Angel Llera v. Warden (2013)

MEMORANDUM OF DECISION

I

Statement of the Case

After trial by jury, petitioner was convicted of one count of murder with a firearm, as a principal or an accessory in violation of General Statutes §§ 53a–54a(a) and 53–202a and three counts of assault in the first degree with a firearm as a principal or an accessory, in violation of General Statutes §§ 53a–59(a)(5) and 53–202k.   As a consequence of such conviction, petitioner was sentenced to the custody of the commissioner of correction for a period of 60 years.

Petitioner appealed his conviction to the Appellate Court which confirmed the judgment of the trial court.  State v. Llera, 114 Conn.App. 337 (2009).

Petitioner is now in the custody of respondent serving the sentence imposed.   By his third amended petition filed December 11, 2012, petitioner seeks a writ of habeas corpus claiming that his confinement is illegal in that it resulted from the denial of his constitutional right to effective assistance of trial counsel.   Petitioner has also alleged that his conviction and incarceration were illegal because they were obtained in violation of his state and federal constitutional rights to due process and a fair trial because of prosecutorial impropriety.

II

Facts

The basic facts underlying petitioner's conviction as found by the Appellate Court may be stated as follows:

“In the early morning of April 26, 2006, the defendant and Samuel Walker were at Club Novella in Bridgeport.   Also at Club Novella were Eric Ortiz, Tyrelle Noblin, Timothy White and Angela Tucker.   Noblin testified that he observed the defendant hand a gun to Walker immediately before Walker fired several gunshots.   White, Tucker and Noblin were shot and injured, and Ortiz was shot and killed.   The bullets were fired from the same 9 millimeter, semiautomatic Luger handgun.” ¹

“On April 19, 2006, the Bridgeport police arrested an individual named Roosevelt Jefferson on an unrelated narcotics charge.   Jefferson had spoken with the defendant in the defendant's vehicle two days after the shooting, and he testified against the defendant, hoping to receive leniency when he became eligible for parole.   Jefferson testified that he saw the defendant with a 9 millimeter semiautomatic Luger.²  He also testified that the defendant went everywhere with ‘that type of gun.’  “ While Jefferson was in the car, the defendant removed the clip from the nine millimeter Luger and placed the Luger in a console behind his car radio.   During their conversation, the defendant told Jefferson that he, not Walker, had shot Ortiz in the face with his nine millimeter Luger because of a gang related conflict and that he carried the gun because of an ongoing conflict.   The defendant also told Jefferson that he was going to the housing projects to speak with a female named Smurf, who was spreading rumors about him.”  Id. 339, 340.

The Bridgeport police apprehended the defendant several days later while he was driving his car.   At the time he was apprehended, police found a .40 caliber Glock pistol with an oversized clip in a compartment behind the radio in petitioner's car.   A later search of petitioner's car revealed blood of White and Ortiz.

Attorney Barry Butler, an attorney in the public defender's office, Part A in Bridgeport, was appointed to represent petitioner.   Attorney Butler was experienced in the trial of serious criminal cases.

Samuel Walker was also arrested in connection with the April 26, 2006 shooting at Club Novella.   Against the advice of counsel, petitioner filed a speedy trial motion so that his case went to trial before Mr. Walker's case.³

Petitioner was charged with one count of murder as a principal or accessory and three counts of assault in the first degree with a firearm as a principal or accessory.   A jury election was made as to these charges.   Petitioner was also charged with possession of a pistol without a permit.   This charge was tried to the court.   Petitioner was convicted of the murder and assault charges and acquitted of the possession of a pistol charge.

Additional facts will be stated as necessary.

III

Analysis

In his third amended petition and in his brief, petitioner has raised issues concerning ineffective assistance of counsel and prosecutorial improprieties which must be addressed by the court.

a.

(1) Attorney Butler failed to present exculpatory evidence available to him from Marshall Robinson, the state's firearms expert.

(2) At the hearing on a motion to suppress the search of petitioner's automobile, Attorney Butler failed to call Roosevelt Jefferson, the police informant, so that his credibility might be impeached.

(3) Attorney Butler failed to impeach the testimony of Tyrelle Noblin.

(4) Attorney Butler failed to investigate or call witnesses who could have placed petitioner at home at the time the shootings were alleged to have occurred.

b.

(1) The state's attorney violated petitioner's right to due process of law by prosecutorial impropriety in that he implied, in another case, that the murder weapon could have been a .40 caliber Glock.

Petitioner's brief was filed on April 15, 2013.   Respondent's brief was filed on April 23, 2013.   The court is not bound to consider any claim of law not properly briefed.  Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1998).

a.

Claim of Ineffective Assistance of Trial Counsel

Attorney Barry Butler represented petitioner at trial.   Petitioner has alleged that in representing him, Attorney Butler 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 he receive a new trial.”  Denby v. Commissioner of Correction, 66 Conn.App. 809, 812–13 (2001).

(1)

Petitioner claims attorney Butler was remiss in that he failed to present exculpatory evidence available to him from the state's fire examiner, Marshall Robinson.

At trial, Tyrelle Noblin, the state's only eye witness, testified that he was in the Club Novella at the time of the shooting.   He stated that petitioner and Samuel Walker were also there about six or seven feet away from him.   Noblin testified that he observed petitioner remove a shiny, black handgun from his trousers and handed it to Walker who then fired the weapon causing the death of Ortiz and wounding Noblin and others.

The only eye witness testimony as to the type of weapon used in the shooting was Noblin's description that it was a shiny, black handgun.   Marshall Robinson, a qualified firearms examiner, was called by the State to testify at petitioner's trial.   He testified that the two cartridge cases found at the scene of the shooting were 9 millimeter Luger ammunition.   Mr. Robinson informed the jury that the cartridge cases were 9 millimeter handgun cartridges designed for the Luger handgun originally and in America became known as a “9 millimeter Luger.”   He further stated that the bullets recovered were all fired from the same semiautomatic handgun.   At petitioner's trial, Roosevelt Jefferson was called by the State.   Mr. Jefferson testified that he had known petitioner for a long time and that they had gone to school together and that he saw him in April 2006.   Jefferson stated that he told petitioner he wanted to talk to him about things he had heard about a shooting.   He testified that petitioner said he had an ongoing beef with Eric who was involved with the Outlaw Gang. Jefferson further testified that petitioner told him that he shot Eric in the face, “tried to take his head off.”   He stated that petitioner told him a 9 millimeter “Ruger” was used.   Jefferson observed at the time petitioner had this type of weapon in his waist and that he took it out and placed it inside of the radio console in his car.

On April 19, 2009 Jefferson was arrested by the Bridgeport Police on an unrelated narcotics charge.   While under arrest he volunteered information substantially similar to his later in court testimony.   As a result of the statement, police arrested petitioner and found a .40 caliber Glock pistol in a compartment behind the radio in the car he was driving.

Marshall Robinson, the firearms examiner, was called to testify at the habeas trial.   He stated that the 9 millimeter Luger cartridge designation had nothing to do with the type of pistol in which it could be fired.   Mr. Robinson further stated that the type of cartridge found after the Club Novella shooting could not have been fired from a Luger, a Ruger or a .40 caliber Glock pistol.

In connection with his examination of the bullets and cartridges used at petitioner's criminal trial, Mr. Robinson prepared two criminal investigation reports and four pages of notes.

In his preparation for trial, Attorney Butler reviewed the criminal investigation reports, but he did not interview Mr. Robinson nor did he review his notes.   The reports indicate that the bullets were all fired from the same pistol.   The report dated 06/08/06 states that the 9 millimeter bullet “was fired from a pistol having general rifling characteristics similar to, but not limited to those of the following named manufactured pistols.”   The report then lists fourteen types of pistols.   The list did not include a Ruger.   Mr. Robinson's handwritten notes merely lists a number of types of pistols from which the bullets could have been fired.

It is now claimed that Attorney Butler was inefficient in his representation of petitioner in that he had available to him information that the weapon that fired the shots inside Club Novella could not have been from a 9 millimeter Ruger and he did nothing with this information.   Attorney Butler did establish at trial from Mr. Robinson that the bullets could not have been fired from the .40 caliber Glock the only weapon which petitioner was found in possession of.   He did not, however, bring out that the 9 millimeter bullets could not have been fired from a Ruger the type of pistol Jefferson testified that he saw petitioner in possession of.

The only way by which Attorney Butler could have learned that a 9 millimeter Ruger could not have fired the fatal bullets would have been by interviewing Mr. Robinson.   The investigative reports did not exclude a Ruger.   No reason has been advanced why Attorney Butler should have conducted such an interview or delved further into the matter.   Attorney Butler was attempting to reduce testimony about firearms.

Petitioner is entitled to competent representation.   He is not entitled to perfect representation.   It cannot be found that Attorney Butler's failure to interview Mr. Robinson under the circumstances amounted to ineffective representation.

The trial testimony of the eye witness and the firearms expert informed the jury that the bullets were all fired from a single black, shiny 9 millimeter semiautomatic handgun.   There was no direct testimony as to the type of pistol used.

The only testimony as to the type of pistol was provided by Roosevelt Jefferson.   He testified that petitioner was in possession of a 9 millimeter Ruger, that he went everywhere with it, and that he said it used it to shoot Ortiz.   Attorney Butler concentrated on reducing Jefferson's credibility by bringing out that he was expecting consideration for his assistance in helping the police investigate the Club Novella shootings.

Jefferson's testimony as to what petitioner told him about the shooting was at variance with the testimony of Tyrelle Noblin, a victim and eyewitness.   Jefferson described in detail how petitioner told him that he shot Ortiz.   This was at variance with the eyewitness testimony that Samuel Walker did the actual shooting.   This testimony is consistent with a person attempting to ingratiate himself with the authorities so as to improve his position with the court and probation.

The shooting occurred on April 16, 2006.   On April 20, 2006, four days later, Jefferson gave his statement to the police indicating that petitioner possessed a 9 millimeter Ruger and that he kept it behind the radio in his car.   Later the same day, petitioner was stopped by the police.   The search of his car revealed not a 9 millimeter Ruger, but a .40 caliber Glock behind the radio.   The type of extended magazine described by Jefferson for the Ruger was similar to the type found by the police with the Glock.

Considering the attacks on Jefferson's credibility, and the discrepancies in his testimony, it must be found that petitioner has failed to establish that he suffered any prejudice, or that the outcome of the trial was effected by, Attorney Butler's failure to bring out that the 9 millimeter bullets in question could not have been fired from a Ruger.

(2)

Attorney Butler filed a motion to suppress the search of petitioner's automobile.   At the hearing on his motion, Attorney Butler failed to call the police informant, Roosevelt Jefferson.   The claim is that Jefferson could have been considered a disinterested person with considerable credibility by the judge hearing the motion.   If Jefferson had been called to testify, his personal interest in providing the information that resulted in the search could have been developed and his credibility impeached.   It is claimed that this failure on the part of Attorney Butler amounted to ineffective assistance of counsel.

In the memorandum of decision on the motion to suppress, the judge (Comerford, J.) stated that Mr. Jefferson could be found to be reliable because his statement was based upon personal knowledge and the information was corroborated by police citing State v. Anderson, 24 Conn.App. 438, 441, cert. denied 219 Conn. 903 (1991).   The judge also stated that from the information supplied it could be inferred that the informant was a close associate of the defendant and that this further supported the informant's credibility.   It was also noted by the judge that Jefferson's statements were entitled to greater weight because they were corroborated by evidence independently gathered by the police.

At the suppression hearing, the state called Detective Todd Toth. The detective testified that he went to the Club Novella in the early morning hours of April 16, 2006, shortly after the shooting and he was assigned to investigate the matter.

In furtherance of this investigation, on April 20, 2006, he met with Roosevelt Jefferson, who was then being interviewed by other police officers in connection with a narcotics charge.   Jefferson informed the detective that he had information pertaining to the shooting at Club Novella and the person responsible for it.

In his statement to Detective Toth, Jefferson stated that petitioner told him that he shot Ortiz in the mouth.   The detective testified that his investigation revealed that Ortiz had, in fact, been shot through the mouth.   Jefferson also described the vehicle which petitioner had been driving in which he secreted a pistol.   The police investigation confirmed that petitioner's mother was the registered owner of this vehicle.

As the judge noted, this independently gathered information gave weight to Jefferson's statement.   It is, therefore, doubtful that, if Jefferson had been called to testify, the motion to suppress would have been granted.

Attorney Gary Mastronardi, who represented petitioner in his appeal, testified that it would have been important to examine Mr. Jefferson at the hearing because the record for appeal was lacking in this regard.   The sole issue in the appeal was whether it was error for the trial court to have permitted testimony about the Glock pistol seized in the search of petitioner's car.   The Appellate Court agreed with Attorney Mastronardi and found that it was error for the trial court to have admitted such testimony.   It is, therefore, difficult to understand how petitioner suffered any prejudice in his appeal since the Appellate Court agreed that it was error for the trial court to have admitted evidence of the seizure of the pistol.   Attorney Mastronardi testified that the search led not only to the Glock, but also to the discovery of the victim's blood on petitioner's car.   This placed the vehicle at the scene of the shooting.   A review of the judge's memorandum of decision on the motion to suppress, however, indicates that the judge found two separate searches.

Petitioner had been driving with a suspended license, and the car had been impounded.   The second search, which revealed the blood, was found to have been conducted with the consent of the true owner, Lucy Montoya, petitioner's mother.

Petitioner has failed to prove that it was ineffective assistance of counsel for Attorney Butler not to have called Roosevelt Jefferson to testify at the suppression hearing so that his credibility could have been impeached.   Petitioner suffered no prejudice as a result of Jefferson not being called to testify.

(3)

The testimony of Tyrelle Noblin was essential to the state's case against petitioner.   It is now claimed that Attorney Butler was remiss in failing to properly impeach the testimony of Mr. Noblin.

Mr. Noblin gave two statements to the police.   In the first statement made on April 17, 2006, shortly after the shooting, Mr. Noblin denied any knowledge as to who fired the shots.   He gave another statement to the police on May 9, 2006, in which he stated that he saw petitioner pass an object to Walker who pointed it in his direction and fired.   In his direct examination at trial, the state brought out both of these statements.   In cross examination, Attorney Butler confronted Noblin with the inconsistencies in the two statements.

On May 3, 2006, Noblin called Sergeant Verillo and asked if petitioner was under arrest for the Ortiz homicide or just the gun charge.   He stated that Sam Walker had been going around bragging that he gave Angel the gun with which Angel shot Eric. Noblin stated that the police were going to have a hard time solving this crime.

Sergeant Verillo's report of Noblin's call was not utilized by Attorney Butler in his cross examination of Noblin.   Attorney Kestenband, plaintiff's expert, testified that Attorney Butler was remiss in not confronting Noblin with his statement to Sergeant Verillo because the information was inconsistent with Noblin's trial testimony that petitioner gave the object to Walker who did the shooting.

The difficulty with this claim, however, is that the information given to Sergeant Verillo involved a statement by Walker heard by Noblin.   The statement is not consistent with Noblin's subsequent statement as to what he observed.   Noblin could have been asked to explain the difference, but it is doubtful that it would have had a serious effect on Noblin's credibility.

Attorney Kestenband stated that Noblin could have been asked why he did not contradict Walker's version of the shooting.   From his silence, it is claimed his credibility could have been negatively affected.

In the call to Sergeant Verillo, Noblin asked if petitioner had been arrested for the homicide or the less serious gun charge.   He did not ask if Mr. Walker, who Noblin later identified as the shooter, had been arrested.   Attorney Kestenband stated that this should have been brought out because Noblin had expressed fear of petitioner and not Walker who he stated did the actual shooting.   It is difficult to understand how opening up the question as to why Noblin was more afraid of petitioner than Walker would have helped the defense.

In his call to Sergeant Verillo, Mr. Noblin stated that “we (the police) were going to have a hard time solving this case ․” Attorney Kestenband opined that this statement by Mr. Noblin indicated a motive to give false testimony.   In other words, the difficulty of the case presented him with an incentive to create the information which would solve the case.   This, however, is pure speculation.

No doubt Sergeant Verillo's memo concerning the call from Noblin could have been used for cross examination.   It is extremely doubtful that Attorney Butler's failure to do so had any effect on the outcome of the trial.   Some points could have been made but Attorney Butler's cross examination, based upon Noblin's consumption of alcohol and the ability to observe petitioner and Walker, must be considered more effective.   Also, the memo was not Noblin's statement but a memorandum based upon a telephone call from Noblin.  “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.”   Likewise, “there is no expectation that competent counsel will be a flawless strategist or tactician ․” The standard is one of reasonableness, and “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct ․” Williams v. Commissioner of Correction, 142 Conn.App. 744, 753 (2013).  (Internal citations omitted;  internal quotation marks omitted.)

(4)

It is claimed that Attorney Butler was remiss in that he failed to investigate or call witnesses who could have placed petitioner at home at the time the shootings at Club Novella were alleged to have occurred.

The evidence indicates that the shootings at Club Novella took place around 1:45 a.m. on Sunday, April 16, 2006.   At that time petitioner was living at 60 Cedar Street in Bridgeport with his girlfriend, Takeena Jennings, and his brother, Wilfredo Hostis, Jr.

At the habeas trial, petitioner testified that on April 15, 2006, he left work in Wilton, Connecticut and took his car to be worked on by his uncle.   He then picked up Ms. Jennings.   The two went to a MacDonalds and arrived home around 9:30 to 10:00 p.m. His brother arrived home around 12:00 a.m. and the two played X–Box.

About that time, he received a telephone call from Samuel Walker.   Petitioner testified that Walker wanted to borrow petitioner's car so that he could go to the Clubs.   He testified that in response to Mr. Walker's call he went outside and gave him the keys to the car.   He then went back to bed with Ms. Jennings.⁴

Plaintiff's testimony that he gave the keys for the car to Walker and allowed him to take the car is, or would have been, extremely important evidence at petitioner's trial since it placed the car at the scene of the crime but exonerated him.   The fact that he never gave this vital information to Attorney Butler affects petitioner's credibility.   Petitioner testified that he did not give this information to his attorney during the trial because he was naive.   This is not believable.

Attorney Butler was aware that Hostis and Jennings were in petitioner's home at the time of the shooting and that they could have been called as witnesses for the defense.   Petitioner claims that by not calling Hostis and Jennings as alibi witnesses, Attorney Butler rendered ineffective assistance at trial.

Both Jennings and Hostis were on Attorney Butler's witness list at the time of trial.

Attorney Butler testified that he was hesitant to use an alibi defense unless it was “lock sure.”   In petitioner's case, Hostis, petitioner's brother, and Jennings, his then girlfriend and mother of his child, would be considered family members and would come with an inherent bias, prejudice and motives.   “Even if they testified the truth, sometimes they are not believed because they are family.”   Attorney Butler expressed concern that if the alibi witnesses were not believable, it would look to the jury as if the defense was trying to pull the wool over the jury's eyes.   He stated that this would be dangerous.

Attorney Butler testified that Ms. Jennings had been interviewed and was originally willing to testify.   After learning that the victim's blood had been found on the car, she became less enthusiastic about testifying.   Attorney Butler observed a little queasiness in her support for the alibi testimony.   This was discussed with petitioner and it was decided that it would be best not to call her.

The investigator working with Attorney Butler knew petitioner's mother, Lucy Montoya.   She was helping with the defense and was asked to bring her son, Wilfredo Hostis, in for an interview.   Hostis never came in.   The investigator went to his home many times, but was unable to contact him.   Business cards with a note to call were left at Hostis' residence.   The investigator and Butler continued to attempt to interview Mr. Hostis, but were unable to do so.   The conclusion was reached that petitioner's brother was reluctant to testify.

Plaintiff has failed to prove that Attorney Butler's tactical decision not to call Jennings and Hostis amounted to ineffective assistance of counsel.   This is particular true when reluctance of these witnesses to testify is considered together with Attorney Butler's concern about presenting a weak alibi defense.

b. Claim of Prosecutorial Impropriety

In his second count, petitioner claims that his conviction and incarceration are illegal because they were obtained in violation of his state and federal constitutional rights to due process and a fair trial due to prosecutorial misconduct.

“In analyzing claims of prosecutorial impropriety, [a reviewing court] engage [s] in a two step analytical process ․ [A reviewing court] first examine[s] whether prosecutorial impropriety occurred ․ Second, if an impropriety exists, [a reviewing court] examine[s] whether it deprived the defendant of his due process right to a fair trial.”  (Citations omitted.)  State v. Fauci, 282 Conn. 23, 32, 917 S.2d 978 (2007).  “[T]he burden is on the defendant to show ․ that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.”  State v. Payne, 303 Conn. 538, 563, 34 A.3d 370 (2012).  “[W]hen a defendant raises a general due process claim, there can be no constitutional violation in the absence of harm to the defendant caused by denial of his right to a fair trial.   The constitutional analysis and the harm analysis in such cases are one and the same.”  Id., 563–64.

“[A] determination of whether the defendant was deprived of his right to a fair trial ․ must involve the application of the factors set out by [our Supreme Court] in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987) ․ Among them are the extent to which the [impropriety] was invited by the defense conduct or argument ․ the severity of the [impropriety] ․ the frequency of the [impropriety] ․ the centrality ․ the strength of the state's case.”  (Internal quotation marks omitted.)  State v. Stevenson, 269 Conn. 563, 573, 849 A.2d 626 (2004).  “The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties.”  State v. Jones, 139 Conn.App. 469, 472–73 (2012).

At petitioner's trial, the state called as a witness Roosevelt Jefferson who testified that petitioner possessed a 9 millimeter Ruger pistol and that he said he shot Eric Ortiz with this weapon.   At the subsequent trial of Samuel Walker, Mr. Jefferson was called, not by the state, but by the defense.   A cross examination of Mr. Jefferson by the state included the following:

Q The gun that you said you saw on April 19th of 2006, you said Llera said had a gun?

A Yeah.

Q It was so big he had to take the clip out of it to put it into the area behind the radio, right?

A Yes.

Q Now, you said in the statement to the police that you thought it was a nine, you weren't sure though, right?

A Yeah.

Q Could've been a .40 Glock, right?

A Coulda been.   It looked like a Ruger, Coulda been.   But it looked like a Ruger.

It is petitioner's claim that in his trial the state claimed that the weapon used was a 9 millimeter pistol and not a .40 caliber Glock.   But, it is claimed, that in Walker's trial the state was claiming that a Glock was the murder weapon.   Petitioner argues that this inconsistency amounted to prosecutorial impropriety and that there is a reasonable probability that it affected the outcome of his trial.

It cannot be found that this isolated question in another subsequent trial amounted to prosecutorial impropriety.   The question could have had no effect on petitioner's due process right to a fair trial.

IV

Conclusion

It cannot be found that petitioner has proven that in representing petitioner, Attorney Butler's conduct was so deficient as to amount to ineffective assistance of counsel or that petitioner suffered any prejudice as a result of Attorney Butler's representation.

Petitioner has failed to prove that he was deprived of his state and federal right to due process and a fair trial by any prosecutorial impropriety.

Accordingly, the petition for a writ of habeas corpus is denied.

Joseph J. Purtill, JTR

FOOTNOTES

FN1. The Appellate Court decision is not completely accurate.   The firearms expert, Marshall Robinson, testified that the bullets were all from the same weapon using nine millimeter Luger ammunition.   He did not identify the type of weapon used..  FN1. The Appellate Court decision is not completely accurate.   The firearms expert, Marshall Robinson, testified that the bullets were all from the same weapon using nine millimeter Luger ammunition.   He did not identify the type of weapon used.

FN2. At the habeas trial, the court reporter, Renae Mattei, testified that after reviewing her notes she confirmed that Jefferson actually described the weapon as a Ruger and not Luger..  FN2. At the habeas trial, the court reporter, Renae Mattei, testified that after reviewing her notes she confirmed that Jefferson actually described the weapon as a Ruger and not Luger.

FN3. Walker was subsequently acquitted..  FN3. Walker was subsequently acquitted.

FN4. The car was owned by petitioner's mother, Lucy Montoya.   Walker's testimony at the habeas trial confirmed petitioner's testimony as to the delivery of the keys..  FN4. The car was owned by petitioner's mother, Lucy Montoya.   Walker's testimony at the habeas trial confirmed petitioner's testimony as to the delivery of the keys.

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