Robert Nixon v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Robert Nixon, seeks habeas corpus relief from confinement following a conviction, after a jury trial, of assault first degree, in violation of General Statutes § 53a–59(a)(1).   For this offense, the petitioner received a sentence of fifteen years incarceration followed by five years of special parole.

The two grounds on which the petitioner bases his claim for relief are that Attorneys Beth Merkin and Jennifer Nowak rendered ineffective assistance at his criminal trial by failing to retain and present testimony from a forensic pathologist and that the prosecutor committed a Brady violation by withholding the fact that one of the state's witnesses was to receive favorable treatment in her own criminal case in light of her cooperation at the petitioner's criminal trial.

Ineffective Assistance Claim

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.

If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence.  Pelletier v. Warden, 32 Conn.App. 38, 46 (1993).   In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.  Levine v. Manson, 195 Conn. 636, 640 (1985).   Reasonable probability means a probability sufficient to undermine confidence in the verdict.  Daeira v. Commissioner, 107 Conn.App. 539, 542–43 (2008), cert. denied, 289 Conn. 911 (2008);  that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt.  Id.

Because the analysis of the prejudice prong is dispositive, the court addresses that issue directly.   At the habeas trial, the petitioner presented the testimony of Dr. Mark Taff, an experienced forensic pathologist and Chief Medical Examiner for Rockland County, New York. Dr. Taff related the processes by which a forensic pathologist can analyze the physical circumstances surrounding stabbing or incised wounds and potentially form an opinion as to whether the wounds were likely to be defensive in nature.

The petitioner argues that his criminal defense counsel failed to consult with and offer the testimony of such an expert at his criminal trial in order to substantiate his self-defense theory.   The petitioner elected not to testify at his criminal trial, and his trial counsel relied predominately on DNA evidence which demonstrated that the blood on the knife allegedly used to assault the victim contained residue of the petitioner's blood but not that of the victim.

However, the petitioner ignores the fact that Dr. Taff specifically stated that, after reviewing the pertinent evidence in the petitioner's case, he could not render an opinion, to a reasonable degree of medical certainty, that the cut on the petitioner's thumb and the abrasions on his forearm and stomach were defensive wounds.   Neither could he exclude that possibility.   In other words, the evidence in the petitioner's case is such that Dr. Taff could not render an expert opinion one way or the other as to the circumstances which produced the injuries to the petitioner.

Dr. Taff's testimony would have been inadmissible at the petitioner's criminal trial because it provided no useful information for the trier-of-fact beyond knowledge already within the ken of the ordinary juror.   Expert medical opinion “must be based on reasonable probabilities rather than mere speculation or conjecture if they are to be admissible ․ “ DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294 Conn. 132, 142 (2009).   Admissibility of expert opinion is founded on what is reasonably probable rather than on what is merely possible.  Madore v. New Departure Mfg. Co., 104 Conn. 709, 714 (1926).

The rules of evidence regarding admissibility of expert testimony apply with equal vigor to criminal as well as civil cases.  State v. James, 211 Conn. 555, 575 (1989);  State v. Kemp, 199 Conn. 473, 479 (1986).   Indeed, the requirement that a forensic pathologist's opinion as to the nature of stab wounds must meet the certainty level of reasonable probability rather than mere possibility was applied by our Supreme Court in State v. Weinberg, 215 Conn. 231, 245 (1990).

Because the only evidence the petitioner proffered as to the failure to call a forensic pathologist was Dr. Taff and because he could furnish no admissible testimony as to whether the petitioner's injuries were defensive or otherwise, the petitioner cannot meet his burden of proving that the outcome of his criminal trial would have been different.

Brady Violation Claim

The petitioner asserts that the prosecutor at his criminal trial, Assistant State's Attorney Stacey Haupt, must have secured a secret deal with one of the state's witnesses, Shandra Barret, namely, that Barret would receive favorable treatment with respect to the narcotics charges against her in exchange for her willingness to testify against the petitioner at his jury trial.   The court finds that no such deal, secret or otherwise, every transpired between Barret and the State's Attorney's office.

The petitioner's defense team was well aware of the fact that Barret was, herself, facing criminal charges which carried lengthy maximum penalties.   Attorney Merkin thoroughly cross examined Barret regarding those charges and explored whether any offers of leniency had been communicated to Barret by the prosecutors.   Barret unequivocally denied the existence of any such communication.

At the habeas trial, Assistant State's Attorney Haupt, who represented the state at the petitioner's criminal trial, adamantly denied that any such offer was conveyed to Barret.   No credible evidence to the contrary was adduced at the habeas trial.   The court finds the testimony of Haupt and Barret truthful on this point.

The petitioner hangs his claim of a Brady violation by the thread of mere speculation.   He presented evidence that four months after Barret testified against him, she pleaded guilty to a single count of possession of narcotics with intent to sell for which she received a suspended sentence, as recommended by the prosecutor.   Her probation had conditions of substance abuse screening and treatment.   The petitioner's suspicions are in the court's view, rank conjecture.

For these reasons, the petition for habeas corpus relief is denied.

Sferrazza

Sferrazza, Samuel J., J.