Vernol Gary v. Warden, State Prison (2011)

DECISION

DECISION

THE COURT:  The court's heard the evidence and arguments of counsel and first I would note that the petitioner has withdrawn certain claims.   Count two, prosecutorial misconduct, that was specifically withdrawn, and the court notes that there was no evidence on this claim.

ATTY. MASI:  Briefly, Your Honor, I believe that that's count three.

ATTY. JOY:  Correct.

THE COURT:  Is it?   Oh, hang on.   Thank you.

ATTY. MASI:  You're welcome.

THE COURT:  Wait a minute.   Okay. Right.   Thank you.   Count three.

All right.   Count one, failure to properly voir dire the jury pool, page ․ excuse me, paragraphs 26 and 33, the petitioner has withdrawn that claim.   I also note there was no evidence produced on that claim.

Count one, failure to advise and inform the petitioner of the process regarding sentence review, that's paragraphs 27 and 34 of count one, the court also notes that the evidence showed that the petitioner did, in fact, appeal, has a petition pending and, therefore, there could be no prejudice on this claim.

All right.   As to the remaining claims, the standard of review on an ineffective assistance of counsel claim is well established.   In order to prove a claim of ineffective assistance of counsel, it's the petitioner's burden to show that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.

The petitioner's first remaining claim is as to an ineffective general investigation, paragraph 21 of count one.   The petitioner has explained that this is not a separate claim, so I won't address that separately.

The second claim of ineffective assistance of counsel is the trial counsel's failure to interview and call three witnesses at trial;  particularly Alton Woods, Steven Jones and Marcia Brown.   That's paragraph 22 of count one.

The evidence showed that trial counsel did, in fact, interview, or had his investigator interview these witnesses and concluded that they either had no relevant information or that their testimony could hurt the petitioner's case.

The court finds that these were objectively reasonable decisions by the trial counsel, particularly as to Mr. Jones, whose testimony would have hurt the petitioner's case.

The court also finds that the petitioner has not established any prejudice by not calling these witnesses, particularly Woods and Brown.

The next claim is that trial counsel failed to investigate and obtain a videotape from a local convenience store, which resulted in the tape being destroyed, count one, paragraph 23.

The evidence at trial showed that the ․ this trial, showed that the trial counsel did attempt to obtain the tape, received a tape from the police, but that turned out to be the wrong tape.   Trial counsel tried to recover the right tape.   It had already been destroyed by the store.

The petitioner has not shown how any of this was the trial attorney's fault or how his performance was deficient in this regard.   But the petitioner also claims, as to this particular claim on the videotape, that although he didn't specifically allege it in his petition, that the tape would have shown a discrepancy as to the time.   However, the petitioner has failed to show what was on the tape or how that information would have altered the result at trial;  therefore, he's not shown prejudice.

The petitioner has provided some trial transcripts of the victim's testimony and arguments of trial counsel showing the victim's statements of when she and the petitioner went to this convenience store, but the petitioner has not shown what was on the tape or how that information would have altered the outcome of the trial;  therefore, there's no prejudice.

The petitioner also claims that the trial attorney failed to obtain and examine unredacted emergency room medical records of the victim, count one, paragraph 24.

The evidence showed that trial counsel did, in fact, attempt to obtain the unredacted records a number of times prior to trial.   Trial counsel ultimately did obtain the records unredacted per a court order and had the records reviewed by an expert toxicologist at the UConn Medical Center.   Based on the trial attorney's conversations with the expert, he determined that the unredacted information could not be successfully pursued at trial.

The court finds that the trial counsel acted objectively reasonably in pursuing this issue and in deciding that it would not be useful at trial.

The petitioner claims that despite this, the trial attorney should have obtained the unredacted records sooner and his failure to do so was deficient.   However, even if this were the case, the petitioner has failed to show how receipt of the unredacted records earlier in the case would have made any difference in the outcome of the trial.   Accordingly, the court finds no prejudice on this count.

Finally, the petitioner claims the failure to investigate and obtain certain police reports involving the alleged victim's prior criminal record, that's petition paragraph 25, count one.

The evidence showed that the victim had no prior convictions, but did have one pending criminal matter.   Trial counsel attempted to obtain the police reports, but they were denied him.

The petitioner has failed to produce these police reports or to introduce them as evidence in this case or to show how obtaining such reports would have altered the trial, so, in other words, the court has no way of knowing what was in these reports or how what was in those reports could have altered the trial.

The petitioner now claims, although not specifically alleged in the petition, that the petitioner asked his trial attorney to find out how the victim acted when she spent a weekend in jail one week prior to the trial and that the trial attorney did not do so.

Trial counsel did not recall that the petitioner asked him to look for this information.   However, the petitioner has failed to produce any evidence to show the nature of the victim's conduct while she was incarcerated a week prior to the events in this case or how such evidence, had it been introduced, would have impacted the trial.

Thus, the petitioner has failed to show prejudice on this claim.

Thus, as to these remaining claims and for the foregoing reasons, the petitioner has failed to show that his trial attorney was ineffective, and on the remaining claim, which is count two, due process violation, the court does not see that any separate deprivation claim or arguments different from count one are being pursued here and, therefore, denies count two for the same reasons.

Accordingly, the petition is denied.

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Cobb, J.

Cobb, Susan Quinn, J.