327845 v. Warden (2013)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner was the defendant in a matter pending in the Waterbury Judicial District under docket numbers CR08–0376003 and CR08–0376004.   At all times relevant to the claims in this petition, he was represented by Attorney Raymond Kotulski at the trial level.   Following failed pretrial discussions, both files were consolidated for trial, wherein the petitioner was charged with two counts of conspiracy to commit robbery first degree, pursuant to General Statutes §§ 53a–134(a)(2) and 53a–48.¹  A jury found the petitioner guilty of both counts on January 11, 2010, and he was sentenced by the court, Schuman, J., on March 26, 2010, to serve ten years incarceration, followed by ten years special parole, on each count;  those sentences to be served concurrently with each other, for a total effective sentence of ten years to serve, followed by ten years of special parole.   Represented by Attorneys Joseph A. Jauman and John C. Drapp, III, the petitioner directly appealed his convictions, which were affirmed in State v. Brown, 132 Conn.App. 251, 31 A.3d 434 (2011), cert. denied, 303 Conn. 922, 34 A.3d 396 (2012).

The petitioner commenced the present action by filing a petition for writ of habeas corpus on February 8, 2011.   Following the appointment of counsel, an amended petition asserting two claims of ineffective assistance against the petitioner's criminal defense counsel was filed on May 10, 2013.   The petitioner filed a return generally denying the claims in the petition on June 3, 2013, and the matter was tried to the court on August 7, 2013.   The first count of the petition originally asserted claims of ineffectiveness distinctly titled “a” through “h,” however, the petitioner withdrew the claims contained in paragraphs “a” through “c,” and “f” prior to the start of evidence.   Count two alleged that defense counsel had failed to properly represent the petitioner with respect to his duties to convey and explain pretrial plea agreements, however, that claim was conceded by the petitioner in his post-trial brief for lack of evidence.²  Additional relevant procedural history will be referenced within the body of this decision where necessary.

II. Law and Discussion

“[The United States Supreme Court] has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.”  Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled.”   (Internal quotation marks omitted.)  Id., 685.  “The 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.”  Id., 686.

“A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.”  Id., 687.  “[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.”   Id., 688.  “Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”   Id., 689.  “Thus, a court ․ must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.  [The defendant] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.   The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.   In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.   At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Id., 690.

Under the second prong of the test, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”  Id., 691.  “[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.”  Id., 693.  “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.”  Id. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”   Id. “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id., 694.  “An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.”  Id., 695.   The court “must consider the totality of the evidence before the judge or jury.”  Id. “In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner's failure to prove either is fatal to a habeas petition.”  (Internal quotation marks omitted.)  Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

Of the remaining claims, the petitioner first alleges that his defense counsel was ineffective for referring to the petitioner's signed statement as the “confession,” when the petitioner's claim at trial was that the document was an unknowing and false statement that he had been pressured into signing by the police.   More specifically, the petitioner presented evidence that defense counsel would intermittently during examination of witnesses in the criminal trial refer to the document signed by the petitioner as a “confession.”   The petitioner claimed during his habeas testimony, as he did during his testimony at the criminal trial, that he was physically assaulted and pressured by the police into signing the statement, that he did not read, nor was he aware of any of the details contained within the statement before signing it, and that defense counsel's reference to this document as a “confession” undermined the credibility of his claims.

It is not necessary for the court to address the matter of counsel's performance, because the petitioner has failed to establish that he was prejudiced during his criminal trial.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.   First, and despite his attempts to claim otherwise, the petitioner confessed to the crimes in question in a written statement provided to the police.³  The court found the petitioner's claims of police intimidation and physical abuse unsupported by any credible evidence and, based on the credible testimony of defense counsel that he had never heard any such claims from the petitioner before this information came out during his cross examination at the criminal trial, likely a fabrication the petitioner came up with immediately before, or during, his criminal trial testimony.   In the present case, it was not counsel's representation, but the petitioner's feeble, contradictory and patently fabricated claims, when compared to the state's overwhelming evidence, that was his biggest problem.

By way of example, the petitioner, a man who had admittedly done prison time in the past, offered the rather ridiculous explanation that he did not want his fiancée to be “harassed” as the basis for his failure to advise the police that she could provide him with a solid alibi immediately after being arrested, or asking her to contact the police.   Also, although he continued to insist that he had no idea that the general subject of the statement he signed dealt with two robberies, let alone the specific details of the incidents, his initials appear at the top and bottom of each paragraph, he accurately describes the clothing worn by his co-accused Lonnie Cross at the time of the robbery, clothing that Cross was not wearing at the time the police arrested him, and he accurately described the details of each robbery, including the victim from the second robbery chasing the getaway car down the street.   Finally, in support of his claims of police assault and intimidation, the petitioner claimed that he began crying immediately before being “forced” to execute the statement, telling the police that they were putting his life in danger out on the streets.   However, when asked on cross examination during the criminal trial how he could have been in fear of his life if, as he claimed, he had never read the statement before signing it and was not aware that it implicated his co-defendants in criminal conduct, the petitioner provided a feeble, rambling and unbelievable explanation that he just assumed that the police were trying to get him to implicate Cross in “something” because the police had also showed him photo line-ups of his co-conspirators.⁴  When asked what he thought the purpose of the police having him identify his co-conspirators out of photo lineups, the petitioner's less than believable response was that he believed the police were only asking if he knew them, as opposed to identifying the two other people he had named in the confession as being involved in the robberies.   Later during cross examination, the petitioner finally admitted that he knew that his statement said “something” about his co-conspirators and implicated them in “something,” but continued to deny that he had any idea what those “somethings” were until he received a copy of the statement from his attorney.   Finally, there was the petitioner's claim during direct examination in the criminal trial that one of the detectives had beaten him in the head with an 8oz water bottle and kicked or kneed him in the ribs in order to force him to sign the written statement.   This was a claim the petitioner made for the first time during cross examination by the State's Attorney, and he offered no believable reason to the jury, or before this court, as to why he failed to bring such a serious claim forward in a complaint to the police, at any pretrial hearing during the pendency of the criminal case, in the letter he wrote to the pretrial judge shortly before trial,⁵ or on direct examination by his attorney.

In short, it was clear from reviewing the transcripts of the petitioner's trial testimony that every time the same or similar question was posed to him, he would attempt to embellish the facts more and more in his favor.   Further, having had the opportunity to listen to the petitioner testify to all of the claims above in person during the habeas trial only served to affirm for this court what the jury at the criminal trial likely found, which was that the petitioner's claims lacked any scintilla of credibility.   Based on the foregoing, the petitioner has failed to prove that there is any probability that there would have been a more favorable outcome had his defense counsel avoided referring to the written statement as a “confession.”   As such, his claim fails.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The petitioner's next claim is that defense counsel was deficient for failing to properly prepare him to testify at trial.   Like the claims above, the court finds that the petitioner's claim lacks credibility.   The court credits the testimony of defense counsel that he reasonably prepared questions for the petitioner and met with the petitioner to prepare and discuss his potential testimony.   Again, as stated above, the petitioner's problem was not defense counsel's preparation, but the fact that the petitioner's testimony was simply not believable.   Alternatively, this court finds that there is no reasonable probability that any of the new or additional information the petitioner claims should have been presented by defense counsel at the criminal trial would have resulted in a more favorable outcome.   As such, the petitioner has failed to establish that counsel's performance was deficient or that he was prejudiced, and his claim fails.  Id.

The petitioner's only remaining claim to be addressed on its merits is that defense counsel was deficient for failing to have a letter written by the petitioner to the court (See Exhibit 11) admitted as a full exhibit after the State's Attorney questioned the petitioner about certain contents of the letter on cross examination.   This claim also fails, because the petitioner has failed to establish prejudice.  Id.

The letter referred to by the petitioner does not contain anything that could remotely be seen as having had the ability to overcome, or to even slightly undermine, the overwhelming evidence of guilt the state had against the petitioner, not the least of which was his own detailed confession, so as to undermine this court's confidence in the verdict.  Strickland v. Washington, supra, 466 U.S. 686.   The letter in question was purely self-serving and did not contain anything directly related to the trial or the evidence against the petitioner.   In fact, as pointed out by the State's Attorney on cross examination during the criminal trial, and this court agrees, the most glaring aspect of this letter is what it does not contain—no claim that the petitioner was coerced, intimidated or physically beaten into signing the confession;  no claim that he had an alibi for the time of the crime;  and no claim that he was not aware of the contents of the confession in which he implicated himself and his co-conspirators in two armed robberies until he received a copy of it from his lawyer.   The petitioner's claim fails, because he has not established prejudice.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus is DENIED.   Judgment shall enter for the respondent.

Counsel for the petitioner shall prepare and submit a judgment file to the clerk within thirty (30) days.   Notwithstanding, however, if either party wishes to appeal this judgment, or any part hereof, all necessary appellate forms and notices shall be filed within the time-frames set forth in applicable Practice Book and statutory sections.

Hon. John M. Newson

FOOTNOTES

FN1. General Statutes § 53a–134.   Robbery in the first degree:  Class B felony.(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a–133 or of immediate flight therefrom, he or another participant in the crime:  ․ (2) is armed with a deadly weapon ․(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.General Statutes § 53a–48.   Conspiracy.  Renunciation.(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose..  FN1. General Statutes § 53a–134.   Robbery in the first degree:  Class B felony.(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a–133 or of immediate flight therefrom, he or another participant in the crime:  ․ (2) is armed with a deadly weapon ․(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.General Statutes § 53a–48.   Conspiracy.  Renunciation.(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

FN2. As such, this claim is considered to have been abandoned and is dismissed.  Solek v. Commissioner of Correction, 107 Conn.App. 473, 480–81, 946 A.3d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008)..  FN2. As such, this claim is considered to have been abandoned and is dismissed.  Solek v. Commissioner of Correction, 107 Conn.App. 473, 480–81, 946 A.3d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).

FN3. Exhibit 12, Statement of Antwon Brown dated 11/12/08..  FN3. Exhibit 12, Statement of Antwon Brown dated 11/12/08.

FN4. On re-direct examination, the defendant testified that when the statement was placed in front of him and the police were trying to force him to sign it, he began to cry and said, “you're putting my life in danger now ․ These dude ․ he has a lot of dangerous friends.   And if this get to the street that I lied in a confession, saying these things about [co-conspirator Lonnie Cross], I'm liable to get hurt out there on them streets.”   Exhibit 18, Transcript, State v. Brown, January 21, 2010, p. 111.   When questioned about the obvious inconsistency between his claimed lack of any knowledge of the contents of the statement he signed and his claim that he pleaded with the police that they were putting him in danger by forcing him to lie on Lonnie Cross, the petitioner, once again, provided no credible answer.   Exhibit 18, p. 120–22..  FN4. On re-direct examination, the defendant testified that when the statement was placed in front of him and the police were trying to force him to sign it, he began to cry and said, “you're putting my life in danger now ․ These dude ․ he has a lot of dangerous friends.   And if this get to the street that I lied in a confession, saying these things about [co-conspirator Lonnie Cross], I'm liable to get hurt out there on them streets.”   Exhibit 18, Transcript, State v. Brown, January 21, 2010, p. 111.   When questioned about the obvious inconsistency between his claimed lack of any knowledge of the contents of the statement he signed and his claim that he pleaded with the police that they were putting him in danger by forcing him to lie on Lonnie Cross, the petitioner, once again, provided no credible answer.   Exhibit 18, p. 120–22.

FN5. Exhibit 11..  FN5. Exhibit 11.

Newson, John M., J.