338070 v. Warden (2012)

MEMORANDUM OF DECISION

The petitioner, Rodney Hankerson, brings this petition for a writ of habeas corpus claiming that his trial attorneys were ineffective.   The petitioner is presently serving a sixty-year sentence for felony murder and robbery in the first degree after having been found guilty by a jury.

The jury could reasonably found the following facts.

On September 22, 2005, the victim, Luis Bruno, a drug dealer, had agreed to purchase a large quantity of cocaine from Herman Apodaca for $60,000.   They agreed to complete the sale on September 24, 2005, at the victim's apartment in New Britain.   On that date, the defendant, Apodaca and Eduardo Davila drove to the victim's apartment from New York. Upon their arrival, the defendant, carrying a large bag, entered the victim's apartment with Davila.   Apodaca followed the men into the apartment soon thereafter.   Several minutes later, Apodaca exited the apartment carrying a plastic bag stuffed with money.   Thereafter, the defendant and Davila exited the apartment.   Both men had bloodstains on their clothing, and the defendant was carrying the same bag that he had carried into the apartment.

From a vantage point outside of the victim's apartment, a friend of the victim, Raul Cruz, observed the defendant, Apodaca and Davila enter and leave the apartment.   Upon observing the defendant and Davila leave the apartment, Cruz heard the victim calling for help.   He approached the door to the apartment to find the victim lying on his kitchen floor, covered in blood.   He then observed the defendant and Davila quickly enter a van and drive away from the scene.   Cruz brandished a gun and fired a gunshot at the van, to no avail.   By this time, Apodaca also had driven away from the scene in an automobile.   The victim had been stabbed multiple times with various knives and died soon thereafter.

State v. Hankerson, 118 Conn.App. 380, 381–2, 983 A.2d 898 (2009).

The petitioner appealed his conviction to the Appellate Court, which affirmed it.  Id. The petitioner's petition for certification to the Supreme Court was denied.  State v. Hankerson, 298 Conn. 932, 10 A.3d 518 (2010).

In his third amended petition, the petitioner claims that his trial attorneys, Jeffrey Kestenband and William Paetzold, were ineffective in representing him at trial because:

1.  They failed to introduce into evidence statements of one of the co-defendants who confessed to the murder and the other codefendant who could have stopped the crime but chose not to do so;

2.  They failed to request a jury instruction for the affirmative defense, and adequate instruction on proximate cause, and an appropriate instruction for felony murder;

3.  They failed to ensure that the instructions were complete, accurate and appropriate;

4.  Failed to properly cross examine Johnny Ortiz and Raul Cruz;

5.  Failed to object to testimony of Raul Cruz that he was not there to tell the truth but to convict the petitioner;

6.  Failed to investigate and interview Danny Erazo, who heard Eduardo Davila confess to the murder;

7.  Failed to request a lessor included jury charge;

8.  Failed to inform the court that a juror fell asleep during the trial;  and

9.  Focused on proving that there was no conspiracy to acquit the petitioner of liability under the felony murder doctrine.

The petitioner claims that but for counsels' deficient performance, he would have been acquitted of all charges.   By way of relief, the petitioner seeks an order vacating his conviction and granting him a new trial.

A trial was held in this case on December 8, 2011.   The petitioner introduced the testimony of himself, Brendon Levesque, petitioner's appellate counsel, and Jeffrey Kestenband, one of petitioner's trial attorneys.   The parties introduced as evidence transcripts, police reports and statements.   The parties filed post-trial briefs.

The court finds the following facts.   The defense theory was to try to convince the jury that the defendant was not culpable of the underlying crimes of murder and robbery because he had no knowledge of any criminal plot.   Rather, he believed that he and his co-defendants went to the victim's home to obtain music.   Petitioner claimed at trial therefore that he was not part of the criminal conspiracy.   If the jury believed that the petitioner was not part of the conspiracy, the defense believed that the jury would find him not guilty of the underlying crimes of robbery or felony murder.   However, the strategy did not prevail at trial, as the petitioner was acquitted of the conspiracy charges but found guilty by the jury of felony murder and two counts of robbery in the first degree.

Trial counsel did not seek a jury instruction on an affirmative defense to felony murder because he believed that such a charge would have been inconsistent with the theory of the defense and he did not want to alienate the jury.   As to the proximate cause charge, Kestenband believed it was adequate, particularly in view of the fact the issue of proximate cause was not integral to the defendant's theory of the defense.   Kestenband also reviewed various witness statements, but did not believe that these statements were helpful to the defense theory of the case, but rather implicated the petitioner in the murder.   He therefore did not pursue them.

It is well-established that in order to establish a claim of ineffective assistance of counsel, the petitioner has the burden to show that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) 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.”  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008);  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “To satisfy the ‘performance prong,’ a claimant must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by Sixth Amendment.'   “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom, Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 667.

Under the second prong of the test, prejudice, the petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.  Strickland v. Washington, supra, 466 U.S. 687.   Ultimately, the “benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland v. Washington, supra, 466 U.S. 686.

When assessing trial counsel's performance, the habeas court is required to “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ․” Strickland v. Washington, supra, 466 U.S. 689–90.   The United States Supreme Court explained:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”  ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.

Id. (Internal citations omitted.)

Having reviewed all of the evidence and heard the testimony of the trial witnesses, the court finds all of the issues for the respondent.

The petitioner failed to provide any evidence on certain claims and as to the claims he did produce evidence, he failed to meet his burden to prove that his trial attorneys' conduct at trial was deficient or to overcome the presumption that counsels' conduct was reasonable.   Attorney Kestenband testified credibly as to the strategic reasons for his actions, including his and co-counsel's decisions not to object to certain matters, not to pursue certain lines of cross examination, not to interview certain witnesses, or seek certain jury instructions.   The court will not second guess a trial attorney's strategic trial decisions.   An attorney's line of questioning of a witness is a tactical decision.  Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 770, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008).

As to claims relating to counsel's failure to investigate or interview witnesses, petitioner must show what if anything the investigation would have shown.  Holley v. Commissioner, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).   The petitioner provided no such proof in this case.

As to the jury instruction claims, the decision to object to a charge and to seek or not seek a particular charge is a strategic decision, particularly where that decision is made consistent with the defendant's theory of the defense.   See Gibson v. Commissioner, 118 Conn.App. 863, 876, 986 A.2d 303, cert. denied, 295 Conn. 919, 991 A.2d 565 (2010);  Moore v. Commissioner of Correction, 119 Conn.App. 530, 540, 988 A.2d 881, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).   Trial counsels' decisions in this case with respect to the jury instructions were consistent with the defendant's theory of the case, and were reasonable under the circumstances.

It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action.   Rather, petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as “counsel” as guaranteed by Sixth Amendment and as a result, he was deprived of a fair trial.  Harris v. Commissioner of Correction, 107 Conn.App. 833, 845–46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008);  Giannotti v. Warden, 26 Conn.App. 125, 120, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).   This the petitioner has not done in this case.

Moreover, the petitioner has failed to provide the court with sufficient evidence that but for trial counsel's conduct, there was a reasonably probability that he would have been acquitted of the charges.   Thus, the petitioner has failed to prove that he was prejudiced.  “[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.   Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways.   Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect ․ [A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors ․ To establish prejudice, the petitioner must show that as a result of that [deficient] performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in [the] appeal.”  (Citation omitted;  internal quotation marks omitted.)  Nieves v. Commissioner of Correction, 51 Conn.App. 615, 621, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).”  Gibson v. Commissioner, supra, 118 Conn.App. 875.

Accordingly, the court denies the petition.

Cobb, J.

Cobb, Susan Quinn, J.