329025 v. Warden (2013)

MEMORANDUM OF DECISION

The petitioner, Solomon Boyd, brings this petition for a writ of habeas corpus claiming that his trial attorney was ineffective, thereby violating his state and constitutional rights.   He seeks an order of this court vacating his conviction.   The court finds the issues for the respondent and denies the petition.

After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a–54a.   The trial court sentenced the petitioner to fifty years imprisonment.   The jury could reasonably have found the following facts:

In 2001 and early 2002, the defendant lived in Mamaroneck, New York, with his girlfriend, Melissa Gagliardi.   The defendant was a drug dealer.   Carlos Barradas, the victim, spent a large amount of time at the defendant's apartment, where he helped the defendant with his drug business.   In return, the defendant provided drugs to the victim.   The victim also purchased drugs from the defendant on an almost daily basis.

In early January 2002, a gold bracelet belonging to the defendant was missing from the apartment.   The defendant believed that the victim had stolen the bracelet and became upset with him.   On the night of January, 16, 2002, at approximately 10 p.m., the defendant told Gagliardi that he and the victim were going to go to Mount Vernon, New York, to buy drugs.   The defendant and the victim took the victim's car.   Instead of driving to Mount Vernon, however, they drove to Norwalk.   They arrived at an area near the intersection of Merritt Street and Chestnut Street at approximately 11:48 p.m. The defendant then shot the victim with a .45 caliber semiautomatic gun.   The victim exited from the car and tried to flee, but a fence blocked his way.   The defendant, who also had exited the car, shot the victim again.   The victim then entered and exited the car again in an attempt to escape from the defendant.   The defendant ultimately shot the victim several times in front of the car, where the victim fell.   Police arrived at the scene within minutes of the shooting and found the victim still alive.   They took him to Norwalk Hospital where he was pronounced dead at 12:15 a.m.

Later that morning, when the defendant arrived back at his apartment in Mamaroneck, he was wearing a woman's sweatshirt.   Gagliardi asked him where he had acquired it, and the defendant told her that he had needed to change his clothes in order to get rid of ‘evidence’ or ‘gun's powder.’   At some point, Gagliardi asked the defendant where the victim was and the defendant told her that he had killed him by shooting him multiple times.   He also indicated that his cousin, Kevin Thomas, had been present during the murder.

State v. Boyd, 295 Conn. 707, 711–12, 992 A.2d 1071 (2010), cert. denied, 131 S.Ct. 1474, 179 L.Ed.2d 314 (2011).

The petitioner appealed his conviction to the Supreme Court, which affirmed it.  State v. Boyd, supra, 295 Conn. 707.

On August 30, 2010, the petitioner brought this petition for a writ of habeas corpus, claiming that his trial counsel, Attorney Susan Hankins, was ineffective in that she failed to:

1.  Adequately investigate the state's evidence concerning cell phone operations.

2. Adequately investigate the state's evidence concerning the accuracy of cell phone tracking of locations of the phone being tracked;

3.  Present testimony which would have served to establish that he was not, in fact, where the state's presentation of evidence placed him at the time of the crime;

4.  Subpoena the appropriate phone bill from the carrier serving the cell phone seized by the police;

5.  Properly cross-examine the police relative to post-seizure operation of the phone.

A trial was held in this case on January 14, 2013, at which the parties presented evidence.   The petitioner called three witnesses;  himself, Attorney Hankins and John Minor, an expert in cell phone tracking.   Both parties submitted exhibits.   The petitioner filed a post-trial brief and the respondent did not file a brief.

As to the third claim, the petitioner acknowledged that he did not pursue this claim at trial because Minor was unable to opine as to a specific location for the petitioner on the night of the offense.   As a result, the court denied this claim for lack of proof.

The facts of the case will be discussed below in relation to the issues raised as necessary.

DISCUSSION

“A criminal defendant's right to the effective assistance of counsel ․ is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution ․ To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test—articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).”  (Citations omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

To establish a claim of ineffective assistance of trial counsel, the petitioner has the burden to establish 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;  internal quotation marks omitted.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 687.   “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 the [s]ixth [a]mendment.’  “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687.   It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action.   Rather, the 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 the “counsel” guaranteed by the 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, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).

Under the second prong of the test, the prejudice prong, the petitioner must show that “counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.”  (Internal quotation marks omitted.)  Strickland v. Washington, supra, 466 U.S. 687;  Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).

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.   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.

(Citation omitted;  internal quotation marks omitted.)  Id., 689.

Ultimately, “[t]he 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.

The petitioner first claims that trial counsel's conduct was deficient in failing to conduct an adequate investigation into the cell phone evidence, and in particular, failing to consult with an expert witness on these matters to assist her in preparing for and trying the case.

“ ‘The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.’  ․ Tatum v. Commissioner of Correction, 66 Conn.App. 61, 66, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001);  see also Nieves v. Commissioner of Correction, 51 Conn.App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).  ‘The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.’   Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).”  Norton v. Commissioner of Correction, 132 Conn.App. 850, 858–59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).

The court finds that Attorney Hankins's investigation of this case was objectively reasonable under the circumstances of this case.   The petitioner did not deny that he was in possession of the cell phone that was seized from his car.   The state obtained the cell phone records for dates pertinent to the crime, which showed that the petitioner was in the general location of the murder.   Attorney Hankins moved to suppress the cell phone records, but the trial court denied that motion.   The petitioner's appeal of that issue to the Supreme Court was denied.  State v. Boyd, supra, 295 Conn. 707.   Trial counsel also attempted to limit the cell phone evidence by requesting a Porter hearing to determine its admissibility, but the court denied the request.¹

Attorney Hankins met with the petitioner on numerous occasions to prepare for trial, obtained the relevant cell phone records, examined them and discussed the records with the petitioner.   Prior to trial, Attorney Hankins educated herself on cell phone usage, and although she did not engage an expert consultation witness, she was able to consult with the state's witness from Sprint, as well as a representative from a competing cell phone company in order to attempt to understand the process of determining a person's general location in relation to the location of their cell phone calls.   She visited the closest cell phone tower to the murder and examined the location and topography and did not see any major obstructions, such as large buildings.   Based on her own investigation, Attorney Hankins did not believe that she needed an expert witness, particularly because the state did not call one.

Moreover, the cell phone records, while helpful to the state's case, were not the only evidence of the petitioner's guilt.   Other than the petitioner's cell phone records, the state had other corroborating evidence in the form of other witnesses' cell phone records who had communicated with the petitioner on his cell phone on the night of the murder.   Trial counsel was more concerned about the content of those calls, which included inculpatory statements of the petitioner seeking to obtain an alibi for the night of the murder.  State v. Boyd, supra, 295 Conn. 715.

The court did not find the petitioner's expert helpful in this case, and finds that the petitioner has not proven that trial counsel's failure to consult with him or a similar expert witness constituted deficient performance.   See Norton v. Commissioner of Correction, supra, 132 Conn.App. 859 (noting it is petitioner's burden to demonstrate benefit revealed by additional investigation).   Attorney Hankins took the necessary steps, including certain steps suggested by the petitioner's expert, to educate herself on the cell phone evidence and addressed that evidence at trial through cross-examination.   Thus, the court finds that the petitioner has not proven deficient conduct by counsel under Strickland.

Moreover, the petitioner has failed to prove that the failure to consult with a cell phone expert prejudiced the petitioner at trial.   Although the cell phone evidence placed the petitioner within five or six miles of the crime scene, it was his own exculpatory statements to police and to witnesses, as well as other evidence, that provided sufficient evidence of his guilt.   The petitioner's girlfriend, Gagliardi, testified at the criminal trial that the petitioner confessed to her on the morning after the murder that he had killed the victim by shooting him multiple times, and asked that she provide him with an alibi.   Gagliardi further testified that the petitioner suspected that the victim stole his gold bracelet, which showed that the petitioner had a motive to kill the victim.   Thus, it cannot be said that had trial counsel consulted with a cell phone expert, there is a reasonable probability that the outcome of the proceedings would have been different.   See Johnson v. Commissioner of Correction, supra, 285 Conn. 575.

The petitioner's remaining claims are that trial counsel failed to obtain cell phone records of the seized phone made by police after the phone was seized, and without these records, trial counsel could not properly cross-examine and impeach the police witnesses regarding their post-seizure operation of the phone.   Trial counsel testified that she did not obtain the records because the police admitted to making calls and she did not see the relevance of such evidence of calls made on the phone after it was seized.   The court is similarly at a loss to understand the relevance of such calls to the petitioner's case, and in any event, finds that the petitioner has not proved that he was prejudiced by counsel's failure to obtain these records and use them to cross-examine the police witnesses.

“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ․ If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ․ that course should be followed.”  (Internal quotation marks omitted.)  State v. Brown, 279 Conn. 493, 525–26, 903 A.2d 169 (2006);  see also Elsey v. Commissioner of Correction, 126 Conn.App. 144, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011) (“[b]ecause both prongs ․ of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong” [internal quotation marks omitted] ).

CONCLUSION

For the foregoing reasons, the petition is denied.   Judgment may enter for the respondent.

Cobb, J.

FOOTNOTES

FN1. A Porter hearing is held to determine the admissibility of novel scientific methodology pursuant to the test set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589–92, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).   See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998)..  FN1. A Porter hearing is held to determine the admissibility of novel scientific methodology pursuant to the test set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589–92, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).   See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998).

Cobb, Susan Quinn, J.