Martin Gray v. Warden, State Prison (2013)

MEMORANDUM OF DECISION

The petitioner, Martin Gray, seeks habeas corpus relief in the form of vacating his convictions, after a jury trial, for sexual assault first degree and risk of injury, for which crimes he serves a total, effective sentence of forty-five years, execution suspended after thirty-five years, and fifteen years probation.   These convictions were affirmed on direct appeal, State v. Gray, 126 Conn.App. 512 (2011).   He bases his claims on allegations of ineffective assistance by his criminal defense counsel, Attorneys Scott Jones and Catherine Teitell.   The court makes the following findings of fact and rulings of law.

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.

In his amended petition, the petitioner specifically avers that Attorney Teitell rendered deficient legal assistance by neglecting to investigate and present exculpatory evidence and witnesses;  by failing to communicate adequately with the petitioner regarding the ramifications of having a jury trial rather than pleading guilty in exchange for an indicated sentence;  by exerting undue influence on the petitioner concerning his decision to reject plea offers;  by failing to request and obtain timely retests of DNA specimens;  and by inadequately cross examining the state's DNA analyst.   He also asserts that Attorney Jones was ineffective for failing to obtain a timely retest of the inculpatory DNA evidence.

The petitioner's posttrial brief omits any discussion of the purported failure of either counsel to secure retesting of the incriminating DNA evidence which established that the petitioner impregnated a child under the age of thirteen years.   Therefore, the court regards these allegations as abandoned.   The court also observes that no evidence was proffered by the petitioner at the habeas trial on this assertion.

A similar absence of evidence at the habeas hearing also occurred with respect to the allegations that Attorney Teitell neglected to uncover and offer exculpatory evidence.   The petitioner presented no legal, medical, or forensic expert testimony on his behalf.   The witnesses at the habeas hearing were the petitioner and Attorneys Teitell and Jones.

The petitioner decries the failure of Attorney Teitell to produce expert testimony at his criminal trial on the subject of “sexsomnia.”   But neither did he present such evidence in this proceeding.   The burden is on the petitioner to prove habeas claims by a preponderance of the evidence, and that burden in this particular case necessitates proof that such an expert had favorable opinions for the petitioner, would have been available to testify at the criminal trial, and that the failure to obtain such evidence fell beneath contemporary, professional norms for criminal defense practitioners at that trial.   No credible evidence supporting those facts was addressed at the habeas hearing.

The remaining allegations center on whether and when Attorney Teitell informed the petitioner that Dr. Peter Morgan, a psychiatrist and assistant professor of psychiatry at Yale University, would not be called as a defense witness at the petitioner's jury trial.   These occurrences purportedly bore on the petitioner's decision to decline to plead guilty in exchange for a sentence entailing a ten-year unsuspended prison term.

The petitioner testified at the habeas hearing that, had he known that Dr. Morgan would not be called as a defense witness;  he would have accepted that plea offer.   The offer was irrevocably rejected by the petitioner on May 14, 2007, during jury selection.   He further averred that he rebuffed the offer because Attorney Teitell misled him into believing that Dr. Morgan's testimony afforded the petitioner a good chance of prevailing at trial.   He stated that he first learned of the decision not to utilize Dr. Morgan on the first day of trial evidence.

Contrary to this testimony, Attorney Teitell testified that she continually and strongly urged the petitioner to accept the plea offer upon its inception, but the petitioner stubbornly refused to do so because he tenaciously clung to a misconception of his own creation that the victim would take the stand and vouch for the fact that she had sex with him while he was unconscious of his actions.   He arrived at this conjecture because he suffered from blackouts produced by intoxication and he had no recollection of ever engaging in intercourse with her.

Attorney Teitell consistently indicated to the petitioner that his putative defense had no legal or factual basis and that it was highly likely that he would be convicted at trial and have a lengthy prison sentence imposed.   She told him that Dr. Morgan's opinion was unfavorable because the petitioner's blackouts did not negate the voluntariness of the actions in which the petitioner engaged at the time he took them but merely suppressed the petitioner's memory of those purposeful actions.   She also reported to the petitioner that she had consulted with other medical experts, including a urologist, and they concurred that inebriation sufficient to induce unconsciousness would also render sexual intercourse impossible.   On May 14, 2007, the petitioner signed a letter acknowledging the terms of the plea offer, that Attorney Teitell had repeatedly urged the petitioner to accept it, and that the petitioner refused to follow her advice.

The court finds that Attorney Teitell's testimony was very believable and corroborated by other credible evidence.   It should be noted that the petitioner had earlier declined to accept a plea offer involving seven years imprisonment.   That offer predated any discussion about or attempt to procure expert testimony about “sexsomnia.”   Conversely, the court finds the petitioner's testimony utterly unworthy of belief as to his motivation for refusing the plea offer.   Instead, the court determines that he refused to plead guilty because he adamantly refused to relinquish his unrealistic and unwarranted belief that he would be vindicated at the jury trial despite Attorney Teitell's persistent attempts to disabuse him of this misconception.

The court concludes that the petitioner has failed to meet his burden of proving any of his allegations of ineffective assistance against either Attorney Teitell or Jones.   The amended petition for habeas corpus relief is, therefore, denied.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.