Jerome Rice v. Warden, State Prison (2013)

MEMORANDUM OF DECISION

The petitioner, Jerome Rice, seeks habeas corpus relief as to the fifty-three year prison term he serves following his conviction, after a jury trial, for the crime of murder.   The petitioner avers in his amended petition that his criminal defense counsel, Attorney Tashun Bowden–Lewis, and his appellate counsel, Attorney Mary Ann Royle, provided ineffective assistance in his criminal case.   His conviction was affirmed on direct appeal, State v. Rice, 105 Conn.App. 103 (2007), cert. denied, 285 Conn. 921 (2008).

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims.  Johnson v. Commissioner, 218 Conn. 403, 425 (1991);  Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992).   The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different.  Id.

As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness.  Johnson v. Commissioner, supra.

This standard of reasonableness is measured by prevailing, professional norms.  Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation.  Id.

I

The petitioner offered no credible evidence regarding deficient performance by his appellate attorney.   Consequently, he has failed to satisfy his burden of proving, by a preponderance of the evidence, that Attorney Royle's appellate representation was substandard in any manner whatsoever.   The second count of the amended petition is, therefore, denied.

II

In the first count, the petitioner specifically alleges that Attorney Bowden–Lewis breached professional standards by improperly investigating available evidence;  by failing to present evidence regarding the petitioner's mental condition and/or intoxicated state which rendered him incapable of forming the specific intent required to commit murder;  by failing to attack the evidence for and legality of the petitioner's confession sufficiently;  by failing to retain and present the testimony of a firearms expert;  by advising the petitioner to decline to testify in his own defense;  by inadequately cross-examining certain prosecution witnesses;  by failing to highlight favorable aspects of the petitioner at sentencing;  by failing to mitigate his punishment with evidence of his intoxication;  and by failing to move to suppress evidence seized pursuant to a search warrant.

Our Appellate Court concisely summarized the facts which the jury reasonably could have found to have occurred:

On October 23, 2003, the defendant, accompanied by his friend, Frank Orr, drove from the defendant's home in New York to Waterbury to see his son and his son's mother, Tosha McClashie.   After arriving, Norris McClashie, Tosha McClashie's brother, who also was a friend of the defendant, asked the defendant and Orr to go out on the town with him so that he could purchase some marijuana.   They took the defendant's automobile.   Sometime after they left the house, the defendant removed his Taurus nine millimeter handgun from the trunk of his automobile and placed it into his jacket pocket.   While driving around in the automobile, the three men drank some forty ounce beers and may have shared a marijuana cigarette.   They stopped at a few locations before ending up at Buddies Billiards (Buddies), While at Buddies, Norris McClashie (McClashie) was approached by his friend, Jose Lopez, who asked McClashie for a ride home.   McClashie asked the defendant if they could drop Lopez off at home, and the defendant agreed.   When they left Buddies, at approximately 12:30 a.m. on the morning of October 24, the defendant and Orr sat in the front seat, and McClashie and Lopez sat in the backseat of the defendant's automobile.   At some point during the ride, Lopez took out some cocaine and asked McClashie if he wanted some.   The defendant became very angry and told Lopez that he did not want drugs in his automobile, and Lopez gave the defendant a sarcastic response.   Shortly thereafter, Lopez asked the defendant to stop the automobile because he had to relieve himself.   The defendant stopped, and Lopez walked to the rear of the automobile.   The defendant exited the vehicle and walked behind the vehicle as well.   McClashie then heard two bangs, and the defendant returned to the driver's seat.   When the defendant began to drive away, McClashie asked the defendant what had happened and if he had shot Lopez.   The defendant did not respond.   McClashie asked the defendant to return to the scene to get Lopez and take him to a hospital, but the defendant again said nothing.   The defendant drove normally and took McClashie home, telling him not to say anything about what had transpired.   The defendant then drove back to New York. McClashie telephoned the defendant later in the day and asked him if Lopez was dead, and the defendant stated that he had shot Lopez in the chest and in the head.   McClashie then asked the defendant why he had shot Lopez, and the defendant responded that he had never liked Lopez.

Later in the evening, McClashie gave a statement to the police.   A warrant was issued for the defendant's arrest, and members of the Waterbury police department went to New York to execute the warrant.   During the night of October 25, 2003, at approximately 11:30 p.m., the defendant was arrested at his New York apartment, where the police also found the gun that was used to kill Lopez.   The police took the defendant to the 105th precinct in New York City. Within approximately twenty minutes, the defendant confessed to shooting Lopez and signed a written confession.

Id., 105–106.

In addition, the evidence of the petitioner's actions, besides his confession, was that the petitioner shot the victim in the chest and then approached to within four to six inches of the victim and shot him in the right temple while the victim lay on the ground.   A slug, which penetrated about four inches into the ground, was recovered directly beneath the victim's head.   This projectile was precisely aligned with the exit wound located at the victim's left temple where the victim was found.   It was and is undisputed that the petitioner twice shot the victim as described above.

The evidence adduced at the criminal trial also disclosed that the petitioner was “buzzed,” but not intoxicated, when he killed the victim.   The petitioner's companions at the scene testified to that effect.   The petitioner's faculties were sufficiently intact to enable him to drive his car from the homicide scene in Waterbury to his residence in New York City without apparent difficulty.   His mind and memory were functioning at a level which enabled him to recognize the incriminatory nature of and to conceal the pistol in a safe at his residence.

Later, Norris McClashie, a friend of the petitioner, phoned him and inquired about the petitioner's motivation for killing the victim.   The petitioner told McClashie that he disliked the victim.   The petitioner also expressed his utter disdain for the victim and total lack of remorse for his conduct by exclaiming, “fuck that nigger.”   He informed McClashie that he minimized the chances that gunshot residue could be detected on his person by draping an object over the pistol before firing at the victim.

At the habeas hearing, the petitioner presented the testimony of Dr. Bruce Freedman, a clinical psychologist licensed to practice in Connecticut.   Dr. Freedman is trained and experienced in the treatment of alcoholism and mental illness.   He interviewed the petitioner and performed some tests.   As a result of this examination, Dr. Freedman discerned two factors which play significant parts in the petitioner's life.   First, the petitioner is very distrustful of others and takes offense easily.   He tends to perceive the innocuous conduct of others as criticism.   Second, the petitioner has been an alcoholic since junior high school.

Dr. Freedman opined that, if the petitioner lacked sleep for two days and drank excessively during that period, those conditions combined with the petitioner's paranoia would substantially reduce his clarity of thought at the time he was interrogated by the police and confessed.   The petitioner told Dr. Freedman that he drank continuously from his arrival home to the time of his arrest.

Dr. Freedman never testified that the petitioner's condition would have incapacitated him from forming the specific intent to shoot and kill the victim.   Nor did any other expert witness testify as to that conclusion.   In fact, Dr. Freedman never reviewed the trial transcripts at all.   In addition, no legal expert's opinion was produced as to the likelihood that the outcome of the suppression hearing or of the trial would likely have been different had testimony similar to Dr. Freedman's been offered at those proceedings.

If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence.  Pelletier v. Warden, 32 Conn.App. 38, 46 (1993).   In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.  Levine v. Manson, 195 Conn. 636, 640 (1985).   Reasonable probability means a probability sufficient to undermine confidence in the verdict.  Daeira v. Commissioner, 107 Conn.App. 539, 542–43 (2008), cert. denied, 289 Conn. 911 (2008);  that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt.  Id.

The court has thoroughly reviewed the evidence at the criminal trial and habeas hearing and suppression hearing.   The court concludes that the petitioner has failed to demonstrate, by a preponderance of the evidence, there exists a reasonable likelihood that the outcome of either the criminal trial or suppression hearing would have been different but for evidence of the petitioner's history of alcohol abuse and mental condition.   The trial judge's decision aptly shows that the petitioner's lack of sleep and alcohol consumption was considered by the judge and rejected as a basis for suppressing the petitioner's confession.   Instead, the trial judge found the police officer witnesses were credible and that the petitioner had knowingly and voluntarily confessed.   Nothing provided by Dr. Freedman's testimony persuades this court that that added testimony would have affected the ultimate decision to deny the motion to suppress.   Indeed, one would expect a heightened level of distrust to have induced the petitioner to refuse to cooperate with the police.

As to the verdict, Dr. Freedman's assessment actually supplies the motivation for the homicide which Attorney Bowden–Lewis had futilely tried to show was missing in the effort to create reasonable doubt as to whether the petitioner harbored murderous intent when he shot the victim.   Dr. Freedman's conclusions suggest that the petitioner would have taken great umbrage over the victim's comments which the petitioner perceived as signs of disrespect.   The tendency to exaggerate slights would explain why the petitioner would want to end the victim's life so vehemently and violently.   Dr. Freedman's opinions make the inference of intent to kill more, rather than less, plausible.

As to the motion to suppress, as noted earlier, the hearing judge specifically found that the petitioner was not intoxicated when he confessed to the police.   On December 5, 2005, the judge stated, “[a]lthough there is some evidence the defendant had not had some sleep—had not had any sleep in some period of time and may have been drinking alcohol, the court does not find that he was intoxicated to any significant degree.”   The next day, Judge Prescott reiterated, “[t]here was some evidence presented that the defendant had consumed some alcohol earlier in the evening and had not had any sleep for an extended period of time.”   The judge further explicated, “the defendant did not doze off at any time or display other ill effects of any lack of sleep.”

The petitioner's confession, which went before the jury, also contained the petitioner's claims regarding a lack of any sleep and drinking.   Both Judge Prescott and the jury arrived at their respective decisions knowing of these claims by the petitioner.   This disclosure, through the confession, obviated the petitioner's need to testify at the trial and subject himself to potentially damaging cross-examination.

This court concludes that testimony similar to Dr. Freedman's would have done little to enhance the defense theory of a lack of requisite intent, and it is more likely to have undermined that theory.

At the habeas hearing, the petitioner also offered the expert testimony of Attorney Donald Cretella.   Attorney Cretella is well-versed in criminal defense practice and has represented many criminal defendants at jury trials.   He has never spoken to the petitioner, reviewed the transcript of the suppression hearing, nor read the presentence investigation report or a transcript of the sentencing proceeding.   He did peruse the police reports, some trial transcripts, and the petitioner's amended, habeas petition.

Attorney Cretella described in detail the efforts he would have exerted if representing someone in the petitioner's circumstances.   His approach would have differed in some ways from the defense provided by Attorney Bowden–Lewis.   However, Attorney Cretella never expressed an opinion that Attorney Bowden–Lewis breached professional standards in any way in her defense of the petitioner.

More fundamentally, he never opined that, had the petitioner testified at the suppression hearing or at trial or had a psychological expert, such as Dr. Freedman, been obtained and presented at either proceeding, the probable outcome of the criminal case would have been favorably enhanced.   Attorney Cretella was not asked to comment on the impact any alleged substandard representation by Attorney Bowden–Lewis probably would have had on any aspect of the petitioner's criminal case.   At bottom, Attorney Cretella merely described how he would have handled the criminal matter.

Attorney Cretella did, however, acknowledge that attempting to create reasonable doubt by demonstrating that the petitioner was so highly intoxicated as to be unable to harbor the intent to kill the victim would have proved an extremely difficult task.   He observed that such a defense risked backfiring by supplying the explanation for why the petitioner was so quick to anger and resort to violence, viz. a reduction of inhibition and judgment.   The court agrees with this risk assessment that such evidence would account for the petitioner's precipitous, but still purposeful, shooting of the victim.   One must recall that the petitioner shot the victim two times and from different distances, including the coup de grace when the victim's body lay on the ground.

The court determines that the petitioner has failed to satisfy his burden of proving the prejudice component of the Strickland standard with respect to his conviction for murder.

As to professional delinquencies during the sentencing phase, the petitioner alleges that Attorney Bowden–Lewis failed to emphasize the petitioner's lack of previous convictions, his work history, and his positive contributions to his family.   He also alleges that Attorney Bowden–Lewis failed to mitigate the crime of which he was found guilty by evidence of the petitioner's intoxication when he murdered the victim.   These allegations are without credible factual support and are meritless.

At sentencing, Attorney Bowden–Lewis began her comments by referencing the petitioner's clean previous criminal history and reiterated this good record later.   Regarding employment history, it must be noted that the petitioner was unemployed at the time of the murder and that he had been fired from one job for intoxication and two others for excessive absences.   This was hardly a work history worthy of emphasis.   Indeed Attorney Bowden–Lewis tried to minimize this dismal employment record by attributing it to the indiscretion of youth and alcoholism.

Attorney Bowden–Lewis informed the sentencing authority that, before his arrest, the petitioner “was very much a part of his [son's] life ․” She stressed the petitioner's claim that he shot the victim after consuming alcohol and smoking marijuana.   With the consent of the petitioner, she read a statement in which the petitioner stated that he “was intoxicated and high on weed that night ․” The sentencing judge found that the petitioner's inebriation in no way mitigated the execution-style killing of the victim.

Additionally, the PSI report explored the petitioner's background in great detail.   Simply put, the judge ascribed little weight to these mitigating claims when balanced against the callous murder of the victim.   The judge observed, “these are the actions of someone who is an absolute menace to society.   You are someone who resorts to the ultimate act of violence over the slightest, perceived wrong.   You are a danger to society.”

The petitioner has failed to prove that Attorney Bowden–Lewis was deficient in her representation of the petitioner at any stage of his criminal proceedings.   The amended petition for habeas corpus relief is, therefore, denied.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.