Juan Maldonado v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Juan Maldonado, seeks habeas corpus relief from his incarceration following a trial before a three-judge panel.   He was convicted of murder, illegal possession of a sawed-off shotgun, and assault in the second degree.   For these crimes, the petitioner received a total, effective sentence of fifty-five years imprisonment.   The convictions and sentencing were affirmed on direct appeal.  State v. Maldonado, 51 Conn.App. 702 (1999);  cert. denied, 249 Conn. 904 (1999).

Subsequently, the petitioner filed a habeas petition attacking the effectiveness of the representation of his criminal trial counsel, Attorney Martin Zeldis.   This habeas petition was denied, Maldonado v. Warden, Superior Court, New Haven J.D., d.n. CV 99–0429143 (December 30, 2002, Zoarski, J.) That decision was also affirmed, per curiam, on appeal, Maldonado v. Commissioner, 80 Conn.App. 908 (2003).

The present habeas petition again claims that Attorney Zeldis rendered ineffective assistance at the petitioner's criminal trial and also claims that his appellate counsel, Attorney Lisa Steele, rendered ineffective assistance in his direct appeal, and that his earlier habeas counsel, Attorney Richard Lynch, also rendered ineffective assistance.

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.

A.

Claims re Trial Counsel

In the first count of the amended petition, the petitioner alleges that his trial counsel rendered ineffective assistance by failing to move for a competency examination of the petitioner;  by recommending that he waive his right to a jury trial and elect to have his case heard before a three-judge panel;  by failing to present expert testimony regarding the combined effects of the petitioner's mental illness and his use of alcohol and/or cocaine;  by failing to advise the petitioner regarding possible defenses;  by failing to investigate witnesses properly;  by failing to advise the petitioner as to the strength of the prosecution's case against the petitioner;  and by failing to advise the petitioner properly regarding a possible guilty plea and potential sentence upon such a plea.

The petitioner, in his previous habeas case, asserted that Attorney Zeldis provided substandard representation by failing to press an extreme, emotional disturbance defense.   Although the petitioner now claims that Attorney Zeldis was deficient in several other ways, none of these additional allegations are based on new facts unavailable to the petitioner at the time he filed his previous habeas action.

The adding of new specifications of ineffective assistance is insufficient to state a new legal ground different from that raised by the previous habeas petition which was unsuccessful.  McClendon v. Commissioner, 91 Conn.App. 228, 230 (2006);  cert. denied, 277 Conn. 917 (2006).   Following the dictates of Practice Book § 23–29(3), a subsequent claim of ineffective assistance which does not seek different habeas corpus relief and which is not based on new facts or new evidence “not reasonably available at the time of the prior petition,” ought to be dismissed.  Id., 231.

The waiver of a jury trial and election before a three-judge panel;  the rejection of a possible guilty plea;  the issue of the petitioner's competency at the time of his criminal trial;  the advice regarding the strengths and/or weakness of the state's case;  and the petitioner's mental state and use of intoxicating substances were all facts and issues readily available to the petitioner and his previous habeas counsel, Attorney Lynch, at the time of his earlier habeas case.   The court, therefore, dismisses the first count of the amended petition.

B.

Claims re Appellate Counsel

In the second count, the petitioner alleges that his appellate counsel Attorney Lisa Steele, rendered ineffective assistance by failing to raise the sufficiency of the evidence to convict the petitioner of the three claims of which he was found guilty in light of his insanity defense evidence;  and by failing to move for an articulation of the three-judge panel's decision denying a presentence psychological evaluation.

The petitioner presented no expert witness who criticized any aspect of Attorney Steele's appellate representation.   On the contrary, Attorney Lynch, who represented the petitioner in his earlier habeas case, reviewed Steele's performance and found no basis for any claim of defective representation by her.   This court concurs and finds that the petitioner has failed to prove, by a preponderance of the evidence, that Attorney Steele provided ineffective assistance with respect to the petitioner's direct appeal.

Effective appellate advocates have no obligation to raise or argue every conceivable issue.  Tillman v. Commissioner, 54 Conn.App. 749, 757 (1999).   “A brief that raises every colorable issue runs the risk of burying good arguments in a verbal mound made up of strong and weak contentions.”  Id. Appellate counsel must winnow out weaker arguments on appeal and focus on a few key issues if possible.  Id. For these reasons, a habeas court “must be highly deferential to [appellate] counsel's decision ․” Id.

On direct appeal, Attorney Steele presented one issue, viz, the refusal of the three-judge panel to order an examination of the petitioner by the Whiting Forensic Division under General Statutes § 17a–566(a).   Attorney Steele considered other issues such as the panel's rejection of the petitioner's insanity defense, but judged that the other issues lacked merit and chose to proceed only on the Whiting examination denial.

At the time of the direct appeal, there was sparse appellate law as to the standard a sentencing court ought to apply when contemplating a request under § 17a–566.   Attorney Steele opined that the Appellate Court might use the petitioner's case to define that standard and reverse the denial by the three-judge panel.   Her exercise of professional judgment on this point falls well within the acceptable range of conduct for appellate attorneys.

The petitioner also contends that Attorney Steele should have pursued an insufficiency of evidence claim.   The court disagrees.

The appellate standard on review of insufficiency of evidence claims in criminal cases is well settled.  State v. Legrand, 129 Conn.App. 239, 265 (2011).   Appellate tribunals apply a two-pronged test.  Id. First, the reviewing court construes the trial evidence in the light most favorable to sustaining the guilty verdict.  Id. Second, the reviewing court determines whether the facts and inferences so construed are such that the trier-of-fact “reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.”  Id.

Our appellate courts recognize that the fact-finder may draw any reasonable and logical inference and is not bound to infer only those conclusions consistent with innocence.  Id. The reviewing court does not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence, rather it examines whether there is a reasonable view that supports a finding of guilt beyond a reasonable doubt.  Id.

On October 18, 1996, the three-judge panel announced, on the record, its findings and conclusions as to the petitioner's guilt beyond a reasonable doubt for having committed the three crimes with which he was charged.   The panel determined that the petitioner and his girlfriend shared an apartment on the third floor of a building in which a grocery store was located on the ground floor;  that the petitioner suspected the owner of that grocery of having an affair with the petitioner's girlfriend;  that, on July 29, 1994, the petitioner argued with his girlfriend about his suspicions;  that the petitioner previously threatened to harm the owner of the store as a result of these suspicions;  that the petitioner revealed that a Ouija board communicated to him that he should kill his supposed rival;  that the petitioner punched his girlfriend in the face, seized a kitchen knife, and menacingly accosted her with it;  that a struggle between them ensued, and the petitioner yanked the knife away while his girlfriend was gripping the blade in defense;  that this action caused severe injury to her hand;  that the petitioner retrieved a sawed-off shotgun which was secreted nearby;  that he concealed the shotgun in a bag, entered the grocery, and struggled with the owner resulting in a shot fired into the floor of the grocery;  that the grocer fled and the petitioner pursued him;  that the petitioner caught up with the owner and shot him;  that the petitioner reloaded two rounds and shot the victim two more times in the head;  that the petitioner then exclaimed that the victim could no longer “screw around with women”;  and that the petitioner arranged to leave Connecticut and set up a new life in New Jersey.

A review of the transcripts of the criminal trial discloses that each of these factual findings was amply supported by evidence from which the panel could reasonably conclude that the petitioner committed murder, illegally possessed a sawed-off shotgun, and committed second degree assault of his girlfriend.   This evidence includes a confession by the petitioner, made around six months after the shooting, which corroborated the testimony of the other prosecution witnesses pertaining to the findings listed above.

At his criminal trial, the petitioner asserted the affirmative defense that he was not guilty by reason of mental disease or defect as set forth in General Statutes § 53a–13(a).   The panel considered this defense and rejected it.   Both the defense and prosecution psychiatrists agreed that, at the time of the attacks on July 29, 1994, and for some time before, the petitioner suffered from chronic, paranoid schizophrenia and experienced psychotic episodes.   The panel, however, remained unpersuaded that the petitioner's actions on July 29, 1994, were caused by his mental illness.

The credibility of experts and the weight accorded to expert testimony is determined by the trier-of-fact.  State v. James, 120 Conn.App. 382, 390 (2010).   The panel was free to accept or reject all or any part of the psychiatric evidence addressed.  Id. This principle applies even if the expert testimony is uncontradicted.  Id.

The panel found the petitioner's ability to perceive and execute a methodical plan to shoot the victim after announcing an intent to do so, his consciousness of guilt and rational escape scheme, and the lucidity with which he recounted the events in his confession six months later, to negate proof, by a preponderance of the evidence, that the petitioner lacked substantial capacity to appreciate the wrongfulness of his conduct or to control his conduct as a result of his mental illness.   It was the province of the panel to conclude as it did.

Consequently, the propriety of declining to raise on appeal claims based on insufficiency of evidence to support the petitioner's convictions and rejection of his insanity defense was well justified and an exercise of sound professional judgment by Attorney Steele.   It was well within the bounds of effective, appellate representation to avoid muddying the petitioner's appeal with dubious arguments.

The final allegation of ineffective assistance against Attorney Steele proposes that her failure to seek an articulation of the panel's refusal to order a Whiting examination under § 17a–566 fell below professional norms.   There was no evidence proffered at the habeas trial that such a motion would likely produce findings by the panel that would have enhanced the petitioner's appeal.

It is true that the Appellate Court presumed, in the absence of any record to the contrary, that the three-judge panel employed the correct standard of proof in denying the Whiting motion for psychiatric evaluation.  State v. Maldonado, supra, 710.   But the petitioner offered no evidence at the habeas trial that an articulation would have disclosed that the panel utilized an erroneous standard or abused its discretion in refusing to find that the petitioner, postconviction, posed a danger to himself or others as required by § 17a–566.   The petitioner's allegation in this regard is entirely speculative.

The habeas relief as to the second count of the amended petition is, therefore, denied.

C.

Claims re Habeas Counsel

“To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective and (2) that his trial counsel was ineffective.”  Harris v. Commissioner, 126 Conn.App. 453, 457 (2011).   In the third count of the amended petition, the petitioner alleges that habeas counsel, Attorney Richard Lynch, rendered ineffective assistance during the previous habeas proceeding by failing to raise in that earlier petition that trial counsel, Attorney Zeldis, provided ineffective assistance by never requesting a competency examination of the petitioner;  by failing to advise the petitioner properly regarding waiver of his right to a jury trial;  by failing to ascertain an intoxication defense;  by failing to obtain and present an expert witness regarding the interrelationship between the petitioner's mental illness and the use of intoxicating substances;  by failing to investigate possible “other” defenses and witnesses;  by failing to advise the petitioner properly regarding whether to accept a disposition in lieu of trial;  and by failing to raise claims that appellate counsel rendered ineffective assistance in the ways discussed in section B. of this memorandum.

1.

As to the contentions regarding Attorney Lynch's failure to assert ineffective assistance claims against Attorney Steele, as appellate counsel, the court has already rejected these claims against her in section B. of this memorandum.   Consequently, the court also rejects any of these same claims raised against Attorney Lynch regarding appellate counsel's performance because, as elucidated in section B., the claims lack merit, and Attorney Lynch was justified in declining to allege them.

2.

Regarding the petitioner's contention that Attorney Lynch ought to have attacked Attorney Zeldis' failure to request a competency evaluation of the petitioner during his criminal proceedings, there is simply no evidence to support such a claim.   Every lawyer who represented the petitioner, viz., Attorney Zeldis, Attorney Steele, and Attorney Lynch, testified at the habeas trial that they harbored no doubts as to his ability to understand the nature of the criminal proceedings against him and to assist his attorney in his own defense.   All three found the petitioner to be articulate and intelligent despite the fact that English is the petitioner's second language.

During the pendency at the petitioner's criminal case, as now, General Statutes § 54–56d(b) created a presumption that a criminal defendant is competent to stand trial.   The burden to demonstrate incompetency is on the party asserting it.

The petitioner has failed to prove, by a preponderance of the evidence, that Attorney Zeldis provided substandard representation by failing to move for a competency examination of the petitioner.   Thus, he has also failed to establish that Attorney Lynch was ineffective for declining to raise this claim in the previous habeas case.

3.

The petitioner also contends that Attorney Lynch should have pleaded and proven that Attorney Zeldis was deficient in his advice to the petitioner with respect to waiver of a jury trial and election of a three-judge panel, instead.   On March 21, 1996, the petitioner moved to change his election from a jury to a three-judge panel under General Statutes § 54–82(b).  This motion was granted.

Attorney Zeldis testified at the current habeas trial that he discussed this option with the petitioner because Attorney Zeldis opined that a panel of judges was more inclined to embrace the petitioner's insanity defense.   This inclination was an important consideration because the petitioner possessed a “normal” outward appearance and manner.   The petitioner appreciated this advice and was in full agreement with this recommendation.   The court finds Attorney Zeldis' testimony to be very credible and determines that the petitioner has failed to prove that this recommendation was deficient in any way.

Judges are expected to possess the power to decide controversial matters dispassionately and based solely on the law and facts before the court.   Judges have the duty to set aside prejudice that might arise from sympathy for or antipathy against parties, alleged victims, and their families and friends.   Public opinion and sentiment swirling around a notorious case must be disregarded.   Judicial canons, in addition to the oath of office, impose such duties.   Judges are, presumably, more qualified, better trained, and experienced than the average juror in constraining extraneous matters and applying the law to the evidence produced in the courtroom, see Patterson v. Council on Probate Judicial Conduct, 215 Conn. 553, 566 (1990).

Attorney Zeldis' professional advice to the petitioner that a three-judge panel might be more receptive to the affirmative defense based on mental illness appears reasonable and within the wide range of acceptable conduct by a lawyer in Attorney Zeldis' position at the time he communicated such advice.

The petitioner bears the burden of demonstrating, by a preponderance of the evidence, that Attorney Lynch was deficient by omitting this claim of ineffective assistance by Attorney Zeldis and that this omission likely affected the outcome of the habeas trial.   To assume that a jury would have decided the petitioner's case differently is pure conjecture.   There was no credible evidence presented that the petitioner was unaware of his right to a jury trial.   Indeed, he had elected a jury trial before he moved to change that election on March 21, 1996.   This allegation of ineffective assistance of habeas counsel also fails.

4.

Next, the petitioner argues that Attorney Lynch provided ineffective assistance as habeas counsel by failing to raise a claim that Attorney Zeldis ought to have asserted an intoxication defense at the criminal trial.   The court disagrees.

No expert testified that Attorney Zeldis was incorrect in viewing the insanity defense as the most likely to succeed.   It should be noted that the petitioner expressly rejected a judicially-indicated sentence of thirty-seven years imprisonment on a guilty plea to murder.   The basis for the petitioner's decision was that he preferred to risk spending the remainder of his life in a mental hospital rather than serve a potentially lesser prison term.   In other words, the petitioner desired to mount the insanity defense despite the distinct possibility that, if successful, he would likely reside in a facility for the mentally ill for the rest of his life.

An intoxication defense was incompatible with this preference.   Under General Statutes § 53a–13(b), “[i]t shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance ․” Also, voluntary intoxication is no defense to a general intent crime such as illegal possession of a sawed-off shotgun.  State v. Gray, 126 Conn.App. 512, 522 (2011).   Attorney Zeldis cannot be faulted for avoiding the contamination of the more meritorious defense of insanity through affiliation with the weaker one of intoxication, Santiago v. Commissioner, 125 Conn.App. 641, 647–48 (2010).

In addition, it is highly improbable that such a strategy based on intoxication would have succeeded on the evidence available to Attorney Zeldis.  General Statutes § 53a–7 disallows intoxication as an affirmative defense to criminal charges, but that provision does acknowledge that intoxication may be relevant to negate an element of a particular crime, such as specific intent.  State v. Rice, 105 Conn.App. 103, 109 (2007).   The three-judge panel was aware of the petitioner's use of alcohol and cocaine but still found that it was jealousy which motivated him to kill the owner of the grocery and to assault his girlfriend.   As noted above, the panel found that the petitioner carried out his crimes methodically and with forethought.   Attorney Lynch would have found it impossible to make out this claim of ineffectiveness on the part of Attorney Zeldis because he could not satisfy the prejudice component of the Strickland standard.

5.

Along the same line of reasoning, the petitioner has failed to meet his burden of demonstrating that Attorney Zeldis should have sought out and proffered the testimony of an expert witness on the interplay of mental illness and intoxicating substances.   Again, under § 53a–13(b), voluntary intoxication would have undermined the petitioner's best theory of defense, namely insanity.   Insanity was the defense upon which the petitioner wanted to prevail even to the exclusion of a lesser prison sentence.

Also, the petitioner offered the testimony of Dr. Charles McKay, Jr., an expert in the field of toxicology and emergency medicine at the second habeas trial.   However, Dr. McKay's testimony discredited rather than aided the petitioner's position.

Dr. McKay related an opinion which indicated that the effects of cocaine use on the petitioner's mental state at the time of the incidents was negligible.   He noted that, unless the petitioner had consumed cocaine within a few hours of the shooting, its use would have made no contribution to the petitioner's mental status.   It is uncontroverted that the petitioner never claimed to have ingested cocaine within this period before the homicide.   In fact, he denied consuming cocaine at any time on the day of the crimes in his statement to the police.   In short, it is very unlikely Dr. McKay could have assisted the petitioner in this regard.

6.

As to the catchall allegations of ineffective assistance, these claims are too vague to inform the respondent and the court as to what “other defenses” or “other witnesses” Attorney Zeldis ought to have presented.   Such imprecise pleading is to be avoided.   A habeas petition corresponds to a complaint in civil actions generally.  Martinez v. Commissioner, 105 Conn.App. 65, 70 (2007).   Because this language fails to apprise the court of any particular deficiencies on the part of Attorney Zeldis, the court, of course, cannot find that Attorney Lynch rendered ineffective assistance by not raising these unidentified claims.

For these reasons, the habeas petition is denied.

Sferrazza, J.

Sferrazza, Samuel J., J.