Shaun Williams v. Warden (2011)

HABEAS TRIAL MEMORANDUM OF DECISION

THE COURT:  And first, I guess I would like to address the petitioner.   That probably would be the most appropriate.   What I'm going to tell you, sir, is that your burden today—no.   You can remain seated.

Your burden today is a very difficult one.   I'm sure that Mr. Bansley in his preparation of this matter and his discussions with you about what he's going to do in this case gave you the understanding that this is not going to be an easy matter for you to prove.

So just to—and again, both attorneys understand this very well;  but just to make it clear to you, the standard and the burden is that you as the petitioner must not only show the Court that the attorney, your trial counsel, Attorney Lorenzen, was ineffective—and that is, first, a very difficult burden—but you have to show that with evidence and convince the Court by all the testimony and any other evidence, by these exhibits that I've read, anything that you wish to present to the Court, that he was, in fact, ineffective.

So I have to come to that conclusion first, or I can come to, simply, another conclusion.   I can also take the second prong of Strickland v. Washington, which is the controlling case here, and determine that there is no prejudice in this regard, in this case.   So simply put, I guess what I'm telling you is you've got to do two things, not just one.

If your—the Court has a choice.   I can just decide that there was no ineffective assistance here, and then that's all I have to do to deny your petition.   But in order for you to win, to succeed here and have me grant the petition, you have to prove to me by all of these witnesses and evidence that not only was Attorney Lorenzen ineffective by the standards that are explained in the case law, but that, in fact, you were prejudiced by that ineffective behavior or counseling.

So it's obviously harder for you, and it's easier for me when I have to decide that this should be denied.

Now, having said that, I just want to go over the claims and what I heard as the evidence and what I think should be done here.   Now, there are essentially four claims here that you've made.

First and foremost is the fact that you say that he did not adequately investigate at all—in terms, specifically, of the alibi defense—but that he just didn't do enough of an investigation so that any Court could expect and make a finding by facts, having heard them, that he reasonably, effectively represented you.   Okay.

Well here, what I've heard—and I reviewed Mr. Lorenzen's testimony, Attorney Lorenzen's testimony, before coming back here, besides reading portions of the trial transcript, and it appeared that as the state has pointed out, he immediately got his investigator, Mr.—let's see.   His last name is Acaron—Mr.   Guillermo Acaron.   He got him on the job right after he met you, back in 2005.

And Mr. Acaron was able to find both Ms. Clark and Mr. Silva, at least not—not Mr. Silva initially, but Ms. Clark, certainly.   And he interviewed her.

He brought back all this information to Mr. Lorenzen, and Mr. Lorenzen—although he didn't speak with her directly—had an opportunity to think about what she said and the information he received.

Now, with Mr. Silva, it was a different situation.   He did not—although he subpoenaed him to the trial because he felt that it might be important to have him testify, after speaking with him, it appeared that he felt not only would it be—would it just not be helpful, it, in fact, would be detrimental to you if he had him testify;  and he stated his specific reasons as to why he felt that.

Now, with—again, in terms of your proof that you have to bring to the Court, it would have to convince me that whatever Mr. Lorenzen did in terms of investigating the alibi defenses fell below the standard of what a typical and reasonable, reasonably effective attorney would do;  and in this case, I simply cannot come to that conclusion, so I feel that the first claim regarding the investigation of the alibi defense, I would state that I concluded that you have not met your burden as to that matter.

Now, the second claim deals with the potential witnesses which I mentioned a moment ago, Mr. Silva and Ms. Clark.   And in that instance, the fact that—let me just state—I'm just going to go back to your petition and state how you—okay.

The second claim is that Mr. Lorenzen did not properly investigate adequately and effectively the witnesses which you identified to him as Mr. Silva and Ms. Clark.   The—maybe I missed the first one.   Let's see.   No. All right.

So claim A, that counsel failed or neglected to conduct a sufficient investigation;  in that instance, that's a more general claim, I would assume.   And what I will say as to that is essentially the facts that I found a moment ago, I think I can apply them to B, as well, because in B, you indicate that he did not in a timely manner investigate these witnesses.   And I think that was covered in the fact that he testified that he started this investigation immediately.

And even though Mr. Silva was not interviewed until—at least by Attorney Lorenzen—until the trial had commenced or at least the jury selection had commenced, he did, in fact, have a thorough and face-to-face discussion with Mr. Silva and was able to make a determination as to whether or not he felt his testimony would be helpful or harmful;  and apparently it fell into the last category.   And again, this is—it did not appear that through any fault of Mr. Lorenzen that he had done this in an untimely fashion.

Also, as to C, if the trial defense counsel had properly, timely, and adequately effectively investigated and pursued the testimony of both of these witnesses, it's expected that they would have testified that you, the petitioner, were somewhere else on the date and time of the robbery.

Well, I think, in terms of specifics, what Mr. Lorenzen had testified to earlier about, the fact that there may very likely have been some conflict between your testimony and Ms. Clark's was something that he was extremely conscious of would very reasonably happen and that he certainly did not want to have that happen in the course of such a trial.

So if we go through some of these specifics as to why he felt it would be inappropriate;  first, she had related to the investigator when he reviewed all of this—and this was early on—that she, in fact, was going to say that you were with her all day.   And obviously, one, you had already told him you were not;  and two, he had the phone records indicating that a couple of hours after the incident, you were somewhere else on the phone with—using this cell phone that the victim had in her possession only two hours earlier.

Further, that he became very disturbed and strategically felt it would not be a good idea to pursue this when he could not get access to these children—who were not infants.   They were ages 14 and 10 and certainly would have had some recollection of the event.   But he couldn't even get to discuss anything with them.

And I think that probably certainly raised some red flags in his mind.   But whatever the reasons, he made the determination in a manner in which is appropriate and reasonable in the face of the trial that was actually—had already commenced.

And this is not the kind of situation where—it's very easy, obviously, for people to look back on something and say this should have happened differently when you're examining it from hindsight because you've got the time to reflect.   You've got the time to do a lot of other reading and make some decisions.   These decisions that trial counsel have to make during a trial and just prior to a trial have to be looked upon as—when judged—as through the eyes of someone who is actually in the process of doing this.

There is certain information that Mr. Lorenzen had, and just in terms of his explanation and what I've read from—particularly from the testimony of what—some of the testimony of these other witnesses, it appears he was making decisions in an appropriate and reasonable manner.

They may be in your view, in hindsight, wrong decisions, but no one can judge him in that manner when we're talking about looking at what kinds of decisions he had to make with the information, the appropriate information, that he had before him at the time.

Now, there's another claim which indicates that trial defense counsel failed or neglected to conduct a sufficient investigation into identification defenses, and that is in conjunction with your final claim, that he failed to consult with an expert about eyewitness identification.

Well, Mr. Lorenzen did, in fact—as Mr. Bansley, your attorney, pointed out—say it might have been helpful to me if I had consulted with somebody about eyewitness identification.   But in the grand scheme of things, if we look at this case, there was so much evidence.

And in fact, the victim herself, when she testified about the issue of the gun being in her mouth and in her head and everything was so fast, the interesting thing about this is she also testified that after the two perpetrators got back in the car, she actually jumped on the hood of the car.

Now, anybody that has the courage to deny somebody the access to her property on her—I don't know what this meant to her, but it must have meant a lot.   When she said—when someone has a gun in her mouth and at her temple—she's not giving up this item and then have the presence of mind to jump on the hood of the car, she was in shock, obviously.

She was shaken up.   But she wasn't in extreme shock.   I mean, she must have been cognizant enough of what was going on and angry enough to want to try to get back that item.

So I don't think that an expert who talks about identification is really—in the face of all this testimony—is going to really help Mr. Lorenzen in cross-examining her.   And in fact, I did read in Exhibit A—Respondent's Exhibit A.

I read the cross-examination a couple of times, as a matter of fact, and although, again—and I don't mean to say this in a way that appears that I'm just telling you everything is fine here;  Mr. Lorenzen did a wonderful job.   It certainly doesn't appear even in hindsight that what he did fell below the standard of a reasonably effective counsel.   He—what he had to work with he worked with well.

Now, again, you know, we can all say and point out various failures of people in the past and what they should have done, but according to the case law and according to what we should expect from someone in Mr. Lorenzen's position, I would have to say that there is absolutely nothing I see here that is ineffective assistance of counsel on any of these grounds.

So what I'm going to do is deny the petition, and I will give you the appeal papers now so if you wish to file an appeal, you can do that at your earliest convenience.   And the clerk has them, I expect.   Yes. And the record may reflect that the Marshal is handing those appeal papers to you at this time.

Thank you very much.   All right.   We will adjourn.

Thelma A. Santos, Superior Court Judge

Santos, Thelma A., J.