Luis Diaz v. Warden (2012)

MEMORANDUM OF DECISION

THE COURT:  And during the recess, the Court has had, again, the opportunity to review its notes from trial, relevant exhibits to the counts that remain, and has obviously had the opportunity to consider the testimony that's been presented here;  and the Court is prepared at this time to issue its ruling.

And for the record, prior to this session opening this afternoon, remember Count 1 of the petition was withdrawn by the petitioner, and as we had started evidence already, the Court dismissed that count;  and that dismissal is with prejudice.

Additionally, the respondent made a motion to dismiss—made a motion to dismiss for failure to present prima facie case under Practice Book 15–8, and that was granted as to Counts 3(c) and 4 of the petition.

As to the remaining counts of the petition, that would be Counts 2 and Counts 3(a) and (b), again, this Court is prepared to rule.

Count 2 alleges ineffective assistance of trial counsel, and there are various reasons the Court will go through.

And as we know, the standard for ineffective assistance of counsel is Strickland v. Washington and the cases that follow which indicate that the petitioner must prove two prongs;  and failure to prove either prong is fatal to the claim.

But the petitioner must first prove that counsel's conduct fell below that of a reasonable defense attorney under similar circumstances and also must prove that that conduct prejudiced him, or in other words, in some way affected the outcome of the trial to make—in such a way that the outcome of the trial is not reliable or support is called into question.

As to Count 2(a), there are actually two claims within that count.   The first sentence claims that counsel failed to properly cross examine the state's witnesses in such a way as to present proof of a third party culpability defense, and throughout this hearing, throughout this trial, the standard for third-party culpability, again, has been aptly stated, is that there must be some direct evidence of proof of another person's involvement in the crime for a defendant to have the ability to present that evidence before a jury.

There was no evidence.   Well, first of all, the evidence presented was that counsel actually did intend to make such a claim;  and that that was thwarted by the fact that the State's Attorney's Office filed a motion in limine demanding that they present either an offer of proof or that the Court prevent them without an offer of proof;  and that after—not only after in chambers discussions but after discussions with a couple of the detectives involved in the case, that counsel, in fact, decided to abandon that defense.

That testimony would be simply enough for the Court to find that there was no deficiency in performance because if and when counsel considers his options and then makes a decision to forego a particular option, that's considered strategic, and strategic decisions, again, are viewed not in hindsight but at the time counsel make those decisions.

And under the facts and circumstances presented, the Court will find that counsel's decision based on what he testified he—the information he was given was more than reasonable.

Additionally, the Court finds that there was no prejudice because the evidence presented here clearly indicates that there was no such direct connection to any third party.

There were nuances.   There were possibilities.   There was the allegation that some other individual may have been, a couple of months before, connected to the gun.   There were rumors on the streets, but there was no direct connection in the meaning of the law as to a third party culpable for this offense;  and so the Court finds that the petitioner was in no way prejudiced because it's unlikely that even if counsel could have presented the evidence that was presented here, there would have been any difference in the outcome.

The second half of Paragraph 2(a) claims that counsel failed to highlight inconsistencies in some of the factual details, including whether or not the shooter bent down or whether or not—or what the shooter's skin tone was.

As to whether or not the shooter bent down or not;  again, there's been no evidence presented before this Court as to why that matter or issue was even relevant or germane to the issues at trial.

As to the second claim of whether or not—or the issue regarding the shooter's skin tone;  apparently the record reveals that there was actually testimony and discussion about the meaning of the term ‘moreno’ and whether or not that meant black or brown or African American.   So again, there was testimony on that issue.

And again, it's not enough for the petitioner just to make the claim that it was not—that something was not done and then show that it was not done.   It's petitioner's—more so their burden to actually present evidence that shows that it was unreasonable for counsel to not have presented this evidence, and that if additional evidence had been presented, it would have changed the outcome of the trial;  and that was not done here.

Frankly, there was—or at least the issue of whether or not the description of the shooter's skin tone was accurate was raised before the jury, and if there was additional or relevant evidence to that effect, it was the petitioner's burden to present it;  and no other evidence was presented.

So again, on that issue, there was no deficiency in counsel's performance, nor does the Court find that there was any prejudice.

As to Count 2(b), that counsel failed to pursue the third-party culpability defense as to Eugene ‘Little Gene’ Jackson or Michael Gaines;  again, there was no evidence presented here to support such a claim against either one of those two individuals, and the Court primarily relies on its comments as to Count 2(a), as to, again, the viability of this third-party culpability defense.

And so again, there is no deficiency in performance as to Count (b), nor does the Court find there's any prejudice.

As to the claim that—Count 2(c) claims that trial counsel failed to properly examine his own witness in failing to establish the defense of third-party culpability.   Again, the mere claim that he failed to properly examine his own witness—again, what that means or what in generality that means, that is the petitioner's burden.

If the petitioner claims there's any additional evidence or any additional testimony that could have or should have been presented, it is the petitioner's burden to present that evidence before the Court.   Failing to do so is fatal to the petitioner's claim.

Having heard no such evidence of what additional evidence or what additional testimony Mr. Diaz could have provided to the Court, that claim fails for lack of evidence.

And again, as to the second part of that claim, with regards to the failure to establish third-party culpability through Mr. Diaz's testimony, the Court relies on its prior comments as to the evidence that was presented before this Court or the lack thereof in regards to a viable third-party culpability defense.

Also in that same paragraph it claims that counsel failed to establish inconsistencies in evidence.   For example, failed to ask Venus Hoheb whether the shooter bent down or not;  again, there was no evidence presented as to what additional evidence or what additional inconsistencies through this Venus Hoheb or other witnesses could have or should have been presented or how that would have changed the outcome of the trial.

Venus Hoheb was not a witness here, and the Court has already addressed the fact that there has been no real proof that this issue of whether the shooter bent down or stood up or was running were at all relevant.   So again, the failure to present Venus Hoheb is fatal to any claims that may relate to her under the final part of Count 2(c).

And the issue with regard to whether or not—and again, with regards to the remainder of the witnesses, since they are not identified and there's been no specific evidence presented, that count also fails for lack of evidence.

With regard to Claim 2(d)—it's the claim that trial counsel failed to present or reasonably discover a number of witnesses and to call them or to present evidence through them.   There are eighteen named witnesses, only three of whom testified.

The ones that testified are Clifton Waiters, who is identified under No. 3;  Jackie Cooper, who was identified under No. 13;  and Eugene ‘Little Gene’ Jackson, who's identified under No. 18.

With respect to all of the other witnesses named under Count 2(d), since they did not testify, any claims that relate to them are deemed abandoned as dismissed and for failure to present any evidence or present the evidence that they may have been able to present at trial.

Again, as to Mr. Clifton Waiters;  again, the Court listened to Mr. Waiters' testimony, and again, Mr. Waiters' testimony at best indicates that he believed the individual he saw run by him may have been dark-skinned.

But again, as to third-party culpability, it is not enough simply to present the possibility that there may have been somebody else, but there must be a direct connection to a third party.

And additionally, there has been no evidence presented here as to how, even if presented—since there was additional evidence at trial as to the potential issue with the skin tone or skin color of the shooter—how Mr. Waiters' testimony in addition to that other testimony would have in and of itself changed the outcome of the hearing.

So again, the Court finds that counsel's performance with regards to not presenting or not locating Mr. Waiters was neither deficient, nor was there any prejudice.

As to the testimony of Ms. Jackie Cooper;  again, even accepting everything Ms.—for our purposes of argument, everything Ms. Cooper said, all she said was that the victim claimed, they set me up.

That doesn't mean there was more than one person at the scene of the shooting.   That doesn't mean that the victim wasn't shot by the person that three other people identified as the shooter.   It simply means that he believes he was set up.

That could have meant somebody told him, hey;  somebody wants to meet you.   They want to talk to you.   There's a drug deal.   It could have meant a thousand things.

It surely is not sufficient in and of itself to prove that the victim, in some dying declaration, affirmatively identified somebody other than the petitioner as the shooter.

And so again—and the other issue was—and the Court credits the testimony.   Ms. Cooper talked to a detective on two separate occasions, and there was no mention of this comment or her discussion with Mr.—the victim in this matter in either one of those reports.

And the Court credits the fact that it wasn't in there because it was never disclosed.   And so if she never disclosed the information, it clearly cannot be considered to be ineffective or deficient in any way by counsel in not discovering that information.

And so again, the Court finds that counsel's performance, either his failure to find or locate or call Ms. Cooper, was neither deficient, nor—in light of the testimony that she provided here that she would have been able to offer, there's no real likelihood that it would have had any effect on the outcome of the trial because all it would seem to indicate was that the victim expected to meet somebody there, and then what he expected to happen didn't happen.

And again, as to Mr. Eugene Jackson—and I'll title it here ‘Little Gene’ Jackson—his testimony, again, was that he wasn't at the area of the shooting, didn't know the petitioner—I mean, didn't know the victim, and had nothing to do with it.

That evidence, again—it was neither deficient by counsel not to present that evidence, nor was it in any way prejudicial to the petitioner for that evidence not to have been presented at trial.

Again, with regards to Count 3, claim of constitutional violations, again, Counts (a) and (b)—Count (a) deals with Eddie Ortiz.   Count (b) deals with James Jefferson.

And the substance of the claims are essentially similar, that they both testified and testified that there were no deals or no understandings in exchange for their testimony;  and that beneficial resolutions of their cases occurred afterwards;  and that was somehow a violation of the petitioner's constitutional rights.

The Court, again, finds that there was no violation here.   The evidence presented here—we'll start with Mr. Ortiz—admittedly could raise an eyebrow to anyone involved in this situation, that a man who's got an eight-year prison sentence several months after he testifies in a murder case—where he claims he's getting no benefit—then has that sentence reduced by five years.

And the Court will admittedly find that it believes or finds somewhat suspect the claims that there's no memory at all by Attorney Stein of the conversations that occurred during the pretrial conference that went on with this matter.   However, that's not the issue.

The issue here is whether or not there's any proof that there was a quid pro quo, an unwritten understanding, or some kind of knowledge that at the time of trial, these witnesses were going to be granted a benefit that they would receive either then or sometime later;  and there's been no proof of that.

There's been no proof that there was an understanding either in the courthouse with Attorney Stein or afterwards.

There was ample cross examination and testimony on the record, and the mere fact that Attorney Stein failed to object or I should say—lack of a better—but agreed that he would allow Mr. Ortiz to get before a judge and make his pitch, so to speak.   Again, that does not prove an antecedent agreement that, frankly, there's been no proof of.

There's been no proof from any other witness or any party.   Mr. Stein testified, and he denies.   And each of the witnesses testified at trial consistently that they were told, you will get nothing.

If afterwards—and I believe Mr. Ortiz may have actually testified, that I was told if afterwards, I thought I could make a pitch to a judge for what I testified to and that a judge would consider it, then so be it.   And that, the Court finds, is, frankly, what happened.

The fact that Attorney Stein was involved in the pretrial I don't find in any way questionable.   His name was on the form, so I would find it natural that the judge would call him into the conference since he was the one that signed the form indicating he was okay with the objection.

But again, the proof that's necessary is that there was an understanding or a knowledge at the time of trial that—or even an unwritten understanding that this benefit would be granted;  and the evidence does not support that that was there.

And Attorney Stein's agreement not to object or to acquiesce to the request for sentence review some five or six months later doesn't necessarily relate back to a knowledge and understanding between he and the witness and his attorney that he was going to do that sometime in the future.

I—the Court also would note specifically, I reviewed the letter, which is Exhibit 17, that Mr. Ortiz wrote the state's attorney.   The majority of the letter, frankly, appears to be not indicating thank you for the help you promised me but mostly appears to indicate he is asking him to help and asking him for his help.

In other words, it doesn't appear that there's a clear understanding that he was guaranteed to get anything.   The words, keep your promise—again, under the circumstances—could mean many different things.   Could mean, you know, that defendants often hear what they want to hear.

But it—a Court doesn't find—and again, the majority of the letter, taken entirely in context, I think the promise, frankly, the Court's opinion, means keep your promise to consider that I testified faithfully and I testified accurately and help me.

And not that you would help me;  but I did what I did.   Now I want you to help me.   But I didn't find it to indicate that there was an up-front agreement.

As to the claim regarding Mr. Jefferson;  again, very similarly, and this case was much different because it was handled and resolved by a completely different and unattached state's attorney.   And I think that in and of itself would be enough to be fatal to Mr. Jefferson's—I mean, Mr. Diaz's claim.

But Attorney Dunn testified that he had no contact or no communication with anyone from Part A;  that no one influenced his decision on how to resolve Mr. Diaz's—I mean, Mr. Jefferson's case.

And so again, there's no proof here that at the time Mr. Jefferson testified, there was any understanding that he was going to get a benefit or he was going to be provided something;  and that's what's necessary.

And I think as the final—the evidence that was presented was that Mr. Jefferson's case or at least his domestic violence case, the Connecticut case that Mr. Dunn handled, was actually resolved some six or eight months prior to the trial.   And so again, he testified to that, and he testified that his case had already been dismissed.

Trial counsel questioned him.   I mean, Mr. Diaz's trial counsel questioned him about whether the police had promised him they were going to help him with his case, whether he had been told he was going to get any benefit by anybody else, and his answers were no.

But again, this is a different issue because his case was, in fact, already resolved by the time he went to trial, and so whatever benefit he was allegedly going to get or receive was there.

So even if there was a deal, the deal was there because the case had been dismissed.   He had given a statement, and he was able to be fully cross examined about it.

With regards to a New York case, again, there's been no evidence presented here that would lead this Court to believe—or no credible evidence—that the State of Connecticut had any effect whatsoever on what New York decided to do.

There was a letter by Attorney Stein, which appears to be very generic, and it indicates that he's telling that the—Mr.   Jefferson came to Connecticut, testified, conducted himself as a gentleman, and thanked New York for allowing him to be here.

Again, that is not sufficient to prove nor do I think that there's—really could be proven that Connecticut was in any way able to, in fact, influence or promise him anything as to what would have happened with his New York case.

And so again, for all of those reasons, as to Counts 3(a) and (b), the Court finds that there was no violation of the petitioner's constitutional rights because there has been no proof that there was any agreement, understanding, whether written or unwritten, or no quid pro quo for the testimony of either James Jefferson or Mr. Eddie Ortiz.

And so for all those reasons—and those are the only remaining counts of the petition—the Court will deny the petition for writ of habeas corpus.

The record will reflect that the petitioner is being given his notice of rights to appeal.

And if he is to appeal, counsel shall prepare and present a judgment file to the clerk within thirty days.

The Court will order a copy of the transcript from this afternoon's session which will stand as the Court's memorandum of decision in this matter.

(The matter was concluded, and court was adjourned for the day.)

Judge John M. Newson, Superior Court Judge

Newson, John M., J.