Stephen Moravsky v. Warden (2013)

MEMORANDUM OF DECISION

THE COURT:  During the luncheon recess, the Court has had the opportunity to consider the testimony and evidence that was presented, review the exhibits, and obviously, the Court has had the opportunity to consult with applicable case law;  and at this time, the Court is prepared to issue its ruling.

And generally, as to—and I'll go through the claims individually.   As to the petition for writ of habeas corpus, the Court is going to deny the petition.

And specifically, the petitioner claims that counsel was ineffective for a number of reasons at trial which falls within the Strickland v. Washington standard, where he, again, needs to prove that counsel's performance was constitutionally deficient, meaning that his conduct or professionalism was less than that of a reasonably trained attorney under the same or similar circumstances, such that it had an effect on the outcome;  and that goes to the second prong, which is prejudice, meaning that but for counsel's constitutionally deficient conduct, the petitioner likely would have—there's a reasonable probability that the petitioner would have obtained a better or more favorable result.

And in this matter, the petitioner has failed to prove either as to any of the claims presented in his petition.   And I'll go through them individually, just for the record.

As to claims which all are under Paragraph 6, Subparagraph A, claims that counsel failed to subpoena witnesses who could testify favorably for the petitioner, as discussed during oral argument, when the petitioner makes a claim that counsel has failed to present certain witnesses or failed to present certain evidence at trial as a claim of his or her deficiency, it is the petitioner's burden before the habeas Court to present those witnesses or to present that evidence to allow the habeas Court to make a determination on the credibility of the witnesses, the admissibility of the evidence, or the evidence that the witness may have to offer and what, if any, effect that may have had against the evidence that was actually submitted at trial.

And in this case, the petitioner has failed to do that, meaning that this petitioner has failed to meet his burden of establishing that there was any prejudice.

As to Subparagraph B, again, it's a claim that counsel failed to adequately investigate evidence and/or state witnesses prior to trial.   Although there was some testimony about the names of witnesses, again, none of those witnesses were presented here before the habeas Court;  and so the habeas Court was unable to make any determination about the credibility of the witnesses, the evidence they may have had to offer, or whether any of that would have been admissible at trial.   So again, as to Claim B, the petitioner has failed to establish prejudice.

And under the Strickland v. Washington standard, the Court should reiterate—if I didn't say—the petitioner must establish both prongs in order to be successful.   If the petitioner fails on either the deficient performance prong or the prejudice prong, then his claim fails.

As to Subparagraph C—it's a claim that counsel failed to obtain all 911 calls regarding the incident that went to the Danbury Police Department.   Frankly, before—the testimony before this Court—the petitioner presented no evidence.   Not only were the 911 calls themselves not presented for this Court to consider, which would have been the petitioner's burden, there was no evidence as to how or what in any way they could have affected the trial.   There was actually no evidence that they actually existed at trial.

And the only evidence that came forward was counsel's testimony, which is that he asked for them, and the state's attorney indicated they did not exist.   So again, the petitioner has failed to establish any prejudice because he has failed to establish that this evidence actually even existed at the time of trial.

As to Subparagraph D, again, a claim that counsel failed to locate and/or interview witnesses who were known to be witnesses for the state prior to trial, this is similar to Claim A.

And again, even though we heard the names of certain witnesses, none of those witnesses testified here before this Court, so this Court is unable to make any assessment as to the credibility, the admissibility of the evidence they may have had to offer, or what, if any, effect it could have had or would have had on the jury.   And so the petitioner has failed to establish prejudice as to Subparagraph D.

As to Subparagraph E, a claim that trial counsel failed to investigate the ownership of the house at 192 Triangle Street in Danbury, again, not only was there no prejudice here, but that was affirmatively disproven by the petitioner's own admission that his counsel found and located and interviewed Mr. Dale Eaton, who was the last known owner of the property, and actually presented him as a witness for the defense.

Despite his lack of legal ownership of the property, at the time of the trial, counsel actually presented him as a witness, and it appears that his testimony was clearly effective because his claims that he allowed the petitioner access to the property likely affected the jury's decision not to convict on the burglary or the home invasion charge.

And so not only is there no prejudice as to that claim, that claim has been affirmatively disproven;  and the Court finds, at least to that specific count, that not only is there no prejudice, but that counsel clearly met his duty of diligent investigation and advocacy for his client.

As to Subparagraph F—it's a claim that trial counsel failed to offer evidence of the defense of abode under General Statutes 53–206(b)(e)

First, it's clear from the evidence that the location was not the abode—as meant within the meaning of the general statutes—of the petitioner.   Although he claims he may have flopped there or stayed there or came by the place every so often, it's clear from the evidence presented here that there was no prejudice because it could not have been established reasonably that this was the petitioner's abode by his own testimony at trial and by evidence that was submitted here.

Additionally, that statute uses another word, which is peaceably at the person's abode, which clearly would have been an issue in this trial, since the claim is that there was some sort of dispute where the defendant was chasing a person around with that knife and threatening to kill them.

And so by either one of those, the Court would find that either the statute is inapplicable, or even if it was applicable, there would have been no prejudice here because clearly the incident here was not peaceable, as the jury found the petitioner guilty of all of the other charges, including threatening, breach of peace—threatening, disorderly conduct—yes—threatening and disorderly conduct, which would clearly mean the jury found that he was not acting in a peaceable manner.

As to Subparagraph G—it's a claim that trial counsel failed to request that the Court include a jury charge of the lesser included for criminal mischief in the first degree, meaning that counsel failed to include the jury charge for criminal mischief second.

Again, the Court finds no prejudice.   One, respondent is correct that in order to—before they could have reached the claim or the charge of criminal mischief second, the jury would have had to have found the petitioner not guilty on criminal mischief in the first degree, which they clearly rejected.

Secondly, the Court finds that the evidence here would not have made a difference.   Even if counsel had requested that lesser included offense, it was clear from the petitioner's own admission, he did significant damage to the cruiser, and there was nothing to refute the evidence that was presented at trial that that cruiser was placed out of service for a week.

That clearly meets the definition of the statute, and so even if there had been a lesser included instruction given for criminal mischief in the second degree, it wouldn't have made a difference in this Court's finding because there was more than ample evidence for the jury to convict him on criminal mischief in the first degree for damaging the cruiser and for putting it out of active service.

As to Subparagraph H, a claim that trial counsel failed—failed to have a hearing on the motion to suppress the photographs, again—first, there was no presentation of any evidence whatsoever as to what, if any, the outcome of that motion to suppress hearing would have been, how, if at all, that would have benefitted the petitioner at trial.

It is unreasonable to believe that trial counsel would have been able to suppress in its entirety evidence—photographs of the evidence of damage that he did to the property that he was being charged for.

And the Court finds that counsel's ability to enter into a voluntary stipulation with the state, where he kept out almost twenty—almost seventy-five percent.   I think he said there were about fifteen photographs, and he agreed that four of them could be entered.

I think—the Court finds that that was a more than competent move.   Rather than having a protracted and probably wasteful hearing on photographs that counsel knew at least some of which were going to be entered into evidence, he entered into a stipulation with the state that only certain photographs—four, I believe he testified to—would be entered.

And the Court finds not only is that more competent, but that again, the petitioner has failed to prove how otherwise he was prejudiced since, again, it was unlikely that all of the photographs would have ever been suppressed by a Court of competent jurisdiction.

As to Subparagraph I, the claim that counsel did not properly prepare the petitioner for his testimony and asked harmful questions while the petitioner was on the stand, the Court finds that there was no evidence presented here at all, actually, as to counsel's preparation, questioning, or otherwise of the petitioner for trial.

There was no testimony or evidence as to how, if any, of the questions counsel asked were supposedly harmful to the petitioner, and most importantly, there was no evidence as to how any of those things supposedly could have been done better.   And so the petitioner has neither proved deficient performance as to that claim, nor has he proved there was any prejudice.

There's also Subclaim—Subparagraph J, a claim that trial counsel did not investigate, acquire, or examine the state's evidence prior to trial.   Again, that's been affirmatively disproven.

The Court credits trial counsel's testimony, and in fact, the petitioner's own testimony, where he admits that counsel gave him and shared with him copies of the exhibits, police reports, and discussed the evidence with him prior to trial.

There was no evidence from the petitioner as to what, if any, portion of the state's evidence that he claims counsel was missing or that he failed to investigate, which would have been the petitioner's burden in order to establish prejudice;  so again, the Court finds no deficient performance has been proven, neither has the petitioner proven prejudice as to that claim.

As to Subparagraph K—it's a claim that trial counsel failed to offer damage reports or damage.

The Court also specifically finds and credits counsel's testimony that he did, in fact, investigate these claims and found that the information he provided—he was provided was the exact opposite.   It was that it was the petitioner's people and the petitioner himself who were allegedly trying to bribe other witnesses.

And counsel did what any prudent counsel would have done, which was he didn't put the witnesses on the stand because they would have harmed his client.

And so in general—and I didn't mention this in the beginning—as to all claims, the Court found that counsel's testimony was credible.   He testified as a competent and credible and experienced attorney.   He testified as to making certain decisions based on sound trial strategies, such as his avoidance of certain subjects so as not to open the door so that the state would have the opportunity to present more harmful evidence.

His job—which the Court finds—which must have been somewhat masterful art of persuasion in convincing the jury to accept the story of a person who didn't even own the property that he was able to grant the petitioner permission to be inside and be on the property.

And again, the Court finds counsel's testimony as to his efforts, investigation, his conversations with his client, his considerations of how certain issues he might present or try to present before the jury might adversely or beneficially affect his client and that he made his decisions based on what he found to be most beneficial to his client while also attempting to sidestep issues that he thought in the long run would be more harmful than they would be helpful to his client's case.

And so I have found that there's been no proof whatsoever that counsel was anything but competent and qualified and represented Mr. Moravsky vigorously, and again, in getting him acquitted of the two most serious charges in this matter.

THE PETITIONER:  Shouldn't have even been charged with—

THE COURT:  Mr. Moravsky, I'm going to tell you right now.   Be quiet because what's going to happen is—I've already warned you more than once about interrupting these proceedings.

What will happen is, you want to keep it up, we'll move right into a contempt proceeding.   You can have six more months to do on top of what you're doing already.   That's your last warning about speaking out.

Again, to summarize, the Court denies the petition and finds generally as to all claims that the petitioner has failed to prove either deficient performance by counsel or that he was prejudiced in any manner.

(The matter was concluded.)

John M. Newson, Superior Court Judge

Newson, John M., J.