Lamont Thergood v. Warden (2011)

MEMORANDUM OF DECISION

THE COURT:  All right.   The claim in this case regarding Attorney Kirschbaum is twofold.

One is that Attorney Kirschbaum failed to present at the first habeas trial the other witnesses that were in the lockup with the petitioner who could have refuted the claim by the police that the statement—that they overheard certain statements made by the petitioner and statements of an inculpatory nature, including those indicating that he shot the person and did it for no reason and other unambiguous statements that he was the one responsible for the shooting.

The petitioner denies making those statements and claims either that they are fabrications of the police or were taken out of context.

The petitioner has the burden of proving those allegations in this petition.   The burden is proof by a preponderance of the evidence, and in order to find that Attorney Kirschbaum did not provide reasonably competent counsel, under the first prong of Strickland, the petitioner has to prove that had Attorney Kirschbaum put these witnesses on, they would have supported his theory that is set forth in this petition.   There's been no evidence submitted in support of that at all.

There were a number of individuals identified by the petitioner.   The first two, Owens and Baldwin, directly incriminated the petitioner.   It is unlikely that they would have—they would come into court and say that what the police said about the inculpatory statements was not true;  and in any event, the petitioner hasn't presented Owens and Baldwin to testify.

He—nor has he presented his brother or his mother to testify that the statements he made to his mother on the phone were taken out of context or that the conversation he had with his brother never occurred or was taken out of context.

In fact, the Court finds it significant that the petitioner didn't even try to put in context those statements when he testified or did he deny making those statements to the individuals.   Even if he had, that would still not be sufficient evidence to show that these witnesses, had they been called, would have supported his claim.

Because he hasn't put those witnesses on, there is no basis for the Court to find that Attorney Kirschbaum's failure to put those witnesses on did not constitute reasonably competent counsel;  and therefore, the petitioner has not met the first prong of Strickland with respect to that claim.

With respect to the second claim, regarding the blood on the sneakers, again, it's the petitioner's burden to show that had the sneakers been brought in, they would have shown something different than what was alleged at trial.

And they would have to show that Attorney Kirschbaum's decision not to pursue that claim regarding Attorney Skyers was not reasonably competent because Attorney Skyers' decision not to pursue it at trial was not a reasonably competent decision.

The Court finds that even if I assume—although there's been no evidence presented by the petitioner, even if I assume that the blood on the sneakers was not the victim's but was this other individual—as testified to by the petitioner—the Court can't find that the first prong of Strickland has been met because given the petitioner's testimony that the blood on the sneakers was from another woman, whose beating he participated in by directly kicking the woman, one could understand why Attorney Skyers would not want to offer that evidence at his trial when there was so much other inculpatory evidence.

It would have cast the petitioner in even a worse light before the jury at that trial;  consequently, not pursuing that claim against Attorney Skyers was not ineffective by Attorney Kirschbaum because it was a reasonable conclusion for him to make that it was a reasonable strategy decision for Attorney Skyers to make.

In addition, even if the first prong of Strickland was met, the petitioner hasn't met the second prong of Strickland because there was so much other inculpatory evidence—including the statements made—as indicated and described in the Appellate Court's decision on the direct appeal, where the Court there found that even if you take out the petitioner's inculpatory statement—custodial statement made, there was still overwhelming evidence that established beyond a reasonable doubt his guilt.

I find it significant that the Appellate Court in ruling on the direct appeal didn't even address the substantive underlying issue of whether it was—whether the statement was involuntary, because they went straight to the prejudice prong and found that it was—it was harmless error because the amount of evidence was so overwhelming, including the statements made by other individuals and the eyewitness testimony of Owens and Baldwin.

Now, I understand, Attorney Visone, what you're saying, that you have three people here.   It appears that one of them killed the victim, and the other two who were cousins, as the petitioner testified, testified against him and pointed the finger at him.

The problem is, those are issues that get sorted out at the original trial, and absent some new evidence that would create either an actual innocence claim or something else that would suggest that counsel should have done something differently at trial with respect to them, this Court can't find—can't rule in the petitioner's favor on that.

And certainly, based on the specific claims made here, the petitioner hasn't established either the first prong under Strickland or the second prong under Strickland.   So for those reasons, the petition is denied.

(The matter was concluded, and court stood in recess.)

William H. Bright, Jr., Superior Court Judge

Bright, William H., J.