248150 v. Warden (2013)

MEMORANDUM OF DECISION

On July 8, 2010, the petitioner, Orema Taft, filed a petition for a writ of habeas corpus, which was amended by assigned counsel for the second and final time on December 10, 2012.   The second amended petition raises claims of ineffective assistance by trial counsel and challenges the petitioner's convictions in docket number CR 06–215206, judicial district of Fairfield at Bridgeport.   These convictions stem from the petitioner's jury trial.

The petitioner was charged in an information with the crimes of murder, conspiracy to commit murder, criminal possession of a firearm and carrying a pistol without a permit.   On September 19, 2007, the petitioner, who was represented at all relevant times by Attorney Eroll Skyers, was convicted by a jury of one count of murder in violation of General Statutes § 53a–54a(a) and conspiracy to commit murder in violation of General Statutes §§ 53a–48(a) and 53a–54a(a).   The petitioner was sentenced to a term of forty-five years to serve.

The petitioner now claims in the second amended petition that he was denied his right to effective assistance of counsel in violation of his federal and state constitutional rights to effective assistance of counsel.   More specifically, as enumerated in the indicated paragraphs of the second amended petition, the petitioner alleges defense counsel performed deficiently by:

(7)(a)—failing to cross examine the state's witnesses concerning a reward which had been offered in the case;

(7)(b)—failing to cross examine a state's witness regarding the fact that, under oath, during the co-defendant's trial, he had recanted the statement that he had provided to the police inculpating both the petitioner and the co-defendant;

(7)(c)—failing to make adequate investigation into the state's offer of a reward;

(7)(d)—failing to make adequate investigation into the testimony of witnesses at the trial of the petitioner's co-defendant which trial occurred prior to the trial of the petitioner;  and

(7)(e)—conceding the involvement in the crime by the petitioner during final argument.

The respondent's return denies the petitioner's claims.

The parties appeared before this court on April 1, 2013, for a trial on the merits.   Additionally, the parties were ordered to file simultaneous post-trial briefs by May 1, 2013, which both parties did.   The petitioner presented testimony from Attorney Skyers and expert witness Attorney Jeffrey Kestenband.   The respondent presented testimony from Senior Assistant State's Attorney C. Robert Satti, who prosecuted both the underlying criminal matter as well as the earlier trial of the petitioner's co-defendant, Miguel Zapata.   Additionally, the parties entered into evidence various documents, primarily transcripts, copies of several motions to suppress, and copies of letters from former defense counsel to the petitioner.

The court has reviewed all of the testimony and evidence and for the reasons stated more fully below, denies the petition for a writ of habeas corpus.

DISCUSSION

I. Ineffective assistance of counsel standard

“A criminal defendant's right to the effective assistance of counsel ․ is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution ․ To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).”  (Citations omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

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.”  (Internal quotation marks omitted;  emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 688, 694.  “To satisfy the performance prong, a claimant must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed ․ by the Sixth Amendment.’  “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687.   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 omissions were so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment, and as a result, he was deprived of a fair trial.  Harris v. Commissioner of Correction, 107 Conn.App. 833, 845–46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).

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.”  (Internal quotation marks omitted.)  Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).

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 ․” Strickland v. Washington, supra, 466 U.S. 689.   The United States Supreme Court explained:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.

(Citation omitted.)  Id., 689.

Ultimately, “[t]he 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.”  Strickland v. Washington, supra, 466 U.S. 686.

“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ․ If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ․ that course should be followed.”  Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989), citing and quoting Strickland v. Washington, supra, 466 U.S. 697;  King v. Commissioner of Correction, 73 Conn.App. 600, 602–03, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003) (“Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong”).

II. Direct appeal

The petitioner raised a claim of ineffective assistance on direct appeal from his criminal conviction premised on the failure to cross examine witnesses about the financial reward.  State v. Taft, 306 Conn. 749, 767, 51 A.3d 988 (2012).  “The [petitioner] claim[ed] that, because the trial court specifically found that the [petitioner] was aware of the reward money available to the witnesses who contributed to the conviction of those involved in the victim's murder, his counsel's failure to cross examine A, B and C about their expectations regarding that reward money was ineffective as a matter of law.   See Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir.2006) (‘[C]ounsel's performance was constitutionally ineffective regardless of the extent of her knowledge of [the witnesses'] awareness of the reward, and of their financial motivations ․ Whether she had direct or specific knowledge of their awareness of the reward, or whether she knew only in the most general sense of such a possibility, her failure to investigate the matter more fully, given the information she possessed, rendered her performance deficient.’).   Furthermore, the [petitioner] claim[ed] that his counsel was ineffective as a matter of law because he failed to cross examine E, a ‘jailhouse snitch,’ regarding the fact that, under oath during [codefendant] Zapata's trial, E had recanted the statement that he had provided to the police inculpating both the defendant and Zapata.”  State v. Taft, supra, 306 Conn. 768–69.

In the petitioner's appeal, the Supreme Court declined to address this claim on the merits because “[t]he record d[id] not ․ reveal the extent to which the [petitioner's] trial counsel was aware of the reward money or the recanted statement or the efforts that he had undertaken to investigate those matters, and whether, and to what extent, he chose not to pursue those questions during cross examination.  [The Supreme Court] therefore conclude[d] that the record [was] inadequate for review of both of the [petitioner's] claims of ineffective assistance of counsel.   Accordingly. ‘[the Supreme Court did] not review at [that] time ․ the [petitioner's] ineffective assistance claim[s] that he contend[ed][are] adequately supported by the record ․ [The Supreme Court] believe[d] that his ineffective assistance claim[s] should be resolved ․ after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.’  State v. Leecan, [198 Conn. 517, 542, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986) ].”  State v. Taft, supra, 306 Conn. 769.

III. Failures to investigate

The petitioner alleges in paragraphs (7)(c) and (d), respectively, that Attorney Skyers failed to make adequate investigation into the state's offer of a reward and failed to make adequate investigation into the testimony of witnesses at the trial of the petitioner's co-defendant, which trial occurred prior to the trial of the petitioner.

Errol Skyers, who was the petitioner's trial counsel, was an experienced criminal trial lawyer, who had tried more than a dozen jury trials for serious criminal charges and represented defendants in another five cases that did not go to trial.   Attorney Skyers knew how to prepare a case for trial.   He testified that he would speak with his clients, review statements and reports, and visit the scenes of the crime as part of his due diligence.   He would also speak with his clients in order to narrow the scope of any defenses and to ascertain what the truth was likely to be.   Attorney Skyers spoke with Attorney O'Reilly, the co-defendant's trial counsel, in order to prepare for the petitioner's trial.

Attorney Skyers investigated the petitioner's case and reviewed relevant portions of the codefendant's trial transcripts.   An area that Attorney Skyers focused on was the $50,000 reward announced by the Governor in 2002, the year following the shooting on September 28, 2001.   The codefendant's trial occurred in the spring of 2007, and witnesses who were going to testify at the petitioner's trial in the fall of 2007 had testified about the events at issue and were questioned by Attorney O'Reilly about the reward.   According to Attorney Skyers, his investigation, which included a review of relevant portions of the co-defendant's trial and discussions with Attorney O'Reilly, led him to conclude that the reward was not a fertile ground to explore on cross examination.   Furthermore, Attorney Skyers was concerned that the state would rehabilitate the witnesses on redirect and that any advantage gained on cross examination, if any was gained at all, would be negated and also potentially open the door to areas damaging to the defense.

Both the petitioner and Attorney Skyers were aware of the reward and of the potential of individuals to receive a portion of the reward.   The reward even presented an area of contention between them prior to trial.   In August 2007, one month before the petitioner's jury trial, the petitioner sought to have Attorney Skyers dismissed as counsel premised in part on his assertion that Attorney Skyers had not investigated the defense case properly, including the issue of reward money.   The petitioner, however, withdrew the motion to dismiss counsel prior to trial.

In this matter, after speaking with the co-defendant's counsel, Attorney Skyers did not adjust his trial strategy, which was that the petitioner was not involved in the crime, and that his mere presence did not indicate that the petitioner was involved in a conspiracy to rob and kill the victim.   As part of his defense strategy, Attorney Skyers attempted to demonstrate that the law allows a person to be present and not participate in a crime, but in the event a crime occurs and people start to run, it is reasonable for the petitioner to do the same.

The petitioner presented Attorney Jeffrey Kestenband as an expert witness at the habeas trial.   Attorney Kestenband testified that Attorney Skyers should have obtained and reviewed the entire trial transcripts from the co-defendant's trial and not merely speak with the co-defendant's trial counsel, Attorney O'Reilly.¹  As a result, in Attorney Kestenband's opinion, Attorney Skyers provided deficient performance.   Attorney Kestenband did not provide, however, any evidence as to how the petitioner was prejudiced as a result of any purported deficient performance or that there was a “reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.”  (Internal quotation marks omitted.)  Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 799, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom.  Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).

The credible evidence presented to this court shows that Attorney Skyers was aware of and investigated the reward.   He spoke with counsel for the co-defendant and reviewed relevant portions of the co-defendant's criminal trial transcripts.   After these efforts, Attorney Skyers made an informed tactical decision not to pursue a line of questioning that had already proved to be unfruitful in the co-defendant's trial.   Further buttressing Attorney Skyers's tactical decision was the very reasonable concern of opening the door to additional questioning by a highly experienced and effective state's attorney on redirect to rehabilitate the witnesses.

“The burden to demonstrate the benefit of additional investigation is on the petitioner.  Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).”  Morris v. Commissioner of Correction, 131 Conn.App. 839, 846, 29 A.3d 914, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).   See also Leatherwood v. Commissioner of Correction, 105 Conn.App. 644, 646, 938 A.2d 1285, cert. denied, 286 Conn. 908, 944 A.2d 979 (2008).   The petitioner here has not shown any benefit of additional investigation.   The court concludes, based upon the foregoing, that Attorney Skyers did not perform deficiently and that the petitioner has failed to prove any prejudice.   The court lastly notes that the Reynoso v. Giurbino case cited by the Supreme Court in the petitioner's direct appeal is distinguishable.   In Reynoso, the defense counsel failed to investigate issue of the reward regarding the only two eyewitnesses, and was unaware that they knew about the reward as well as that both had inquired about their eligibility for the reward.  Reynoso v. Giurbino, supra, 462 F.3d 1111.   Defense counsel in Reynoso was aware of such information pertaining to other witnesses, used it during the criminal trial, and testified that she would have also done so with the only two eyewitnesses had she known.  Id. In the present matter, there were multiple witnesses placing the petitioner and his co-defendant at the scene.   The petitioner's defense strategy was premised on his being at the scene but showing he was not involved in a conspiracy or the shooting itself.   Stated somewhat differently, the present case is distinguishable from Reynoso based on the totality of the evidence in the petitioner's case, which was much stronger than that in Reynoso.   There is no dispute that the petitioner was present at the scene of the crime, whereas in Reynoso only the two eyewitnesses (who were both questionable and were not questioned about the motivation a reward may have played) placed the defendant at the scene.   Accordingly, the court finds Reynoso to be inapposite to the petitioner's case.

IV. Failures to cross examine

The petitioner alleges in paragraphs (7)(a) and (b), respectively, that Attorney Skyers failed to cross examine the state's witnesses concerning a reward which had been offered in the case and to cross examine a state's witness regarding the fact that, under oath, during the co-defendant's trial, he had recanted the statement that he had provided to the police inculpating both the petitioner and the co-defendant.

How defense counsel conducts cross examination is a matter of defense strategy and presumed to be reasonable and sound, albeit rebuttable through an affirmative showing with credible evidence that proves the contrary.   See, e.g., Green v. Commissioner of Correction, 119 Conn.App. 348, 359, 987 A.2d 389, cert. denied, 296 Conn. 905, 992 A.2d 1135 (2010).   The Strickland prejudice prong requires presenting evidence that shows that had defense counsel cross-examined differently or further, that “there is a reasonable probability that the outcome of the trial would have been different.”   Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).

The petitioner alleges, in paragraph (7)(a), that Attorney Skyers was deficient in his performance because he failed to cross-examine three of the state's main witnesses regarding the issue of their receiving a reward for their testimony leading to the petitioner's conviction.   Attorney Skyers testified that he was well aware of the reward these three witnesses would receive for their testimony, but decided that it would be in the petitioner's best interest if he did not do so.   Attorney Skyers testified that the reason for not cross examining these witnesses was based on his knowledge of the co-defendant's trial, where the Attorney O'Reilly had already attempted to do the same without success.   Attorney Skyers also testified that he was well acquainted with the state's attorney Satti and knew that, if he attempted to question the witnesses regarding the reward, state's attorney Satti would have presented other motives for their testimony, one of which was a threat made by the co-defendant against the witnesses for testifying, which would not have been favorable to his client, apparently because of the petitioner's association and relationship with the co-defendant, Miguel Zapata.

The petitioner's expert Attorney Kestenband opined that Attorney Skyers was deficient in his performance as trial counsel because he failed to cross examine three of the state's witnesses regarding the reward that they shared in leading to the petitioner's conviction.   In Attorney Kestenband's opinion, Attorney Skyers should have done so for impeachment purposes and to show bias for their testimony.   Attorney Kestenband also testified that Attorney Skyers should have obtained and reviewed the entire trial transcripts from the co-defendant's trial and not merely speak with the co-defendant's trial counsel, Attorney O'Reilly.²  As a result, in Attorney Kestenband's opinion, Attorney Skyers provided deficient performance.   Again, however, Attorney Kestenband did not provide any evidence as to how the petitioner was prejudiced as a result or that there was a “reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.”  (Internal quotation marks omitted.)  Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 799.

Turning to the last alleged failure, in paragraph (7)(b), to cross examine Germaine O'Grinc regarding his prior inconsistent statement, namely a recantation, the court concludes that Attorney Skyers did not perform deficiently.   First, recantations are subject to skepticism.   See, e.g., Gould v. Commissioner of Correction, 301 Conn. 544, 575, 22 A.3d 1196 (2011).   Second, use of the recantation by Attorney Skyers would permit state's attorney Satti to have introduced into evidence the prior consistent statement.   Even had the prior consistent statement not been offered and entered into evidence, state's attorney Satti credibly testified that he would have used redirect to underscore the petitioner's prior history with O'Grinc.   Attorney Skyers' strategy was to highlight that the petitioner was in the cell with O'Grinc and Zapata and was not an active participant in their conversation.   That is, Attorney Skyers attempted to show that the petitioner did not make any incriminating statements.   This is the kind of prototypical tactical decision in which defense counsel is given wide latitude and is infused with a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ․” Strickland v. Washington, supra, 466 U.S. 689.   This presumption may, of course, be rebutted.   The petitioner here has neither shown that Attorney Skyers' performance was deficient nor has he shown that he was prejudiced by undermining this court's confidence in the outcome of the criminal trial.

V. Defense counsel's “concession”

The petitioner's final allegation, in paragraph (7)(e), of ineffective assistance by Attorney Skyers is that he conceded the petitioner's involvement in the crime during final argument.   The court agrees with the respondent's description in the post-trial brief of the arguments at issue.   The petitioner takes Attorney Skyers' argument out-of-context.   After summarizing the evidence showing that there were about five or six people standing by the victim's vehicle, Attorney Skyers argued that there were many onlookers including the petitioner.   The specific argument focused on by the petitioner, seen in the proper context, was an integral part of a broader argument that the petitioner and several other individuals were present and merely observers.   The only concession in this argument was that the petitioner was present, which was consistent with the defense strategy of showing the petitioner's presence, but non-involvement.   This last claim must, therefore, also fail because there was no deficient performance by Attorney Skyers during his closing argument.

CONCLUSION

Based upon the foregoing, the court concludes that the petitioner has failed to prove the claims raised in the amended petition.   Accordingly, judgment shall enter for the respondent on the petition for a writ of habeas corpus.   Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.

It is so ordered.

Kwak, J.

FOOTNOTES

FN1. The court assigns no weight whatsoever to Attorney Kestenband's testimony and opinion that Attorney Skyers should have obtained and reviewed the co-defendant's criminal trial transcripts in their entirety.   Attorney Kestenband acknowledged on cross examination that he also had not reviewed all the transcripts at issue..  FN1. The court assigns no weight whatsoever to Attorney Kestenband's testimony and opinion that Attorney Skyers should have obtained and reviewed the co-defendant's criminal trial transcripts in their entirety.   Attorney Kestenband acknowledged on cross examination that he also had not reviewed all the transcripts at issue.

FN2. As previously noted, the court assigns no weight to Attorney Kestenband's opinion that trial counsel should have reviewed the entirety of the co-defendant's trial transcripts, as Attorney Kestenband himself did not review them.   Additionally, there is no indication that Attorney Kestenband spoke with either Attorneys Skyers or O'Reilly, which further weakens any opinion rendered about their investigations, strategies, decision making, etc..  FN2. As previously noted, the court assigns no weight to Attorney Kestenband's opinion that trial counsel should have reviewed the entirety of the co-defendant's trial transcripts, as Attorney Kestenband himself did not review them.   Additionally, there is no indication that Attorney Kestenband spoke with either Attorneys Skyers or O'Reilly, which further weakens any opinion rendered about their investigations, strategies, decision making, etc.

Kwak, Hunchu, J.