Kareem Hedge v. Warden (2013)

MEMORANDUM OF DECISION

THE COURT:  The Court has taken the opportunity to review the Court's notes from the first day of trial and today, the relevant case law, the claims in the petition, and has taken the time to review some of the pertinent exhibits related to the arguments and the claims made by parties;  and the Court is prepared to issue its ruling at this time.

The petitioner makes two claims, one of ineffective assistance against trial counsel—and that relates specifically to the charge of the conviction for failure to appear—and the other one relates to a claim of ineffective assistance against appellate counsel based on the appeal of that conviction.

As to the claims of ineffective assistance against trial counsel, those are in Count 1, and there are four sub-claims.

The claim in Subparagraph 1–A has already been conceded by the petitioner, and therefore, that claim has been—is denied.

As to Sub-claim 1–B, the petitioner claims that trial counsel failed to enter copies of the bail bond documents as exhibits at the criminal trial.

And as all, I'm sure, are familiar, the standard with ineffective assistance claim at trial is Strickland v. Washington, which requires the petitioner to prove two elements in conjunction.   If he fails to prove either element, then his claim fails.

First, the petitioner must prove that counsel's performance was constitutionally deficient, meaning that his performance was not that of a reasonably competent and trained defense attorney under the same or similar circumstances, and he must also prove that as a result of that competence—that incompetence, I should say, that he was prejudiced, which means that but for counsel's constitutionally deficient conduct, there would likely have been or there's a reasonable probability that there would have been a more favorable result for the petitioner.

As to Count 1–B, the petitioner has failed to prove either prejudice or deficient performance by counsel.   The Court first notes that, again, the petitioner's obligation when he claims that counsel has failed to enter some evidence at trial that he says would have assisted him, it's generally the petitioner's burden to present that evidence here before the habeas Court to allow the habeas Court to consider that evidence and its potential effect on the evidence and the jury at the jury at trial.

The petitioner here has failed to do that, and that alone would be sufficient enough to deny the claim because the Court is unable to consider a document and its language and how, if at all, it would have affected the trial;  and therefore, he has failed to establish prejudice on that alone.

Additionally, even if the Court accepts counsel's arguments, which were to accept defense counsel's testimony as to what that document—the bond document actually said, the Court finds, again, that there is no prejudice.

The entry of the bond document, as testified here and as found by the Court, would have done nothing more than to have assisted the state in proving one of the elements of failure to appear against the petitioner, which was that there was, in fact, a bond document that required him to show up in court as a condition of his release.

Additionally, the Court finds that counsel's decision not to enter it and his understanding that entering it likely would have assisted the state and harmed his client shows that he was performing as a more than reasonably competent defense attorney in the fact that he understood that not entering this document or that this document not being in evidence gave him an alley to argue that the state had failed to prove its case.

As to Sub-claim C, the petitioner's claim that counsel failed to obtain a jury instruction that would accurately indicate what must be found by the jury for each element of the crime of failure to appear to prove beyond a reasonable doubt, this claim borders, frankly, on frivolous and is unproven.

First, the Court did, in fact, review the jury instruction, and again, despite counsel's insinuation here that the jury instruction somehow failed to give the jury direction as to what it needed to find as to what was willful or what conduct the defendant must have engaged in, the Court specifically defines on Page 92 that—let's see—an act is done—oh;  wait.   Hold on—3, as to the elements of failure to appear

And I quote from now on—that the defendant willfully failed to appear as required in his connection—in this connection, and he willfully failed to appear during the afternoon session of said court.

You are advised that an act is done willfully if done knowingly, intentionally, and deliberately.   An act is done knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such a nature or that such a circumstance exists.   Please refer to my previous definition of intent and what it means to do something intentionally.

And that instruction is at Page 79, where the Court instructs on intent.   Wait a minute;  yeah.

The first concept or definition is that of intent.   The word intent, what does it mean, and how do you determine it?   Intent relates to the condition of the mind of the person who commits the act, his purpose in doing an act.   As defined by our statute, a person acts intentionally with respect to a result when his conscious effort is to cause such a result.

And it goes on from there.   And that is the transcript of August 25, 2005.

And so the claim that there was somehow a lacking of direction to the jury in this case as to what willful meant or what must have been proven lacks any foundation whatsoever.   Additionally, if the petitioner claims that some other jury instruction was more appropriate, again, it was his burden to present that jury instruction.

There was no such instruction presented here.   There was no proof that the instruction given was somehow improper or against our law.   In the Court's reading, the instruction was, again, a standard Connecticut authorized and appropriate jury instruction on the charge of failure to appear, and the petitioner has presented nothing whatsoever to contest that this was not a lawful and appropriate jury instruction.

This claim that the Court should have somehow given an instruction on the mental element of negligence finds no foundation whatsoever in our criminal case law, nor has the petitioner cited any case law from the State of Connecticut or otherwise that in a case where the state has alleged willful or intentional conduct that there is some basis that the trial Court should have, could have, or would have given an instruction on negligence.

And in fact, our case law indicates the exact opposite, which is that our trial Courts should not instruct on an element or an issue that is not, in fact, involved in a criminal case.

Additionally, the petitioner likewise has failed to prove as to that claim that defense counsel's performance was in any way deficient, because again, he has failed to prove that counsel allowed some inappropriate or otherwise improper jury instruction to be presented to the jury.

As to Sub-claim D—that's a claim we had some lengthy discussion on during oral argument—which is the petitioner's claim that trial counsel failed to argue that the petitioner should be acquitted of failure to appear on grounds of insufficient evidence, first, as the Court finds, the Court finds that this issue was subsumed and has already been decided, at least the prejudice portion of this issue, by our Supreme Court, who has found that there was, in fact, sufficient evidence as to what was admitted for Mr. Hedge to be convicted.

And even if that were not sufficient, again, the petitioner has failed.   It is his burden, if he claims that there was supposedly insufficient evidence, to present that additional evidence or those additional arguments that counsel could have made.

Again, this nonsensical argument about that counsel could have presented an argument or requested a jury instruction that Mr. Hedge's conduct was negligent instead of intentional just bears no weight and no relevance to this case.   Counsel has also failed to—I mean the petitioner has also failed to prove that counsel was in any way deficient in his performance.

And again, it's the petitioner's burden to present here what additional arguments or what other things could have been presented;  but primarily, the Court finds that the Supreme Court's argument that there was sufficient evidence from which the jury could render a conviction prevents this Court from making a finding of prejudice in this matter, in any event.

So for those reasons—and I should say generally, too, as to all conduct that he testified about, I found Attorney LaPierre credible.   I find that he conducted a thorough investigation of the case law, the evidence, even reviewing the terms of the bond document, talked to prior defense counsel about what happened on the day Mr. Hedge did not appear, and I note specifically for the record, there is no claim or no evidence here before me but that Mr. Hedge knew that he was supposed to come back to court and simply didn't show up.

And so I find that Attorney LaPierre appears to have conducted himself more than competently in representing the petitioner and in preparing for his defense.

As to Attorney Nagy, the Court makes similar findings.   I think counsel testified as to a thorough going over of the case, the relevant case law, her process and procedures, how she prepared the issues for appeal.

And on the other side, the petitioner, other than making allegations, has presented nothing here that would lead this Court to be able to find that Attorney Nagy left anything on the table as to this claim.

He has presented no case law, no findings, or anything otherwise to lead this Court to believe that Attorney Nagy could have done something that would have led to any more favorable result during the appeal or that she left any obviously viable claims off the table regarding his failure to appear that could have assisted Mr. Hedge.

And so therefore, he has failed to prove that he was either prejudiced or that Attorney Nagy was deficient in her performance.

And for all those reasons, the Court denies the petition for writ of habeas corpus.

John H. Newson, Superior Court Judge

Newson, John M., J.