William Morrissette v. Warden (2013)

MEMORANDUM OF DECISION

THE COURT:  The Court is ready to issue a ruling in this habeas petition trial.

The petitioner William Morrissette brings this petition for a writ of habeas corpus claiming that his trial counsel was ineffective, and as a result his Sixth Amendment Right to effective assistance of counsel was violated.   He seeks relief that his conviction be vacated and that he be immediately released.

The petitioner was convicted after a jury trial on April 13th 2005;  felony murder in violation of Connecticut General Statutes, section 53a–54c;  burglary in the first degree in violation of section 53a–101, subsection a, subsection 2;  robbery in the first degree in violation of Connecticut General Statutes 53a–134, subsection a, subsection 1;  arson in the first degree in violation of section 53a–111, subsection a, subsection 4;  arson in the second degree in violation of section 53a–112, subsection a, subsection 1, and subsection b;  and tampering with physical evidence in violation of section 53a–155, subsection a, subsection 1.

On or about June 10th 2005 the petitioner was sentenced to a total effective term of seventy years of incarceration.

The petitioner appealed from the judgments in State of Connecticut versus William Morrissette, CR99–0076436.

And on or about February 12th 2008 the Connecticut Appellate Court, from the judgment in Connecticut;  State of Connecticut versus William Morrissette —and there is a decision;  State v. Morrissette, 105 Conn.App. 743, 2008.   Thereafter, the petitioner filed a petition for certification to appeal to the Connecticut Supreme Court;  the same was denied on or about April 2nd 2008.

Petitioner brought this petition for a writ of habeas corpus, and on July 13th 2011 petitioner filed a second amended petition claiming ineffective assistance of counsel.

His second amended complaint originally contained two counts.   He withdrew the second count;  the actual innocence count.   The petitioner also withdrew sections of his first count, specifically paragraph 24a, 1 through 19, and 21 through 36.   Only 24a, subjection 20, remains. 24b was withdrawn in its entirety as was 24g and h.

So the only counts that remain are 24a 20;  the petition that the petitioner trial counsel's performance was deficient because he failed to properly and adequately exam—cross-exam, impeach and or challenge the testimony of William Lee. That pursuant to subsection—paragraph—excuse me, paragraph 24c, that he failed to properly and adequately develop and present a defense of third-party culpability.   Pursuant to paragraph 24d, he failed to properly and adequately investigate and seek DNA testing of various objects seized at or around the crime scene, and to use the results of such DNA testing in the defense of the petitioner.   And under paragraph 24e, he failed to retain, consult with, use and seek assistance from an expert in the area of DNA testing.   Under paragraph 24f, he failed to engage in the DNA testing of a cigarette butt that was found at or near the crime scene, and that there is reasonable probability that but for the petitioner's trial counsel's deficient performance, the result of the petitioner's trial would have been different and more favorable to the petitioner.

A criminal defendant's right to effective assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the United State's Constitution and by article first, Section 8 of Connecticut Constitution.   To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 687.

As the Connecticut Supreme Court held in Johnson v. Commissioner of Correction, 285 Conn. 556;  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.

To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as a counsel guaranteed by the Sixth Amendment, and I am citing Ledbetter v. Commissioner of Correction, 275 Conn. 451, 2005 case.   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 admissions were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment, and as a result he deprived—he was deprived of a fair trial.

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 the result of which is reliable, and I am citing Strickland v. Washington, 466 U.S. 687.   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.

Ultimately, the 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.

A Court need not determine whether counsel's performance was deficient before examining the prejudiced suffered by the defendant as a result of the alleged deficiencies.   If it is easier to dispose of an ineffective claim on the ground of lack of sufficient prejudice, that course should be followed.   And I am citing Elsey v. Commissioner of Correction, 126 Conn.App. 144, 2011 case.

Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, the Court may dismiss a petitioner's claim if he fails to meet either prong.

The petitioner makes the general claim that the trial counsel failed to properly cross-exam the State's witness William Lee, regarding third-party culpability.   Although the petitioner called the trial counsel, Attorney Kelly, to testify, he did not adequately question him on any questions about his cross-examination of Mr. Lee. The petitioner also did not provide expert attorney testimony to establish the purported deficiencies in these cross-examinations, nor even any legal argument or cases to support these claims.

On cross-examination by the respondent, trial counsel indicated that he tried to show, through the testimony of Mr. Doolittle, the owner of Kathy's Packie and Liquor Store—and that is Petitioner's Exhibit number 8, beginning on page seventy-five of the transcript—that he tried to show a nexus between Mr. Lee and the victim by showing that Mr. Lee was purchasing liquor and cigarettes for the victim because he was purchasing the same brand of vodka, 1.75 liter of Niurka (phonetic) Vodka as well as cigarettes.   Attorney Kelly also crossed-examined Mr. Lee sufficiently to show that Mr. Lee considered himself a suspect in this case due to his criminal history.

An attorney's line of questioning of a witness is a tactical decision, as such this Court will not, in hindsight, second-guess counsel's trial strategy.   The fact that counsel arguably could have inquired more deeply into certain areas or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance.   And I am citing Velasco v. Commissioner of Correction, 119 Conn.App. 164, 2010.

Cross-examination is a sharp two-edge sword, and more criminal cases are won by not cross-examining adverse witnesses or by a very selective and limited cross-examination of such witnesses then are ever won by demolishing a witness on cross-examination.   The decision whether to cross-exam a witness is peculiarly one of—one for defense counsel and his judgment should be entitled to great respect by the Court.   I am citing State v. Clark, 170 Conn. 273, 1976.

In a habeas corpus proceeding, the petitioner's burden of proving that fundamental unfairness has been done is not met by speculation but by demonstrated realities.   One 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.   Moreover the habeas court does not sit as some sort of peer-review examiner to grade the performance of trial defense counsel.   To submit a transcript and essentially to ask the Court to engage in plenary critique of counsel's efforts and to then attempt to find something wrong is a misunderstanding of the role of the habeas court and the burden that rests with the petitioner.   It is not appropriate for a habeas court to examine the performance of a trial defense counsel and put it under microscopic scrutiny.   And, I am citing Nunez v. Warden, Superior Court Judicial District of Tolland, docket number CV04 0004519, August 30, 2006.

Attorney Kelly is an experienced attorney, forty-three years of practice.   He testified that he concluded about ten murder trials to verdict.   He also had the benefit of the transcript from the first trial and the second trial, as well as the State's evidence, which he reviewed.

As to the DNA testing, Attorney Kelly testified that the specimen, 0002G1, was consistent with the victim's DNA and the cigarette butt, respondent's E—Exhibit E. The DNA found on the cigarette butt came back inconclusive;  therefore he did not believe he needed to exclude his client's DNA because petitioner's DNA was not present on either of these samples.   He also testified that the crime scene was contaminated and that the cigarette butt was not probative of anything because it was recovered two days after the initial crime scene was established.   He also did not want to offer up the petitioner's DNA because he could possibly inculpate him in the trial, which is very reasonable for a defense attorney to do.

Therefore, pursuant to the foregoing, the Court finds that the petitioner has failed to prove that the trial counsel's representation fell below an objective standard of reasonableness under the Strickland test, therefore the claim is denied.   For all the foregoing reasons, the petitioner is denied and judgment shall enter in favor of the respondent.

And Transcript—I am going to order a transcript and it will serve as my written decision.

Let the record reflect petitioner is receiving his right to appeal.

Kwak, J.

Kwak, Hunchu, J.