Stanford Francis v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Stanford Francis, seeks habeas corpus relief in the form of vacating his convictions, following a jury trial, of illegal possession of more than one gram of freebase cocaine with intent to sell by a nondrug-dependent person, in violation of General Statutes § 21a–278(a);  illegal possession of narcotics with intent to sell within 1500 feet of a school, in violation of General Statutes § 21a–278a(b);  two counts of illegal possession of narcotics with intent to sell, in violation of General Statutes § 21a–277(a);  and operating a drug factory, in violation of General Statutes § 21a–277(c).  For these crimes, the petitioner received a total, effective sentence of twenty-five years incarceration.   The Appellate Court affirmed these convictions on direct appeal.  State v. Franklin, 90 Conn.App. 676 (2005), cert. denied, 275 Conn. 925 (2005).

In his amended petition, the petitioner alleges that his trial counsel, Attorney Louis Avitabile, rendered ineffective assistance by failing to interview and/or call as a witness at his criminal trial, a coaccused, Sheldon Pomply.   A claim of actual innocence was previously withdrawn.

Specifically, the petitioner avers that Pomply would have exonerated him by claiming that it was he, rather than the petitioner, who removed a packet of crack cocaine from his coat pocket and hid it in the gas fill-spout compartment where it was later found by the police;  that the petitioner had nothing to do with this contraband;  and that the $1,750 found on the petitioner was partial repayment of a loan by Pomply.

The discovery of this cache of cocaine led to the petitioner's arrest, the seizure of the $1,750, and a search warrant of apartment 26–5 Preston Terrace, Waterbury.   That search uncovered more cocaine and material ancillary to the preparation of crack cocaine, which evidence was the bases for more charges against the petitioner.

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 there exists a reasonable probability that, but for counsel's deficient representation, 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.

As to the first prong of the Strickland test, the court determines that the petitioner has failed to meet his burden of demonstrating that Attorney Avitabile provided ineffective assistance by not interviewing or calling Sheldon Pomply as a defense witness at the petitioner's criminal trial.   Louis Avitabile did not testify at the habeas trial, nor did the petitioner produce expert testimony regarding Avitabile's representation.

Page 131 of the January 8, 2003 transcript of the petitioner's criminal trial discloses that Avitabile contemplated the possibility of calling Pomply as a defense witness.   However, there was no evidence produced regarding Pomply's whereabouts and availability to testify at the evidentiary portion of the criminal trial which occurred from January 8, 2003 to January 15, 2003.

Pomply pleaded guilty in the Waterbury Judicial District on April 11, 2002, to two narcotics offenses.   He received a total, effective sentence of five years imprisonment.   However, he was also facing felony charges in New York state at that time.   He was extradited to New York in August 2002.   Pomply remained incarcerated in New York until those charges were resolved sometime around April 2003.   Clearly, Pomply was imprisoned in New York state throughout the petitioner's entire criminal trial in Connecticut.

No evidence was addressed at the habeas trial that Avitabile knew or should have known of Pomply's incarceration outside of Connecticut.   Also, no evidence was presented as to whether a procedural mechanism existed which would have facilitated Pomply's transfer from imprisonment in New York to testify for the defense during January 2003.

Also, when Pomply faced charges in Connecticut in 2003, he was represented by a public defender, Attorney Alan McWhirter.   McWhirter was never called as a witness at the habeas trial.   There was no evidence proffered that Attorney McWhirter would have allowed Avitabile to speak with Pomply or call him as a witness.   To the contrary, at the joint probable cause hearing regarding the petitioner and Pomply, held on January 2, 2002, Avitabile attempted to introduce a statement Pomply made at his arraignment, and McWhirter objected.   The objection was sustained.

As to the prejudice prong, it must be further noted that Pomply was arrested, prosecuted, and convicted of narcotics offenses which were distinct from those against the petitioner, even though both sets of crimes occurred on November 8, 2001.   The petitioner was charged with respect to freebase cocaine found in his Jeep Cherokee and cocaine processing and packaging items seized as a result of the search of the 26–5 Preston Terrace apartment.   Pomply, on the other hand, was only charged with respect to cocaine which he discarded on the street during his encounter with the police near Templeton and Pine Streets in Waterbury.   In addition, Pomply faced charges from another narcotics arrest in September 2001 at a mall in Waterbury.

Any acknowledgment by Pomply that the cocaine discovered in the fill-spout area of the petitioner's Jeep was his would have subjected Pomply to significant, additional drug charges.   The risk of prosecution and conviction for these charges persisted until the five-year statute of limitations, General Statutes § 54–193(b), expired in November 2007.   There was no credible evidence proffered to warrant an inference that Attorney McWhirter would have advised Pomply to confess to these other charges nor that Pomply would have consented to forfeit his right to remain silent regarding them and incriminate himself at the petitioner's criminal trial in January 2003.

At the habeas trial, Pomply did testify that no one ever asked to speak with him about ownership of the cocaine found stashed in the gas cap area, but he never testified that he would have been willing to implicate himself at the petitioner's criminal trial in 2003.   His habeas testimony occurred some three and one-half years after the statute of limitations lapsed.

In addition, Pomply's version of events recounted in his habeas testimony was highly suspect.   As noted above, the statute of limitations has run leaving Pomply with little to lose by assuming sole responsibility for the cocaine found in the petitioner's Jeep. His testimony requires further factual elucidation.

In September 2001, Pomply was arrested by the Waterbury police as a result of the detention of a group of shoplifters by Filene's security.   When the petitioner also arrived at the scene he was also arrested as the suspected wheelman for the gang.   During his arrest, the police charged Pomply with possession of cocaine and marijuana which was seized when he tried to discard the material.

Pomply testified that this was untrue and that the police openly discussed framing both himself and the petitioner.   Pomply stated that the petitioner's encounter with Pomply at the Filene's store was mere happenstance, and that the petitioner was only a casual acquaintance of his.   Both Pomply and the petitioner posted bond.

On November 8, 2001, the Waterbury Tactical Narcotics Team utilized two team members to surveil the 26 Preston Terrace apartment building.   The team had received numerous tips that the petitioner, known as “Stone,” and Pomply, known as “Clue,” were dealing drugs and that the petitioner was operating out of an apartment at 26 Preston Terrace.

The surveillance team watched the petitioner and Pomply exit from that address and enter a blue Jeep Cherokee.   The team followed the Jeep, which was driven by the petitioner, to an area near the intersection of Templeton and Pine Streets.   The Jeep made a k-turn and parked.   Officer Jackson exited the unmarked, police surveillance vehicle and monitored the activities of the petitioner and Pomply from a nearby vantage point, while Officer Setzer drove the car out of view of the targets of the investigation.

Jackson observed the petitioner, who is around six feet, two inches tall and has an athletic physique, exit the driver's side of the Jeep, remove a white packet from his jacket pocket, and conceal the packet in the gas cap compartment.   Soon afterward, another vehicle arrived and parked across the street from the Jeep. Dashona Lamar was its driver, and she left her vehicle to converse with the petitioner.   Pomply, who is less than five feet, six inches tall, remained alone in the front passenger seat.   Pomply has a pronounced limp as the result of a childhood injury.

Jackson decided to confront the petitioner and Lamar who had strolled around a corner, and Jackson radioed Setzer and other team members of his decision.   Jackson and Setzer arrested the petitioner and discovered $1,750 on his person.   Lamar was allowed to leave the area.

Jackson walked back toward the Jeep and encountered Pomply who was attempting to flee.   During this attempt, Jackson saw Pomply toss a plastic bag with cocaine in it on the street.   When apprehended Pomply also had a large sum of cash on him.

When other officers arrived at the scene, Jackson alerted them to the packet in the gas cap area.   One of the officers retrieved the packet.   As a result of the evidence seized at this location, the team secured a search warrant for the 26 Preston Terrace building.   A search of apartment 26–5 Preston Terrace yielded more cocaine and drug sale paraphernalia.   In addition, a car insurance bill in the petitioner's name with the 26–5 Preston Terrace, Waterbury address was also found in the apartment.

At the habeas trial, Pomply testified that at both the September 2001 incident at the mall and the November 2001 arrest at Templeton and Pine Streets, the police concocted the report of him discarding any items.   He also testified that at both locations, he overheard the police discuss how to frame the petitioner.   He further noted that he and the petitioner met at the mall in September 2001 by chance and that he arranged to meet with the petitioner on November 8, 2001, to repay a debt he owed to the petitioner.   He denied ever being at the 26–5 Prescott Terrace location.

He further stated that it was he who removed the white packet of cocaine and hid it in the fill spout area of the petitioner's Jeep without the knowledge of the petitioner.   Also, he averred that the petitioner wore a sweatshirt rather than a jacket that night.

It should be noted that Pomply also testified that the $1,750 found on the petitioner was the payment Pomply gave to the petitioner that night to reimburse the petitioner for having posted Pomply's bond related to the September 2001 arrest at the mall.

The court finds that the petitioner has failed to prove that his guilty verdict was the result of the lack of Pomply's testimony at his criminal trial.   In order to create a reasonable doubt as to the petitioner's guilt, the jury would have to ascribe credibility to Pomply's story.

Pomply, a convicted felon at the time of the petitioner's trial in 2003, directly contradicted the sworn testimony of multiple police officers as to his whereabouts on November 8, 2001;  espoused a purported coincidental nature of his contact with the petitioner on both September 2001 and November 2001 despite the fact that the petitioner posted Pomply's bond for the September 2001 incident;  assumes the supposed confusion by the police as to who hid the drugs in the petitioner's Jeep, despite the stark disparity in physical appearance between the two men;  and ignores the fact that cocaine processing and packaging evidence was found in an apartment which the petitioner listed as his address.   The assertion of police fabrication belies the credibility of Pomply's convenient and risk free claim of ownership of the cocaine found in the petitioner's Jeep as noted above.

For these reasons, the court denies habeas corpus relief.

Sferrazza

Sferrazza, Samuel J., J.