time she was appointed to represent the petitioner, Attorney Hutchinson had almost twenty years experience as a criminal defense attorney, most of which she had spent in Danbury.

On June 14, 2001, Attorney Hutchinson met with the state's attorney and the court to discuss a possible resolution of the petitioner's cases.   The court extended an offer of twenty years, suspended after ten years in jail followed by five years of probation.   The offer was left open until the petitioner's next court date of July 11, 2001.   Attorney Hutchinson communicated the offer and her view of the case to the petitioner in a letter dated June 15, 2001.   Attorney Hutchinson informed the petitioner that “[t]he state has some extremely strong cases against you.”   Pet. Ex. 1. She reminded the petitioner that four of the sales at issue were to an undercover officer, went over the petitioner's substantial exposure, and told him that if he were convicted on the sales his probation would be terminated and he would be sentenced to serve the remainder of his suspended sentence, “consecutive to the new sales charges.”  Id. Based on her analysis of the case, Attorney Hutchinson described the court's proposed disposition as “an extremely good offer,” and she told the petitioner that he “should seriously consider accepting the offer.”  Id. Attorney Hutchinson also credibly testified that in meetings with the petitioner she advised him to accept the offer.   Despite Attorney Hutchinson's advice, the petitioner rejected the offer and elected to be tried by a jury on the possession and sales charges.

The evidence reflects that the focus of the petitioner's defense was that the police had arrested the wrong man.   Despite being identified by the undercover officer who purchased the narcotics in the controlled buy, and being watched as he sold narcotics to an individual and was immediately arrested thereafter, the petitioner steadfastly maintained that he was not present during any of the drug sales.   Instead, he claimed he was at work, and so testified during his trial.   When confronted with the anticipated testimony of the people to whom he was accused of selling drugs, the petitioner told Attorney Hutchinson that the jury would not believe an undercover officer or a “junkie.”

The petitioner also focused a considerable amount of his attention on perceived technical flaws which he believed would result in the dismissal of his cases.   In particular, he thought there were flaws in the paperwork related to his arrest, and spent time with Attorney Hutchinson going over those issues.   Consistent with Attorney Hutchinson's testimony in this regard, the transcripts show that the petitioner was so focused on the perceived technical flaws in the cases against him that he filed a judicial review complaint against the trial judge, claiming, among other things, that the judge had forged the name of another judge on the violation of probation warrant.

Consequently, most of Attorney Hutchinson's preparation time during the three months she represented the petitioner leading up to trial was spent either trying to bolster a defense of mistaken identity or on unproductive discussions of perceived technical issues raised by the petitioner.   Attorney Hutchinson investigated, to no avail, the petitioner's claimed alibi.   She also prepared to try to show that the police when conducting surveillance of the drug transactions were too far away to be able to identify the petitioner, and only identified him based on their past dealings with him.

The court credits Attorney Hutchinson's testimony that the issue of the petitioner's drug dependency did not come up in her discussions with the petitioner until immediately before the trial began, when she was reviewing with the petitioner the elements of the sales charges, which included that the petitioner was not drug dependent.²  At that point, the petitioner informed Attorney Hutchinson that he was drug dependent when the narcotics sales occurred.   He wanted to raise that defense while at the same time arguing that he did not engage in the sales.

Attorney Hutchinson then contacted the public defender's office to obtain a list of doctors who might be willing to evaluate the petitioner for drug dependency and testify as an expert witness at trial.   She began contacting the doctors on the list, and the only doctor who was available and willing to work on the petitioner's case was Dr. Robert Harkins.   At the time, Dr. Harkins had been practicing medicine for almost 40 years.   Attorney Hutchinson knew that Dr. Harkins was not a drug and alcohol specialist, although he was on the public defender's list of potential experts on drug dependency.   Given that Dr. Harkins was the only expert available on short notice, Attorney Hutchinson believed he was the best alternative to evaluate and address the petitioner's drug dependency.

Dr. Harkins met with the petitioner once, while the petitioner was in court.   Their meeting was through a plexiglass window so that Dr. Harkins was not able to conduct a physical examination of the petitioner.   Nevertheless, Dr. Harkins, based on the patient history he took from the petitioner and the petitioner's medical records from Danbury Hospital and the Department of Corrections, formed the opinion that the petitioner was drug dependent at the time of the narcotics sales.

At the petitioner's trial, Dr. Harkins testified to his opinion.   He also testified that he met with the petitioner for about an hour, within the range of the typical time he would spend with a patient to render a diagnosis.   He also testified that he spent an hour reviewing the medical records.   He testified that over the course of his career he had done three hundred drug evaluations or diagnoses.   Between 1983 and 1997 he testified about a dozen times as an expert on the issue of drug dependency.   While the state's attorney on cross-examination briefly inquired into Dr. Harkins' area of specialty and the amount of time he spent on the matter, his primary focus was not the doctor's qualifications or thoroughness.   Instead, the state focused on the fact that Dr. Harkins' opinion was, in large part, based upon the self-reporting of the petitioner.   The implication was clear:  if the petitioner is not to be believed, then any opinion based on information he provided is suspect.

The state offered no rebuttal expert to Dr. Harkins.   Instead, it relied principally on the unreliability of the petitioner's self-reporting to Dr. Harkins.   In addition, on rebuttal, the state offered the testimony of Erin Nolan.   Ms. Nolan was a probation officer and a licensed alcohol and drug counselor who interviewed the petitioner in August 2000, approximately two months before the drug sales in question.   She testified that the petitioner denied any narcotics use or addictions.

The petitioner also testified about his drug use.   Thus, the jury had an opportunity to evaluate his credibility on this particular topic.   In addition, he testified that he was not the individual who sold the drugs in the transactions at issue.

In the end, the jury concluded that the state had proved beyond a reasonable doubt that the petitioner was in fact the seller in the narcotics sales at issue.   It also concluded that the petitioner had failed to prove by a preponderance of the evidence that he was drug dependent at the time of the sales.   The jury's verdicts reflect their conclusion that they did not view the petitioner as credible.   Additional facts will be discussed as necessary.

LEGAL STANDARD

“The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness ․ To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal ․ In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction.”  (Citations omitted;  internal quotation marks omitted.)  Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994).   Here, the petitioner claims that the ineffective assistance of his trial counsel has led to such a result.  “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient ․ Second, the defendant must show that the deficient performance prejudiced the defense ․ Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.   Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness ․ in Strickland, the United States Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a petitioner to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ․ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment ․” Henderson v. Commissioner of Correction, 80 Conn.App. 499, 504–05, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).

When the claim is that trial counsel failed to conduct an adequate investigation, the analysis is no different.  “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable;  and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.   In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.   In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.”  Strickland, supra, 466 U.S., 690–91.

The Appellate Court has recognized that “under certain circumstances, the failure to use any expert can result in a determination that a criminal defendant was denied the effective assistance of counsel.”  (Emphasis in original.)  Peruccio v. Commissioner of Corrections, 107 Conn.App. 66, 76, 943 A.2d 1148, cert. denied, 287 Conn. 920, 951 A.2d 569 (2008).   While the court did not specifically address whether the selection of the wrong expert witness could constitute ineffective assistance of counsel,³ it is not hard to imagine a situation where counsel's selection of an expert is so unsuitable as to, in effect, be the same as selecting no expert at all.   Thus, under certain circumstances, selection of the wrong expert witness can constitute ineffective assistance of counsel.

As to the prejudice prong, “an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment ․ The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.   Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”  Strickland v. Washington, supra, 691–92.   Consequently, the petitioner must affirmatively show that his counsel's performance had an adverse impact on the defense.  Id., 693.   Put another way, in order to meet the prejudice prong the petitioner must prove that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id., 694.

DISCUSSION

The petitioner's first claim is that Attorney Hutchinson's performance was deficient because she did not select a qualified expert witness.   In support of this claim, the petitioner points out that Dr. Harkins himself admitted during cross-examination that he was not a drug and alcohol specialist.   Furthermore, the petitioner offered the testimony of Dr. Meisler as to the inadequacies of Dr. Harkins' work on the petitioner's case.   Dr. Meisler is a licensed clinical psychologist with a Ph.D. in clinical psychology from Syracuse University.   From 1993 to the present he has worked as a psychologist in the VA Connecticut Healthcare System.   From 1993–1998 he served as that organization's Director of Substance Use PTSD Program.   He has written and lectured on a number of topics, including the relationship between PTSD, trauma, and substance abuse.   He met with the petitioner on three separate occasions, and spent hours taking a full history from him.   Based on that history and his review of the petitioner's medical records, Dr. Meisler, like Dr. Harkins, reached the opinion that the petitioner was drug dependent when the narcotics sales occurred in 2000.

While he agrees with Dr. Harkins' conclusion, Dr. Meisler testified that Dr. Harkins' methodology was flawed.   He testified that Dr. Harkins' meeting with the petitioner was too brief, and that he did not explore fully enough the petitioner's history of drug use.   According to the petitioner, had Attorney Hutchinson hired a drug and alcohol specialist, like Dr. Meisler, his testimony would have reflected a more thorough and thoughtful analysis, and, therefore, would have been more credible to the jury.   The petitioner also argues that credentials like those possessed by Dr. Meisler would have given greater weight to the expert's opinion of drug dependency.

The court is not persuaded.   It bears repeating that counsel's decision must be viewed based on the situation confronting counsel at the time, and not in hindsight.   Attorney Hutchinson learned that the defendant might have a drug dependency defense as trial was about to begin.   She immediately asked the public defender for a list of potential expert witnesses on the subject and proceeded to contact all of the doctors on the list.   Dr. Harkins was the only one willing to undertake the case.   In his almost forty years as a doctor, Dr. Harkins had evaluated hundreds of individuals for drug or alcohol dependency.   He had been qualified as an expert on the topic approximately twelve times prior to the petitioner's case.   The petitioner has not proved that Attorney Hutchinson's decision to use Dr. Harkins as an expert was unreasonable given the circumstances that existed at the time she retained him.

Even were the court to assume arguendo that the decision to use Dr. Harkins constituted deficient performance, the petitioner has failed to prove any prejudice from that decision.   As noted above, Dr. Harkins' opinion was the same as Dr. Meisler's.   The only differences between the two men were how much time each spent with the petitioner before reaching their opinions and their credentials.   Neither difference has any material significance in the particular facts of this case.   Dr. Harkins was not attacked on his credentials.   And there was only a passing reference on cross-examination to the amount of time Dr. Harkins spent on the matter before reaching his opinion.   The state offered no expert to testify in rebuttal to Dr. Harkins.   Instead, the state focused its attention on the fact that all of the information upon which Dr. Harkins relied, whether from the petitioner himself or the medical records Dr. Harkins reviewed, was a product of the petitioner's self-reporting.   The same is true of Dr. Meisler.   He may have spent more time interviewing the petitioner, and may have gotten a more detailed history from him, but in the end, Dr. Meisler, like Dr. Harkin, primarily relied on what the petitioner told him about his drug usage.   Thus, Dr. Meisler's opinion would be just as prone to attacks on the petitioner's credibility as was Dr. Harkins.'   Given that the petitioner severely undermined his own credibility by testifying that he was not involved in the narcotics sales, despite overwhelming evidence to the contrary, the court does not believe that there is a reasonable probability that the jury would have accepted Dr. Meisler's opinion any more than it was willing to accept Dr. Harkins' opinion.   This conclusion is buttressed by the fact that just two months before the narcotics sales the petitioner told probation officer Nolan that he was neither using nor addicted to any narcotics.   The court therefore reaches the same holding as the Appellate Court did in Peruccio, “[a]lthough [Meisler] possibly may have been a ‘better’ expert witness than [Harkins], we conclude that the petitioner has not established a reasonable probability that had [Meisler] testified, the result would have been different.”  Peruccio v. Commissioner, supra, 107 Conn.App., 77.

Second, the petitioner argues that Attorney Hutchinson's performance was deficient because she failed to adequately investigate the petitioner's drug dependency.   In particular, he argues that Attorney Hutchinson failed to provide Dr. Harkins with the petitioner's medical records from Danbury Hospital and the Department of Correction.   He claims that these records corroborated his drug dependency.   The evidence does not support this claim.   To the contrary, Attorney Hutchinson testified that she provided these records to Dr. Harkins.   More importantly, Dr. Harkins testified at the petitioner's criminal trial that he had spent an hour reviewing those records before reaching his opinion.   In any event, as noted above, a review of those records shows that any history of drug use was again based on the petitioner's self-reporting.

Third, the petitioner claims that Attorney Hutchinson did not adequately argue the issue of drug dependency in her closing argument.   He points out that her only reference to drug dependency was her comment that the petitioner “was a drug user.   He is not a drug dealer.”   This claim ignores the fact that the petitioner's primary defense was that the police had arrested the wrong man.   This was a defense the petitioner insisted upon, and one to which he had staked his credibility by testifying.   Thus, the focus of Attorney Hutchinson's closing was on the weaknesses in the police's identification of the petitioner as the seller in the transactions at issue.   The evidence does not support the conclusion that Attorney Hutchinson's strategic choice of what to focus on in her closing argument was unreasonable.   Therefore, the petitioner has not proved that Attorney Hutchinson's closing argument constituted deficient performance.

Finally, the petitioner claims that Attorney Hutchinson failed to properly advise him about the strength of the state's case and the weaknesses in the petitioner's drug dependency defense.   He claims that had he been properly advised, he would have accepted the court's pre-trial offer of twenty years suspended after ten years in prison.   This claim is without merit.   Attorney Hutchinson strongly advised the petitioner, in writing, to accept the court's offer.   His claim that Attorney Hutchinson told him that he had a good chance of prevailing on his drug dependency defense is just not credible.   The petitioner has failed to prove any deficient performance by Attorney Hutchinson regarding her advice to the petitioner during plea negotiations.

CONCLUSION

For all the foregoing reasons, the petition is DENIED.

BRIGHT, JUDGE

FOOTNOTES

FN1. Attorney Hutchinson was also appointed on two other files that did not go to trial with the above matters.   One case involved possession charges related to the petitioner's alleged possession of narcotics in a storage facility and at his home.   In the second case, the petitioner was charged with driving under the influence of drugs or alcohol..  FN1. Attorney Hutchinson was also appointed on two other files that did not go to trial with the above matters.   One case involved possession charges related to the petitioner's alleged possession of narcotics in a storage facility and at his home.   In the second case, the petitioner was charged with driving under the influence of drugs or alcohol.

FN2. The court does not find credible the petitioner's testimony that he wrote letters to Attorney Hutchinson regarding his drug dependency, and raised it every time he was in court.   There was no evidence showing such letters existed, and there is nothing in the transcripts to reflect that the defendant raised the issue every time he went to court.   It appears the issue only came up once, before Attorney Hutchinson entered the case, when prior counsel filed a CADAC application.   The court denied the application without any evaluation because it determined that the petitioner could not prove that granting his application would be in the public interest, even if he could prove he was drug dependent.   Thus, no drug dependency evaluation was made.   Attorney Hutchinson testified that she was aware of the CADAC application, and aware that it had been denied.   The petitioner's claim that he repeatedly raised the drug dependency issue with Attorney Hutchinson, in letters and in court, is also inconsistent with his testimony that he only met Attorney Hutchinson once..  FN2. The court does not find credible the petitioner's testimony that he wrote letters to Attorney Hutchinson regarding his drug dependency, and raised it every time he was in court.   There was no evidence showing such letters existed, and there is nothing in the transcripts to reflect that the defendant raised the issue every time he went to court.   It appears the issue only came up once, before Attorney Hutchinson entered the case, when prior counsel filed a CADAC application.   The court denied the application without any evaluation because it determined that the petitioner could not prove that granting his application would be in the public interest, even if he could prove he was drug dependent.   Thus, no drug dependency evaluation was made.   Attorney Hutchinson testified that she was aware of the CADAC application, and aware that it had been denied.   The petitioner's claim that he repeatedly raised the drug dependency issue with Attorney Hutchinson, in letters and in court, is also inconsistent with his testimony that he only met Attorney Hutchinson once.

FN3. It held that “[e]ven if we were to assume arguendo that [trial counsel's] selection of an expert witness constituted deficient performance, no prejudice resulted from that deficiency.”  Id., 77..  FN3. It held that “[e]ven if we were to assume arguendo that [trial counsel's] selection of an expert witness constituted deficient performance, no prejudice resulted from that deficiency.”  Id., 77.

Bright, William H., J.