Ruben T. v. Warden, State Prision (2011)

MEMORANDUM OF DECISION

Our Appellate Court and Supreme Court have declined to publish information which identifies the victims in the criminal case which underlies this habeas corpus action in order to protect their privacy interests, and this memorandum follows this protocol.   See State v. Ruben T., 104 Conn.App. 780 (2007), fnl, cert. denied, State v. Ruben T., 258 Conn. 917 (2008).

The petitioner, Ruben T., seeks habeas corpus relief in the form of the vacating of his murder conviction, rendered after trial before a three judge panel, which resulted in a total, effective sentence of forty-eight years of incarceration.   The basis for this claim is that the petitioner's trial counsel, Attorney William Gerace, provided ineffective assistance by insisting that the petitioner reject a plea offer of twenty-five years to serve on a guilty plea to murder and by improperly preparing for and presenting the testimony of Dr. Kenneth Selig at the petitioner's criminal trial.   On March 22, 2011, the court heard the habeas trial and makes the following findings of fact and rulings of law.

On March 28, 2003, the petitioner and his former girlfriend had a heated argument regarding visitation and support issues with respect to their young son.   Previous to that date, the petitioner had sustained a traumatic brain injury from a blow to the head when the petitioner was victim of an unrelated assault.   The petitioner terminated the verbal altercation with the victim by turning away and attempting to walk back to his residence.   The victim then struck the petitioner in the head area from behind with an unknown object.   The petitioner reacted by stabbing the victim twelve times with a folding knife, having a three inch blade, which knife he routinely carried in his pocket since he was assaulted.   The victim died from these stab wounds a short time later.   The petitioner was arrested that same night and charged with murder and risk of injury to his minor son who witnessed the killing of his mother by his father.   The next day, the petitioner's mother hired Attorney Gerace to represent her son.

On February 26, 2004, the prosecutor offered to recommend a twenty-five year prison term if the petitioner pleaded guilty to the murder charge.   This proposed recommended sentence was the minimum term of incarceration allowed for a murder conviction, General Statutes § 53a–35a(2).   The maximum sentence for that charge was sixty years, General Statutes § 53a–35b.   Also, the maximum sentence on the risk of injury count was ten years, General Statutes § 53a–35a(7).   So, the maximum total possible incarceration faced by the petitioner if convicted of both crimes was seventy years.

On that day, the petitioner, who initially wished to accept the offer, was persuaded by Attorney Gerace to decline it and proceed with a trial.   On March 14, 2005, the petitioner elected a trial before a three judge panel.   On April 18, 2005, the panel found the petitioner guilty of both murder and risk of injury.   On July 11, 2005, he received a sentence of forty-eight years to serve on the murder count and ten years to serve, concurrently, on the risk of injury charge, for a total, effective sentence of forty-eight years incarceration.   The convictions were upheld on direct appeal.  State v. Ruben T., supra.

The petitioner first alleges in his amended petition that Attorney Gerace erroneously advised him that his case was really one of manslaughter rather than murder and that it was in the petitioner's best interest to reject the plea offer and have a trial because it was very unlikely that he would be convicted of the more serious crime of murder.   The maximum penalty for manslaughter first degree was twenty years, General Statutes § 53a–35a(6).   Attorney Gerace also advised that it was probable that any sentence on the risk of injury count would be assessed concurrently rather than consecutively.

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims.  Johnson v. Commissioner, 218 Conn. 403, 425 (1991);  Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992).   The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different.  Id.

As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness, Johnson v. Commissioner, supra.   This standard of reasonableness is measured by prevailing, professional norms.  Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation.  Id.

In the present case, the petitioner at first wished to accept the twenty-five year sentence for murder.   Attorney Gerace advised the petitioner that, in his professional opinion, it was unlikely that the petitioner would be convicted of murder at trial.   Attorney Gerace convinced the petitioner to refuse the offer and to take his chances at a trial at which, in Gerace's opinion, a manslaughter conviction was highly probable rather than one for murder.

Gauging Gerace's advice from his perspective at the time, the court observes that Gerace was aware that the petitioner and the victim had a tempestuous relationship and that they continually squabbled over visitation and child support regarding their son.   He knew that the petitioner had sustained a traumatic brain injury and was acutely sensitive about avoiding another head trauma.   He also knew that the victim was the initial aggressor in the altercation which culminated in her death.   Gerace was cognizant that the victim had been violently and repeatedly stabbed with a folding knife with a short blade.   There was no evidence of premeditation or lying-in-wait.   The nature of the attack strongly suggested a loss of control.

In addition, Attorney Gerace had had the case reviewed by a forensic psychiatrist, Dr. Selig.   Dr. Selig's investigation and conclusions supported a defense of extreme emotional disturbance.

Dr. Selig provided Attorney Gerace with a thirty-three page report outlining his findings and which was the product of several interviews, including three meetings with the petitioner which lasted several hours.   Dr. Selig opined that “Ruben overkilled [the victim] in a fit of rage that was boiling inside of him for an extended period of time, but he had been able to keep under control until he was hit by some object in his head and this triggered an intense rage to an extent that he had never experienced before which resulted in his overkilling [the victim], stabbing her repetitively in a short period of time. 12 times in what appears to be clear loss of control.   Upon regaining control, he tried his best to tend to [his son] and turned himself in.   All of this is consistent with an extreme emotional disturbance.”

Although the maximum possible, cumulative sentence for manslaughter first degree and risk of injury is thirty years, Attorney Gerace felt that it was highly likely that a conviction for these charges would receive concurrent sentences.   Therefore, he advised the petitioner that the twenty year maximum sentence for manslaughter was obviously better than the twenty-five year recommendation being offered in exchange for a guilty plea to murder.   Gerace concluded that at trial the petitioner would very probably meet its burden of proving to the panel the affirmative defense to murder of extreme emotional disturbance.

At the habeas trial, the petitioner offered no expert testimony concerning Attorney Gerace's professional opinions and advice to the petitioner.   An incorrect prediction as to the likely future outcome of a trial is not, standing alone, evidence sufficient to establish that that prediction was the result of ineffective assistance.   As mentioned above, the habeas court cannot review counsel's representation with the benefit of hindsight.  Johnson v. Commissioner, supra, 426.   Effective assistance guarantees no particular result, and reasonably competent advice may repose along a wide spectrum of opinion as what course ought to be followed.   No one view of the case is necessarily the only reasonable view.   Reasonable advice may differ from counsel to counsel on the issue of whether a plea offer ought to be accepted or declined.

Guarding against the distortion of hindsight, the court determines that the plaintiff has failed to prove, by a preponderance of the evidence, that Attorney Gerace's guidance to the petitioner regarding accepting or rejecting the prosecutor's plea offer fell below any professional standard.   While the outcome proved to be the wrong choice for the petitioner, the advice was not substandard given all the circumstances surrounding the advice when it was given, and the ultimate decision to decline the offer and proceed to trial was made by the petitioner.

The evidence of extreme emotional disturbance was ample and, if credited by the trier-of-fact, substantial and supported by objective, expert opinion.   General Statutes § 53a–54a creates as an affirmative defense to murder a homicide which would otherwise constitute murder but performed “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse ․” The reasonableness of the explanation or excuse is assessed from the viewpoint of the actor “under the circumstances as [he] believed them to be ․”

Attorney Gerace's evaluation of the petitioner's case seems utterly reasonable in light of the statutory defense and the details of the killing about which he was fully apprised.   See e.g. State v. Asherman, 193 Conn. 695, 732–33 (1984).   His advice to reject the plea offer, while posing some risk if the defense failed, appears to fall within the realm of reasonable competence and effective assistance.

The second ground of ineffective assistance pertains to Attorney Gerace's conduct during the trial itself.   Specifically, the petitioner asserts that his trial counsel failed to prepare himself and/or Dr. Selig for Dr. Selig's testimony and that Dr. Selig should not have been called as a defense witness.   The court rejects these claims of ineffective assistance, also.   Again, no expert testimony was presented as to these assertions at the habeas trial.

Given the importance of the evidence Dr. Selig provided through his testimony and his report in establishing an objective and expert analysis of the petitioner's emotional state at the time of his attack on the victim, it is absurd to argue that he should not have been called as a witness at the petitioner's criminal trial.   Indeed, the failure to utilize such highly probative testimony which was made available through Dr. Selig would have been itself ineffective assistance.   If the affirmative defense were to succeed, it was essential that Dr. Selig's testimony be put before the panel.   Just because the panel remained unconvinced that the defense was proven does not mean that the testimony ought to have been avoided.

The petitioner takes no issue with Attorney Gerace's strategy to pursue an extreme emotional disturbance defense.   In the petitioner's direct appeal, our Appellate Court observed that a “homicide influenced by an extreme emotional disturbance is not one which is necessarily committed in the ‘hot blood’ stage, but rather one that was brought about by a significant mental trauma that caused the defendant to brood for a long period.”  State v. Ruben T., supra, 785.

At page 786, the Appellate Court reviewed the petitioner's burden in attempting to prove this defense:

(1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code;  (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness;  and (3) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions.

Dr. Selig's testimony at the criminal trial was very much to the petitioner's benefit and important in grounding that defense on psychiatric analysis.   Dr. Selig recounted the contentious relationship between the petitioner and the victim and the good relationship he was trying to maintain with his son.   Dr. Selig surmised that the stabbing was the consequence of an upwelling of anger, frustration, distress, and agitation toward the victim stemming from the very bitter arguments between them over visitation, support, and the care of their son.   Dr. Selig noted that the victim's blow to the petitioner's head area provoked the petitioner to assault her violently;  that, at that moment, he lacked control over his actions;  and that his attack was the product of intense rage rather than any mental disease or defect.

The petitioner also contends that Attorney Gerace failed to provide Dr. Selig with five letters authored by the victim.   Dr. Selig testified on cross-examination that he would have liked to have seen these letters earlier, but that nothing in the letters undermined his conclusions in any material way.

Also, Dr. Selig had not reviewed, before taking the witness stand, a report and diagram of the scene of the killing prepared by Detective McGregor.   Again, nothing in these documents modified his conclusions concerning the petitioner's extreme mental state.

Dr. Selig did testify that the petitioner's previous traumatic brain injury did not directly provoke the rage and intense agitation manifest by the petitioner in the violent attack on the victim.   However, the totality of the evidence adduced by the defense supported the defense position at the criminal trial that the victim knew of the petitioner's vulnerability to a blow to his head because of his previous traumatic brain injury and the petitioner's hypervigilance and emotional fear concerning a new head injury.   This evidence would allow the trier-of-fact to determine that the victim's assault on the petitioner ignited a volatile overreaction.   In other words, the petitioner could then argue that he became enraged at the victim's willingness or eagerness to risk doing him grievous harm when his back was turned.   The mere fact that Dr. Selig could not state that the previous traumatic brain injury caused, as a symptom of that earlier injury, the agitation which exploded into the violence done to the victim, did not render that evidence surrounding the petitioner feelings of vulnerability concerning the traumatic brain injury irrelevant.

As a criminal defendant, the petitioner was entitled to reasonably competent representation and not perfection.   It strikes the court that the petitioner's allegations of lack of preparation for Dr. Selig's testimony are insignificant criticisms which had no bearing on the impact of Dr. Selig's testimony.

For these reasons, the court concludes that the petitioner has failed to prove, by a preponderance of the evidence, that he was denied the effective assistance of counsel during his criminal case.   The petition is, therefore, denied.

Sferrazza

Sferrazza, Samuel J., J.