143531 v. Warden, State Prison (2012)

MEMORANDUM OF DECISION

I.

Statement of the Case

After trial by jury petitioner was convicted of robbery in the first degree in violation of C.G.S. § 53a–134(a)(4) and larceny in the second degree in violation of § 53a–123(a)(3).   As a consequence of such conviction, petitioner received a total effective sentence of 15 years, execution suspended after ten years with five years of probation.

Petitioner appealed his conviction to the Appellate Court which affirmed the judgment of the trial court.  State v. Hall, 120 Conn.App. 191 (2010).   Cert denied 297 Conn. 903 (2010).

Petitioner is now in the custody of respondent, serving such sentence.

By his petition filed June 11, 2010, petitioner seeks a writ of habeas corpus claiming his confinement is illegal in that it resulted from the denial of his constitutional right to effective assistance of counsel and that he is actually innocent of the crimes for which he was convicted.

The matter was assigned to the Judicial District of New London for trial.

II.

Facts

The facts underlying petitioner's conviction may be summarized as follows.

On the night of June 11, 2007, Shamaila Riaz and Michael Purcell were working in the Bestway gasoline station and convenience store in Moosup.   At approximately 9:30 p.m., an individual later identified as petitioner, wearing a black covering over his nose and mouth entered the store, pointed a silver handgun at Riaz with his left hand and demanded money, threatening to kill her if she did not comply.   At trial, Riaz testified that the man was a Caucasian in his mid–40s with a big belly and was approximately 5' 10” in height.   She described his facial covering as a “black winter mask.”   Purcell described the man as an “older” Caucasian with black hair, approximately 5' 9” or 5' 10” in height who was “kind of heavyset.”   He testified that the covering on the person's face was a black winter-type scarf.   After Riaz had given the defendant the approximately $400 that was in the cash register, the individual ran out of the store.   Riaz chased after the defendant running outside and shouting in an attempt to attract attention.

Outside the gasoline station six teenage boys in the area heard Riaz's shouts and saw the individual running from the scene.   Ryan Tetreault, one of the teenagers, testified that he and five friends came out of the nearby Cumberland Farms store when they encountered Riaz yelling that she had been robbed.   Tetreault had known the petitioner prior to the evening in question.   Tetreault's grandmother is the sister-in-law of petitioner's brother, Thomas Hall. Tetreault and his friends chased after the individual, eventually cornering him in a nearby fenced in parking lot.   The individual then pointed his gun at the teenagers and the covering over his face fell down.   It was then that Tetreault, who was approximately four to five feet away, recognized the individual as petitioner.   Porter also observed the perpetrator's face and identified petitioner as such at trial.   The individual subsequently ran to a nearby parking lot, got into a maroon four-door Volkswagen Passat and drove away.   Tetreault had previously seen petitioner driving the same car.

Local police arrived at the scene shortly after the individual had fled.   Officers interviewed the witnesses and viewed a video of the surveillance system within the store.   On the basis of their investigation, the police suspected petitioner to be the perpetrator.   They proceeded to his home where after a period of surveillance they announced their presence and petitioner met them without protest.   The petitioner spoke willingly to the police and provided three different accounts of his whereabouts during the time of the robbery.   A search, executed pursuant to a warrant of petitioner's home, revealed .25 caliber handgun ammunition.   Police found a black scarf on the passenger side floor of petitioner's red Volkswagen automobile.   Neither the handgun used in the robbery nor the stolen proceeds were ever located.

Tetreault and his five associates;  Jeremy Porter, Nicholas Coffee, Timothy Kuuttila, Zachary Holden and Joseph Holden, testified at petitioner's trial in a substantially similar manner as did Tetreault regarding the events of the evening.   Each of the teenagers testified as to the man's physical characteristics.   The physical descriptions were similar to the appearance of petitioner.   There was also evidence that petitioner was the registered owner of a red 2003 Volkswagen Passat.

During the trial the State also presented the testimony of Elizabeth Mack. Mack testified that on the evening in question she and her husband were driving in the area of the Bestway gasoline station where she saw petitioner standing on the side of the store “with something over his face and breathing very heavily.”   Mack stated that she told her husband, who was driving at the time, of defendant's presence and her impression that he “looked like he was pumping himself to rob the store.”   Mack testified that she had known petitioner for approximately seven years through her acquaintance with his wife.   She stated that she had seen petitioner on or about four or five occasions in the period since she had known him and that he had been to her house a few times and had built a computer for her son and had attempted to install memory cards into the computer.

During the trial the State introduced into evidence a videotape depicting the robbery of the Bestway store.

Additional facts will be stated as required.

III.

Analysis

Attorney John Harris, Jr., was retained by petitioner to represent him in the criminal prosecution.   Attorney Harris, who had represented petitioner in prior matters, represented petitioner in all of his pre-trial matters and during the jury trial.   Petitioner has alleged that in representing him Attorney Harris was inefficient so as to violate his constitutional right to a fair trial.

As a defendant in a criminal proceeding, petitioner was “constitutionally entitled to adequate and effective assistance of counsel at all critical stages of the criminal proceeding.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984).   This right arises under the Sixth and Fourteenth amendments to the United States Constitution and Article 1st, § 8 of the Connecticut Constitution.”  Copas v. Commissioner of Correction, 234 Conn. 139, 153 (1995).

The general standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, supra, 466 U.S. 668.  “In order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice ․ thus, he must establish not only that his counsel's performance was deficient, but as a result thereof he suffered actual prejudice;  namely, that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ In this context, a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome of the case ․ Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome ․ Bunkley v. Commissioner of Correction, 222 Conn. 444, 445–46 610 A.2d 592 (1992).”  Mercer v. Commissioner of Correction, 51 Conn.App. 638–640–41 (1999).

“In order to succeed in a claim of ineffective assistance of counsel, the petitioner must prove:  (1) that his counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law;  and (2) that this lack of competence contributed so significantly to his conviction as to have deprived him of a fair trial.”  Id.

Only if the petitioner succeeds in this herculean task will she receive a new trial.  Denby v. Commissioner of Correction, 66 Conn.App. 809, 812–13 (2001).

In his petition it is claimed that Attorney Harris was inefficient in that he failed to object to clearly inadmissible and prejudicial evidence including a DVD. It is also claimed that Attorney Harris' representation was inefficient in that he failed to advise petitioner whether or not to accept the State's plea offer and that he failed to submit a sentence review application on behalf of petitioner after conviction.¹

(1)

a.

Before the Appellate Court petitioner claimed that the trial court improperly allowed the videotape depicting the robbery of the Bestway store to be admitted into evidence.   It was argued that the videotape should not have been admitted due to the circumstances under which the tape had been created.   Because Attorney Harris failed to object to the admission of this evidence at trial, the Appellate Court declined to review this claim.

At trial during Riaz's testimony, the VHS tape of the Bestway store was admitted into evidence.   She testified that the videotape fairly and accurately depicted the incident.   Later in the trial a detective testified as to how the videotape had been produced.   The detective stated that because the in-store surveillance system was digital, it was not capable of reproduction.   The detective recorded the digital image with a handheld camera and later transferred the recording to the VHS tape which was admitted into evidence.   The detective stated that the image on the VHS tape was not as clear as on the in-store system.   When the videotape was offered as a full exhibit, during Riaz's testimony, Attorney Harris failed to object to its admission into evidence and after the detective's testimony, no motion to strike the evidence was made.   On appeal the Appellate Court declined to review petitioner's claim concerning the tape because of his attorney's failure to challenge the admissibility of the evidence.

In failing to object to the admission of the videotape and/or moving to strike its admission, Attorney Harris' conduct must be considered deficient.   The tape, which was admitted into evidence at the habeas trial, and viewed by the court, is not totally clear and the robber cannot be positively identified.   The videotape was prejudicial, however, in that, together with the testimony of the witnesses, it tended to confirm the basic facts of the robbery.   By his failure to challenge the admissibility of the videotape, Attorney Harris denied petitioner the right to Appellate review of its admissibility.

It cannot be found, however, that petitioner suffered any prejudice as a result of Attorney Harris' failure to challenge the admissibility of the videotape.   There is nothing to indicate that an objection to its admissibility would have been successful.  Section 10.1 of the Connecticut Code of Evidence requires that the original recording must be admitted into evidence, except as otherwise provided by the code.   Section 10–2 provides that a copy of a recording is admissible unless a question of authenticity or accuracy of the copy is raised or that it would be unfair to use it in lieu of the original.   In petitioner's case, the detective's testimony could be found to establish authenticity and there is nothing to indicate that admissibility of the videotape would be unfair.   Riaz testified that the tape accurately depicted the incident.   Also, § 10–3(2) would allow the videotape to be admitted when, as at petitioner's trial, the original digital tape was not obtainable.

In addition, although the videotape was prejudicial in that it confirmed the robbery and depicted the perpetrator, it was also cumulative.   The testimony of Riaz and Purcell clearly stated what occurred and described the robber.   The videotape supported their testimony.   However, it was not essential to the state's case.   The admission of the videotape into evidence cannot be found to be so significant that it deprived petitioner of a fair trial.

b.

Riaz and Purcell both testified at trial that the robber brandished a silver handgun and demanded money.   Proof of a display or threat to use such a weapon in connection with a robbery was an essential element of the crime of robbery in the first degree for which petitioner was on trial.   The videotape shows the perpetrator to have in his left hand a shining object.   From the tape in evidence, the object in the perpetrator's left hand cannot be identified as a handgun.   At trial, a detective testified that the original digital tape showed the object to be a handgun.   Petitioner now claims that Attorney Harris was deficient because he failed to object to the detective's testimony.

Although it would have been prudent for a lawyer defending a client accused of using a handgun to object to the detective's testimony, it cannot be found that the failure to object was prejudicial.   No case law has been cited to indicate that the testimony was inadmissible.   There was other credible evidence to prove the use of the handgun.

c.

At trial, petitioner elected to testify.   During cross examination, the prosecutor, without objection from Attorney Harris, questioned petitioner about prior misdemeanor convictions that ranged from fifteen to twenty-one years old.   Although harassment, breach of the peace and failure to appear could be felonies, it would appear that all of the prior convictions about which petitioner was questioned were misdemeanors.

Section 6.7 of the Code of Evidence provides that “for the purpose of impeaching the credibility of a witness, evidence that a witness has been convicted of a crime is admissible if the crime was punishable by imprisonment for more than one year.”   In determining whether such evidence should be admitted, the court must consider the extent to which prejudice may arise, the significance of the particular crime indicating untruthfulness and the remoteness in time of the convictions.   Although no absolute time limit that would bar the admissibility of such evidence has been established, the ten-year time limit on admissibility, applicable in Federal jurisdiction, is often the rule.  State v. Sauris, 227 Conn. 409–10 (1993).

There is every reason to believe that a timely objection to the questions concerning petitioner's prior convictions would have precluded such evidence from coming before the jury.   The convictions were for misdemeanors, crimes punishable by imprisonment for less than one year and not involving credibility or truthfulness and were remote in time.   In failing to object to this evidence, Attorney Harris' performance fell below the required standard of reasonable competence displayed by lawyers with ordinary training and skill in the criminal law.   Although Attorney Harris' handling of this evidence was deficient and may have affected petitioner's credibility with the jury, it cannot be found that but for counsel's unprofessional errors, the results of the trial would have been different.

Three eyewitnesses, Tetreault, Porter and Mack, all with prior connections to petitioner, positively identified and tied him into the crime.   Other witnesses, particularly Riaz and Purcell, described the physical characteristics of the perpetrator as being similar to petitioner.   After the confrontation with the teenagers, the robber got into a mahogany or red, Volkswagen Passat.   Tetreault testified that he had previously seen petitioner driving this car.   It was confirmed later that petitioner was the registered owner of such a vehicle.   A black scarf, consistent with the face covering used by the perpetrator during the robbery was found in the Volkswagen and .25 caliber handgun ammunition was discovered in petitioner's home.   Although petitioner's credibility may have suffered as a result of the prosecutor's questions, in view of the overwhelming evidence against him, it cannot be found that misdemeanor testimony affected the outcome of the trial.

d.

By his amendment to the petition of February 21, 2012, petitioner claims that Attorney Harris provided ineffective assistance by failing to submit a sentence review application on his behalf.  Connecticut General Statutes § 51–195 provides that any person sentenced to a period of confinement for three years or more may, within thirty days of the date sentence was imposed, file an application for review of the sentence by the review division.   The statute requires the clerk to give written notice to the person sentenced of his right to sentence review together with the form for the application.

The trial transcript indicates, that at the time petitioner was sentenced, the clerk advised petitioner of the thirty-day time limit and provided him with a copy of the application.   The record indicates that petitioner signed indicating that he received the form.

No application for sentence review was filed by or on behalf of petitioner within the thirty-day time limit.   The thirty-day statutory time limit does not act as a jurisdictional bar to the sentence review division in situations where an application for sentence review was delayed by reason of ineffective assistance of counsel.  James v. Commissioner of Corrections, 245 Conn. 132, 147–48 (1998).

Petitioner had the right to effective assistance of counsel at the time when the invocation of sentence review was at issue.  Id., 144.   Attorney Harris testified at the habeas hearing that it was the client's choice to apply for sentence review or not.   He stated that he gave the form to petitioner and pointed out the time limit on the form.   Petitioner testified that at the habeas hearing that he asked Attorney Harris about sentence review.   Petitioner stated that his attorney informed him that the application would be taken care of by his appellate attorney.

Connecticut Practice Book § 43–23 states that it is the responsibility of the counsel of record at the time of sentencing to represent a defendant at the hearing before the sentence review division unless excused for exceptional reasons.

Petitioner had the right to effective assistance of counsel at the time when the invocation of sentence review was at issue.  Id., 144.   Failure to engage in a meaningful discussion concerning whether to apply for sentence review or not would constitute ineffective assistance of counsel.

Attorney Harris failed to adequately advise petitioner concerning sentence review resulting in a failure to file within the time allowed.   This constituted ineffective assistance of counsel.   Prejudice is established by the fact that petitioner was denied a hearing by the division.  Id., 145.   Bunkley v. Commissioner, 222 Conn. 444, 459 n.16 (1992).

e.

By the amendment of February 12, 2012, it is alleged that Attorney Harris provided ineffective assistance of counsel by his failure to advise petitioner about whether to accept the state's plea offer.

“The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargaining process, responsibilities that must be met to render the adequate assistance of counsel that the sixth amendment requires in the criminal process at critical stages.”  Missouri v. Frey 132 S.Ct. 1399, 7, 182 L.Ed.2d. 374 (2012).”   In Frey, the United States Supreme Court held that, “[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”  Id., 9. The court went on to state that an important guide for counsel's performance would be the American Bar Association's recommendation that defense counsel “promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney.”  Id.

While petitioner's case was pending in the Judicial District of Windham, the state made an offer to resolve petitioner's case with a recommended sentence of eight years to serve.   Petitioner testified that he first learned that the state had made an offer to resolve the case by plea after the trial had started.   His testimony was that during the trial he asked Attorney Harris why the state had not made any sort of a plea offer.   It was petitioner's testimony that Attorney Harris replied, “I knew you wouldn't accept it, so I refused.”   According to petitioner, this was the first time that he learned that an offer had been made.   At the habeas trial, Attorney Harris was questioned by petitioner's attorney about the responsibilities of counsel concerning plea negotiations.   Attorney Harris replied in part, “I would say a general responsibility to discuss with the client whatever offers were being made and also to convey to the prosecuting authority, the client position and factors that would hopefully make the prosecution either reduce the charges, reduce the severity of the requested penalty or dismiss the—nolle the case entirely.”   Attorney Harris stated that he had a responsibility to make a recommendation to his client.   In this regard he testified, “well, a general responsibility is to advise the client of what the State thinks they can prove, what supporting evidence they have, the likelihood of a jury's reaction to the charges, to the information that the State intends to put into evidence and some sort of ballpark estimate or probability of convictions.”   Attorney Harris further testified that he had a responsibility to make a recommendation to petitioner as to what he should do in the case.

Attorney Harris testified at the habeas trial that he conveyed the State's offer to petitioner.   He stated that petitioner rejected the offer because it involved too much time to serve.   The attorney also stated that petitioner did not want to be a party to any plea negotiations.   According to Attorney Harris, petitioner's position was that he did not commit the crime and was home minding his own business at the time the robbery took place.   Attorney Harris testified that he felt that the State had a fairly strong case against petitioner.   This was discussed with petitioner but, according to Attorney Harris, it was petitioner's belief that the State's witnesses were not credible and that a jury would not believe them.   He was not going to plead guilty and go to prison for eight years.

The testimony of petitioner and Attorney Harris is at variance raising a question of credibility.   Petitioner testified that Attorney Harris did not communicate the State's offer to him at a time when it could have been accepted.   Attorney Harris testified that he did so communicate the State's offer to his client and discussed it with him.

Attorney Harris' testimony indicates that he had a proper understanding of the duties of a criminal defense attorney to disclose the State's offer to his client and to discuss it with him.   Attorney Harris' testimony that he did inform petitioner of the eight-year offer and discussed it with him is more credible than petitioner's version of the event under the circumstances.   Because of petitioner's strong position that he did not commit the crime and that the jury would not believe the State's witnesses, discussion of any plea bargain probably was not extensive.   It must however be found that in conveying the State's offer to petitioner, Attorney Harris' conduct met the standard set by the United States Supreme Court in Frey v. Missouri, supra, and that the allegations of ineffective assistance of counsel have not been proven.

The testimony of petitioner's girlfriend, Sherry White, concerning her conversation with Attorney Harris in which the attorney stated that petitioner would “no go for it” confirms petitioner's position that he wanted to go to trial and is not at variance with the attorney's testimony that he discuss the state's offer with petitioner.

Although the finding that ineffective assistance of counsel has not been proven is dispositive of plaintiff's claim concerning plea negotiations, it does not appear that the second prong of the Strickland standard has been met.

In Lafler v. Cooper, 132 S.Ct. 1376, 5, 182 L.Ed.2d 398 (2012), decided the same day as Frey v. Missouri, because of the admitted inefficiency of counsel the State's offer was not communicated to the respondent who then went to trial.   After conviction, a sentence longer than the State's offer was imposed.   In such a situation, the Supreme Court set forth the Strickland prejudice standard as:

In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in the light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offerer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

In this case there is nothing to indicate that petitioner would have accepted the State's offer.

2.

In Count two of the petition, petitioner claims that he is actually innocent of the offenses for which he was convicted.   The standard which a petitioner must prove in order to establish actual innocence is set forth in Miller v. Commissioner of Correction, 242 Conn. 745, 791 (1997) as:

First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted.   Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom ․ no reasonable fact finder would find the petitioner guilty.

In furtherance of his claim of actual innocence, petitioner has alleged that his attorney failed to investigate and adequately develop or discover incentives paid or promises made to the state's witnesses in return for their perjured testimony.   There was evidence that some of the teenagers had problems with the criminal justice system and that Porter had matters pending in the same court.   No evidence, however, was submitted to indicate that any of the state's witnesses had received incentives or had been paid or promised anything in return for their testimony.   There is nothing to indicate that any of the witnesses committed perjury in their trial testimony.

Petitioner also alleged in the second count that his attorney should have discovered evidence of willful misconduct that would have led to dismissal of the charges.   This has not been proven.

In his appeal to the Appellate Court, petitioner claimed that the evidence against him was insufficient to sustain his conviction.   The Appellate Court, however, concluded that the evidence was sufficient to sustain petitioner's conviction.   In reaching this conclusion, the Appellate Court reviewed the evidence of the three eye witnesses who positively identified petitioner.

Petitioner now claims that the testimony of the eye witnesses, particularly that of Tetreault and the other teenagers who confronted the robber within minutes after the robbery was so tainted as to be unworthy of belief.   Underlying this claim is evidence of ill will harbored by petitioner's stepdaughters against him.   This animosity arose out of conflicting claims over the estate and life insurance policies of petitioner's deceased wife, the mother of the stepdaughters.

There was testimony to indicate that Roger Tetreault and possibly some of the other teenage witnesses knew the stepdaughters but there was no evidence of any close relationship.   There was no evidence which would support a conclusion that the testimony of any witness was affected by any connection to petitioner's stepdaughters.

Petitioner has also argued that the eye witness identification of the Tetreault, Porter and Mack was so unreliable and unworthy of belief as to render this conviction invalid.   This claim, however, was fully addressed by the Appellate Court in determining that the evidence was sufficient for conviction.  State v. Hall, supra, 120 Conn.App. 197.   Evidence at the habeas hearing was not sufficient to undermine confidence in the eye witness identifications.

Taking into account, both the evidence at the original criminal trial and the evidence produced at the habeas hearing, petitioner has failed to sustain the burden of proof required to prove actual innocence.

IV

Conclusion

Petitioner has proven that his trial attorney was deficient in failing to object to certain evidence and testimony as above noted, but petitioner suffered no actual prejudice as a result of such failures.   It cannot be found that petitioner was deprived of a fair trial.

Petitioner has failed to prove that his attorney was inefficient in failing to adequately advise him concerning the plea offer of the state's attorney as alleged.

Petitioner's attorney provided ineffective assistance in not properly advising petitioner concerning sentence review and in failure to file the application within the time allowed by statute.   Petitioner suffered prejudice as a result of such failure in that he was denied a hearing before the sentence review division.

Accordingly, petitioner's right to sentence review is reinstated and petitioner may within thirty days from the date of receipt of this decision file an application for sentence review.

All other claims are dismissed.

Joseph J. Purtill, JTR

FOOTNOTES

FN1. At the time of trial, without objection, petitioner amended the petition to set forth the allegations concerning the failure to submit a sentence review application and to advise petitioner concerning the State's plea offer..  FN1. At the time of trial, without objection, petitioner amended the petition to set forth the allegations concerning the failure to submit a sentence review application and to advise petitioner concerning the State's plea offer.

Purtill, Joseph J., J.T.R.