Troy Harris v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

THE COURT:  I'll just ask the court reporter to produce the statements that I'm going to be making from this point on.   They will be the decision in the matter.

Now—and I did, as Mr. Visone noted, I was sure to ask him if there was one count or two because my remarks revolved around—as I read all of this information, that there is one claim here and that the claim is that Ms. Miller was ineffective in her representation at the habeas matter of this gentleman, Mr. Harris.

Now, what I'm going to indicate first is that just basically both of you know that the controlling case regarding ineffective assistance of counsel is Strickland v. Washington, which has two prongs.   And generally, it is a very difficult burden for a petitioner to prove both of those prongs.   And if the court decides that the petitioner has not proven one of the prongs, it need not even reach the second one.   So it is a very, very significant burden.

Now, the petitioner—let's take the first prong.   The petitioner is required to show that, in this case, Justine Miller was ineffective.   And, obviously, secondly, that he was prejudiced.   But if the court finds that Justine Miller was not ineffective, then the court need not consider the prejudice prong.   And I'm going to deal with the—each of the claims here.

First—and both of you have alluded to specifics on these in terms of the testimony in this case.   But the first claim is that counsel failed to call Tammi Jamison who would recant her trial testimony and say that Troy Harris did not shoot the victims.

Now, I know you've both approached this from different angles, but what I heard specifically stated by Ms. Miller is that she did have her investigator interview the—interview Ms. Jamison.   And, in fact, the petitioner proffered Exhibit 9, I believe it is, when questioning—now I hope I can put my fingers on these.   I think they—oh, yes, here we go.   Yes, they were out of order.   Exhibit 9 is a report by the—by Ms. Miller's investigator, Gregory Senick, which indicated specifically that it appeared that Ms. Jamison was going to recant her trial testimony.   And he uses the word “recanted,” as a matter of fact.

And it's a rather lengthy explanation about why the—what she gave the investigator as to why the Latin Kings, as she stated here, were upset.   And she stated it was because she and Troy had been dealing drugs in the area of their apartment.   She then goes on to talk specifically about this other man who was with her that night, Dontea Starlings.   So it's a rather specific and lengthy explanation about what happened that night that was different from what she testified to.

Now, having presented this to Ms. Miller, we get a very specific explanation from Ms. Miller as to which strategy she used in her presentation or, in this case, not presenting Ms. Jamison at the habeas trial and why she didn't.   And she mentioned that she had met with her twice after this report was given to her, that the—specifically, the second day, which was the date of trial.   I believe it was April 28th of 2008 and maybe April 21st.   I may have that date wrong.   But she gave us the specific date on which she met with her again prior to her testifying.   She was here;  she didn't—she wanted to speak with her before she was going to bring her in;  and on that day, she clearly changed her mind and said, No, not—that story is incorrect—the story that I gave Mr. Senick in this report, I really feel that I don't want to testify and if I—you make me testify, I'm just gonna say the same thing I said at trial.   So for that reason, I think reasonably, Ms. Miller did not call her.

Now, as to the fact that when Ms. Jamison testified here and said she may not have been certain about all of those details to which she testified to, she very clearly, as Mr. Davenport pointed out, said that absolutely, unequivocally, the petitioner was in Waterbury and with her that night.   And I think that came through very clearly.

So the alibi—when we get finally to the alibi claim, I don't think that we even need to deal with that in an evidentiary manner because (1) as Mr. Davenport pointed out, it's already been litigated.   Very clear opinion by Judge Schuman as to why that wouldn't have been at all helpful.   There was conflicting testimony.   But even so, we can—I can even find, as Ms. Miller has stated and has—as the habeas transcript has shown, that the following people were called:  Mr. Minerly, Carl Harris, Lorraine Williams.   Again, conflicting testimony, obviously, in those statements.   But they were called, in fact.   So there really is no claim that there were no alibi witnesses called that has been proven in this case.

So it appears that I will not even need to reach the prejudice prong since it clearly is—has not been proven by the petitioner that any of the decisions made by Ms. Miller during her presentation at the habeas trial were at all unprofessional or ineffective.   And therefore, the petition is dismissed.

Now, I would like the clerk to provide Mr. Visone and his client with the papers for appeal.

THE CLERK:  (Indiscernible).

ATTY. DAVENPORT:  Your Honor, if the court pleases?

THE COURT:  No, I meant dismissed.   Excuse me?

ATTY. DAVENPORT:  Your Honor, if the court pleases.   All due respect to the court.   And I may have missed it, but the court made very clear findings as it related to the alibi.

THE COURT:  Yes.

ATTY. DAVENPORT:—but  there is the—the claim of the psychiatric records——

THE COURT:  Oh, I'm sorry.

ATTY. DAVENPORT:—and—and—

THE COURT:  I apologize.   Yes.

ATTY. DAVENPORT:—and, Your Honor, could the court make a finding as to that, please?

THE COURT:  Yes. I certainly—

ATTY. DAVENPORT:  Thank you.

THE COURT:—I  certainly shall.   I think as to the psychiatric records, there is really—there has not been—it has not been proven by the petitioner that they existed at all.   And the only statement that we have of some potential records came from Ms. Jamison herself and they would be—there would be a one-day stay at Waterbury Hospital, which I do not think would have been very helpful at all to the petitioner.   And on that—for that reason I will indicate that that claim also failed.

Now, is there anything further?

ATTY. DAVENPORT:  No. Thank you, Your Honor.

THE COURT:  Okay.

ATTY. VISONE:  Nothing further, Your Honor.   Thank you.

THE COURT:  Very good.   All right.   We will adjourn.

Santos, J.

Santos, Thelma A., J.