235944 v. Warden (2013)

MEMORANDUM OF DECISION

On October 15, 2005, the petitioner, Rufus Spearman, filed a petition for a writ of habeas corpus, which was amended on July 19, 2010.   The petitioner claims in count one that he was denied his right to due process in violation of the fifth, sixth and fourteenth amendments of the United States constitution and article first, § 8, of the constitution of Connecticut, as well as in counts two and three that he was denied the effective assistance of trial defense counsel in violation of the sixth and fourteenth amendments of the United States constitution and article first, § 8, of the constitution of Connecticut.   Specifically, the petitioner claims in count one that the state failed to disclose exculpatory and impeachment evidence regarding Katherine Hutchings.   In counts two and three, the petitioner claims that trial defense counsel, Michael Dolan, failed to impeach Katherine Hutchings with the information referenced in count one and that he failed to present several witnesses in support of an alibi defense.   For the reasons stated more fully below, the petition is denied.

The matter came to trial on October 1, 2010, May 22, 2012, June 22, 2012, and July 10, 2012, although no testimony was presented on May 22, 2012.   The court heard testimony from Attorney Dolan;  Jashon Spearman;  Stacey Spearman;  Shane Hawkins;  the petitioner;  and Yvalesse Nelson.¹  The petitioner entered into evidence numerous documents, primarily consisting of transcripts, copies of pleadings filed in the underlying criminal case, copies of police reports and photographs.   The respondent proffered a transcript and two copies of pleadings filed in the underlying criminal case.

Upon completion of evidence on July 10, 2012, the respondent made, in accordance with Practice Book § 15–8, an oral motion to dismiss counts one and two for failure to make out a prima facie case, to which the petitioner objected.   The parties presented their respective arguments and the court, based on the respondent's arguments, granted the motion to dismiss, leaving only count three to be addressed on the merits.   Post-trial briefs were ordered, subject to the availability of all transcripts, and both the petitioner and the respondent filed post-trial briefs on April 15, 2013.

The court has reviewed all of the testimony and evidence and makes the following findings of fact.

FINDINGS OF FACT

1. The petitioner was the defendant in a criminal case in the judicial district of New Haven under docket number CR97–0450314.   He was charged with one count of arson in the first degree in violation of General Statutes §§ 53a–8 and 53a–111(a)(2), one count of arson in the first degree in violation of General Statutes §§ 53a–8 and 53a–111(a)(4), and one count of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a–48 and 53a–111(a)(4).   The petitioner and a co-defendant, Terrance Newton, together proceeded to trial.

2. As stated by the Appellate Court, the jury could reasonably have found the following facts underlying the offense:  “On the morning of October 23, 1996, a fire occurred at a three family home located at 16 Clover Place in New Haven as a result of arson.   Earlier that morning, Katherine Hutchings was walking to a store and witnessed the [petitioner] with Terrance Newton walking toward the area located between 16 and 18 Clover Place.   The two men were carrying a large object with a handle that resembled a bucket or jug.   Hutchings called out to the [petitioner] and Newton as they went toward the back of the houses to ask them why they were up so early.   She continued walking when they did not respond.

3. “While walking home from the store, Hutchings heard a ‘big boom,’ and when she turned the corner she saw that the house at 16 Clover Place was on fire.   She also saw the [petitioner] and Newton on Clover Place running toward Truman Street.   Newton was wearing a coat that was on fire.   Hutchings saw Newton drop the coat onto the ground as he ran.

4. “Edith Hunter, who lived at 18 Clover Place, also heard a loud sound that she described as ‘a big boom.’   Hunter ran to her front porch and saw Newton stumbling and running from the porch of the house that was on fire wearing or carrying a smoldering coat.   Although Hunter did not see the [petitioner] running from the house, she did see the two men together that morning and she saw the [petitioner] on Clover Place after the fire started, but before the fire department arrived.

5. “At approximately 7:45 a.m., Napoleon Gunn, an off-duty firefighter, noticed smoke coming from 16 Clover Place.   Gunn shouted to a passerby to call 911 as he attempted to enter the burning house.   The New Haven fire department responded to the fire immediately.   There was a tremendous volume of fire, which began to ignite the Hunter's home next door.   Lieutenant James Robinson testified that the volume of the fire in such a short period of time indicated that it was the work of an arsonist.

6. “Lieutenant Thomas Heinz and two firefighters went into the burning house equipped with bottled oxygen and air masks.   Heinz testified that even through his oxygen mask, he could detect a strong odor of gasoline in the house.   The men made their way up to the third floor where a firefighter fell through the floor that had been weakened by the fire.   He was trapped momentarily until the other firefighters eventually pulled him from the hole in the floor.   The firefighters then were forced to retreat from the third floor.   Heinz also testified that the use of an accelerant like gasoline increases the risk posed to firefighters because it accelerates the rate of burn, causes floors to weaken more quickly when poured onto them, and causes the flames to explode and flare when hit with water.

7. “New Haven Fire Marshal Frank Dellamura also responded to the fire.   He discovered four or five areas in 16 Clover Place where gasoline had been poured but did not ignite.   Additionally, in three rooms on the first floor, Dellamura found six or seven plastic milk containers that were partially melted with scorch marks near each of them.   Dellamura opined that the fire was the result of an arsonist who had attempted to cause an explosion and to burn the house down.   Dellamura also opined that because the fire originated in several areas, it must have been set by more than one person.”  State v. Spearman, 58 Conn.App. 467, 468–70, 754 A.2d 802 (2000).

8. The petitioner was represented by Attorney Michael Dolan during his criminal trial.

9. After the jury returned guilty verdicts on all three counts against the petitioner, as well as all counts against Newton, the court, Fracasse, J., sentenced the petitioner to a total effective sentence of ten years to serve, consecutive to any sentences then being served.

10. The petitioner appealed the judgment of conviction and “claim[ed] that (1) the evidence at trial was insufficient to support his conviction for first degree arson or conspiracy to commit arson, (2) his right to confront a state's witness was denied in violation of the sixth amendment to the United States constitution and (3) the court abused its discretion in admitting consciousness of guilt evidence.”  Id., pg. 468.   The Appellate Court affirmed the trial court's judgment.

11. Additional facts will be discussed as needed.

DISCUSSION

The petitioner's amended petition alleges in count three that Attorney Dolan rendered ineffective assistance of counsel by not disclosing alibi witnesses and not presenting an alibi defense.   In support thereof the petitioner further alleges that at the time of the criminal trial, there was discoverable evidence that the petitioner had an alibi, that counsel was aware of the petitioner's alibi and that counsel was or should have been aware that several witnesses, including Yvalesse Spearman, Tracy Spearman, Rayshawn Spearman, Rayshawn Spearman, Jr., Shane Hawkins and Joan Hallaums, could testify in support of the petitioner's alibi.

“A claim of ineffective assistance of counsel ‘is governed by the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ․ For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different.’  (Citation omitted;  internal quotation marks omitted.)   McClendon v. Commissioner of Correction, 93 Conn.App. 228, 230, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).”  Vasquez v. Commissioner of Correction, 107 Conn.App. 181, 184–85, 944 A.2d 429 (2008).

“Furthermore, for any ineffective assistance claim, [courts] also are cognizant that the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances ․ Judicial scrutiny of counsel's performance must be highly deferential ․ 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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)”  Edwards v. Commissioner of Correction, 141 Conn.App. 430, 438–39 (2013), citing and quoting Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 395, 966 A.2d 780 (2009).

“ ‘[O]ne cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence.’  (Internal quotation marks omitted.)   Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 771, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008).  ‘The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.’  (Internal quotation marks omitted.)  Tatum v. Commissioner of Correction, 66 Conn.App. 61, 66, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001).”  Morant v. Commissioner of Correction, 117 Conn.App. 279, 303, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

“The United States Supreme Court has cautioned that ‘[t]he relevant question is not whether counsel's choices were strategic, but whether they were reasonable.’  Roe v. Flores–Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000);  see also Wiggins v. Smith, 539 U.S. 510, 526, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (deference inappropriate when counsel's decisions are product of inattention rather than reasoned strategic judgment);  Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir.2006) (‘[a]s a general rule, a habeas petitioner will be able to demonstrate that trial counsel's decisions were objectively unreasonable only if there [was] no ․ tactical justification for the course taken’ [internal quotation marks omitted] ), cert. denied, 549 U.S. 1257, 127 S.Ct. 1383, 167 L.Ed.2d 168 (2007);  Eze v. Senkowski, 321 F.3d 110, 129 (2d Cir.2003) (‘the decision not to call a witness must be grounded in some strategy that advances the client's interests').”  Vasquez v. Commissioner of Correction, supra, 107 Conn.App. 186–87.

Attorney Dolan testified in the present matter that the petitioner told him that he did not commit the crimes he was charged with and that he was asleep across the street from where the fire occurred.   Attorney Dolan utilized a private investigator, Daniel Blackman, a retired New Haven police officer, who interviewed eyewitnesses and potential alibi witnesses, took statements and prepared a report of his investigation.   The potential alibi witnesses were family members of the petitioner.   Attorney Dolan testified that he met with some or all of these potential alibi witnesses and found them to be credible.   The defense strategy eventually formulated by Attorney Dolan focused on showing that Ms. Hutchings, a frequent police informant whose statement to the police was the sole link connecting the petitioner to the arson, was concocting a story to gain good will with the police and obtain some financial benefit.²  The trial strategy did not exclude calling alibi witnesses and, therefore, Attorney Dolan filed a notice of intention to offer an alibi defense that disclosed the petitioner was at 11 Clover Place, the Spearman residence across the street from 16 Clover Place, where the arson occurred, at the time of the alleged offenses.³

Attorney Dolan, as well as counsel for co-defendant Newton, effectively utilized cross examination to bring out and highlight inconsistencies between Ms. Hutchings' trial testimony and her written statement to the police.   Attorney Dolan indicated that he did not call any of the petitioner's family members as witnesses because Ms. Hutchings had not testified well.   Instead of putting on separate versions of events (i.e., the state's versus the petitioner's), Attorney Dolan thought it more prudent to hold the state to its burden of proof and attack the credibility of the sole witness linking the petitioner to the offenses.   Attorney Dolan also took into consideration the good cross examination skills of the prosecuting attorney and that the petitioner's witnesses were family members who, although he found them credible and anticipated them placing the petitioner in their residence after the fire was underway across the street,⁴ could not provide an alibi for the time period in which the fire was set and started aside from the petitioner being asleep in his room.   Thus, concern for family members' bias, the very close proximity of the petitioner's residence to the crime scene, and the inability of family members to provide a firm alibi led Attorney Dolan to conclude it was strategically better to not open the door to cross-examination that highlighted the aforementioned concerns.   Thus, according to Attorney Dolan, he made the decision after the state rested to not call the petitioner's family members as witnesses.⁵

The first witness presented by the petitioner in support of his claimed alibi defense was Jashon Spearman, one of the petitioner's uncles.   Jashon Spearman testified that he was in the bathroom getting ready for work, heard an explosion, and about one minute later exited the bathroom and saw the petitioner coming out of his room.   The petitioner looked as though he had just woken up and was wearing clothing that one would sleep in (e.g., shorts or long johns).   According to Jashon Spearman, Yvalesse Nelson was downstairs and was calling for the petitioner to move the car.   Jason Spearman testified that he saw the petitioner run to get the car keys and then go outside to move the car, which he identified as belonging to his brother, Stacey Spearman.   Jashon Spearman then went to the upstairs living room window, looked outside to view the fire and later went downstairs.

Stacey Spearman, another of the petitioner's uncles, was the second family member to testify before this court in support of the petitioner's claimed alibi.   Stacey Spearman testified that he was in the family room located in the basement when he heard his niece, Yvalesse Nelson, yelling.   He then went upstairs, saw the fire across the street and heard Yvalesse Nelson tell the petitioner to move the car.   According to Stacey Spearman, he saw the petitioner come downstairs after he himself had come up from the basement.   On cross-examination Stacey Spearman indicated that he did not go upstairs for several minutes, perhaps as much as seven minutes, before he went to the first floor to look out the window.

The next potential alibi witness was Shane Hawkins, one of the petitioner's cousins.   Hawkins testified that he was in the basement when he heard Yvalesse Nelson scream and yell that there had been an explosion and for his uncle, Stacey Spearman, to move his car.   Hawkins was aware that the petitioner had used Stacey Spearman's car the night before and, because Yvalesse Nelson did not know that the petitioner had used the car the previous night and still had the keys, darted upstairs to let the petitioner know to move the car.   According to Hawkins, he went up to the first floor and to the outside door, which he said was unlocked, that led upstairs to the second floor.   Hawkins went upstairs and saw the petitioner, who appeared sleepy, come out of his room, but did not see his uncle Jashon Spearman.   Hawkins told the petitioner that he needed to move the car.   The petitioner found the keys and went downstairs, and Hawkins also went downstairs and opened the gates so that the petitioner could pull the car into the driveway.

The petitioner testified next that he was asleep in his upstairs bedroom on the morning of the fire.   According to the petitioner, at approximately 8 a.m. he heard a noise, which he described as sounding like an explosion and thought it was his television set that he had left on all night, and which prompted him to reach for the remote and turn off the television set.   The petitioner heard someone yelling his name and for him to move his grandmother's car,⁶ which he had used the night before and thus still had the keys, and that was parked in front of the house.   He then went to the window, which faced the front of the house, and saw flames coming from the house across the street.   The petitioner further testified that he ran downstairs dressed in whatever he was wearing at the time he jumped out of bed,⁷ got in the car and backed it up off the street into the driveway.   He then stayed on the first floor, inside, and watched the fire and the firefighting efforts with other family members.⁸  The petitioner also testified that he knew Newton's family and some of its members, but not Terrance Newton, and that he knew Katherine Hutchings from her hanging around the neighborhood.   As to discussions with Attorney Dolan about presenting an alibi defense, the petitioner testified that he and counsel discussed presenting an alibi defense and calling alibi witnesses, both prior to trial and after the state rested.   Attorney Dolan, according to the petitioner, informed him that he was not calling alibi witnesses because he thought the state's case was weak.   Lastly, the petitioner acknowledged that he had a physical relationship with a woman who had lived in the house where the fire was set and that she had problems with her roommate who had lived at the same location, had moved out, but returned periodically to retrieve her mail.

The final witness presented by the petitioner was Yvalesse Nelson, formerly Spearman, who also is one of the petitioner's cousins.   Ms. Nelson testified that at about 7:00 a.m. on the day of the offense, she was getting ready for work and looked out the window.   Ms. Nelson then testified that she saw “two males carrying a box, and they were walking down the street.   They were coming from Truman Street;  and they looked pretty suspicious.   I mean, it was 7:00 in the morning.   They were two black males with dark clothing on.   They approached the house across the street.   I seen them because the house is vacant.   And they went up to the second floor, and I seen them pouring something around with their hands;  and then all of a sudden, there was, boom, an explosion.   They started running out.   They ran down Clover Place onto Truman Street;  and when he was running, his coat got caught on the fence.”   Habeas Trial Transcript (July 10, 2012), pg. 4. Ms. Nelson indicated that she could not identify the two males and that neither was the petitioner.   Ms. Nelson further testified that she went downstairs to let Stacey Spearman know that his car needed to be moved.   She described a brief conversation about the car and the keys being in the petitioner's possession, which led her to go upstairs and bang on the outside door, which she indicated was locked, that led to the upstairs to wake him up.   The petitioner came downstairs appearing sleepy, went outside and moved the car into the gated driveway after Stacey Spearman opened the gates.

The testimony presented to this court by the petitioner and the other potential alibi witnesses, whether viewed individually or collectively, does not undermine this court's confidence in the outcome of the criminal trial.   While this court could make credibility assessments that work against the petitioner, or consider the potential or actual bias due to family members and the petitioner himself testifying in support of his alibi, the court will engage in neither.   Even if this court assumes these six witnesses to be credible and that they have no bias whatsoever, the contradictions and inconsistencies between the various renditions of the events and activities vindicates Attorney Dolan's concerns about rigorous cross examination by an experienced and effective prosecutor.   Attorney Dolan's concerns about these inconsistencies contained within the petitioner's family member's rendition of events were well founded.   Their versions of events would have done little, if anything, to undermine the state's case, as none of the petitioner's alibi witnesses can account for his whereabouts, aside from presumptively being asleep in bed, while the fire was being set, leaving open the opportunity for the petitioner to have helped set the fire, run across the street and go upstairs before the explosion and ensuing fire.

After meticulously reviewing the underlying record as now supplemented by the evidence in the instant habeas, the court agrees with Attorney Dolan's assessment that the focus of his defense efforts was better concentrated on attacking the credibility of Ms. Hutchings and showing her potential financial gain for cooperating yet again with the police.   The petitioner has not shown that the testimony presented to this court would have been helpful in establishing an alibi defense sufficient to raise reasonable doubt in the jury's minds.   In other words, this court concludes that Attorney Dolan's strategy and the decisions made in furtherance thereof were reasonable in light of all the circumstances.   The petitioner has not undermined this court's confidence in the outcome of the criminal jury trial and has not shown, therefore, that he was prejudiced.

CONCLUSION

Based upon the foregoing, the court concludes that the petitioner has failed to prove that Attorney Dolan rendered ineffective assistance of counsel.   Accordingly, judgment shall enter denying the petition for a writ of habeas corpus.   Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.

It is so ordered.

T. Santos, J.

FOOTNOTES

FN1. The court adopts the parties' agreed upon spelling.   See Respondent's Post–Trial Brief, pg. 7 n.1..  FN1. The court adopts the parties' agreed upon spelling.   See Respondent's Post–Trial Brief, pg. 7 n.1.

FN2. Attorney Lawrence Hopkins, who represented co-defendant Terrance Newton, argued a motion for a new trial shortly before Newton and the petitioner were sentenced.   The transcript indicates that Exhibit A to the motion for a new trial was a statement by a Priscilla Lassy, who indicated in that statement that Ms. Hutchings had told her that her trial testimony was fabricated and motivated by potentially collecting the twenty-five thousand dollar ($25,000.00) reward offered to resolve the arson case.   Respondent's Exhibit A (Transcript, Feb. 27, 1998), pgs. 2–3.   The motion for a new trial was denied and the matter proceeded to sentencing.   The petitioner was no longer represented by Attorney Dolan at sentencing but instead by Attorney Norman Pattis, who also was petitioner's appellate counsel..  FN2. Attorney Lawrence Hopkins, who represented co-defendant Terrance Newton, argued a motion for a new trial shortly before Newton and the petitioner were sentenced.   The transcript indicates that Exhibit A to the motion for a new trial was a statement by a Priscilla Lassy, who indicated in that statement that Ms. Hutchings had told her that her trial testimony was fabricated and motivated by potentially collecting the twenty-five thousand dollar ($25,000.00) reward offered to resolve the arson case.   Respondent's Exhibit A (Transcript, Feb. 27, 1998), pgs. 2–3.   The motion for a new trial was denied and the matter proceeded to sentencing.   The petitioner was no longer represented by Attorney Dolan at sentencing but instead by Attorney Norman Pattis, who also was petitioner's appellate counsel.

FN3. Petitioner's Exhibit 18.   The notice identifies Jashon Spearman, Ydalesse Spearman, Edith Hunter, Jay Hunter and Shane Hawkins as alibi witnesses.   All five are also disclosed on the petitioner's witness list.   Respondent's Exhibit B. The witness list also lists Josh Spearman, Carl Babb, MaryEllen Gunn, Stacey Spearman, Daniel Blackmon and Detective Joseph Green..  FN3. Petitioner's Exhibit 18.   The notice identifies Jashon Spearman, Ydalesse Spearman, Edith Hunter, Jay Hunter and Shane Hawkins as alibi witnesses.   All five are also disclosed on the petitioner's witness list.   Respondent's Exhibit B. The witness list also lists Josh Spearman, Carl Babb, MaryEllen Gunn, Stacey Spearman, Daniel Blackmon and Detective Joseph Green.

FN4. See also, infra, pg. 11 n.8, discussing testimony by Edith Hunter at the criminal trial..  FN4. See also, infra, pg. 11 n.8, discussing testimony by Edith Hunter at the criminal trial.

FN5. Attorney Dolan provided the following rationale:  “[It was] my fear ․ that the jurors would potentially compare the two—the two versions and see maybe Mr. Spearman's family had a greater motive to protect him and that—and Katherine—and compare that [version to] Katherine Hutchins [sic] motive for a couple hundred dollars and say, well, the Spearman's have a greater motive and maybe water down the proof beyond a reasonable doubt standard and not hold the state to that—to that high standard, so I was—I made—you know made the decision that it was—that we had done enough on cross-examination and didn't want to take that risk of—to having the jury water down the standard of proof beyond a reasonable doubt.   And that was only made after—after the state rested.”   Habeas Trial Transcript (Oct. 1, 2010), pg. 41.   Attorney Dolan reiterated these concerns and his decision making process on cross examination.  Id., pg. 52..  FN5. Attorney Dolan provided the following rationale:  “[It was] my fear ․ that the jurors would potentially compare the two—the two versions and see maybe Mr. Spearman's family had a greater motive to protect him and that—and Katherine—and compare that [version to] Katherine Hutchins [sic] motive for a couple hundred dollars and say, well, the Spearman's have a greater motive and maybe water down the proof beyond a reasonable doubt standard and not hold the state to that—to that high standard, so I was—I made—you know made the decision that it was—that we had done enough on cross-examination and didn't want to take that risk of—to having the jury water down the standard of proof beyond a reasonable doubt.   And that was only made after—after the state rested.”   Habeas Trial Transcript (Oct. 1, 2010), pg. 41.   Attorney Dolan reiterated these concerns and his decision making process on cross examination.  Id., pg. 52.

FN6. The petitioner testified it was his grandmother's car.   Other witnesses testified the car belonged to Stacey Spearman..  FN6. The petitioner testified it was his grandmother's car.   Other witnesses testified the car belonged to Stacey Spearman.

FN7. “Probably pajama pants or sweatpants or something.   I don't remember—gym shorts or something.”   Habeas Trial Transcript (June 22, 2012), pg. 13..  FN7. “Probably pajama pants or sweatpants or something.   I don't remember—gym shorts or something.”   Habeas Trial Transcript (June 22, 2012), pg. 13.

FN8. Edith Hunter, who lived across the street from the Spearman residence in a building adjacent to the one that burned down, testified before the jury that she saw the petitioner for the first time the morning of the fire when he came out of the house to move the car.   Petitioner's Exhibit 2 (Tr. Nov. 20, 1997), pg. 106.   Thus, the jury heard testimony from a non-family member about the petitioner's location shortly after the fire began..  FN8. Edith Hunter, who lived across the street from the Spearman residence in a building adjacent to the one that burned down, testified before the jury that she saw the petitioner for the first time the morning of the fire when he came out of the house to move the car.   Petitioner's Exhibit 2 (Tr. Nov. 20, 1997), pg. 106.   Thus, the jury heard testimony from a non-family member about the petitioner's location shortly after the fire began.

Santos, Thelma A., J.