Kenneth J. Otto, Sr. v. Warden, State Prison (2013)

MEMORANDUM OF DECISION

The petitioner, Kenneth J. Otto, Sr., seeks habeas corpus relief from convictions for murder and two counts of tampering with evidence.   He was convicted following a jury trial and serves a total, effective sentence of sixty years imprisonment.   His conviction was affirmed on direct appeal, State v. Otto, 305 Conn. 51 (2012).   He now contends that his criminal defense counsel, Attorneys Edward Gavin and Moira Buckley, and his appellate counsel, Attorney Adele Patterson, provided him with ineffective assistance.

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.

If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence.  Pelletier v. Warden, 32 Conn.App. 38, 46 (1993).   In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.  Levine v. Manson, 195 Conn. 636, 640 (1985).   Reasonable probability means a probability sufficient to undermine confidence in the verdict.  Daeira v. Commissioner, 107 Conn.App. 539, 542–43 (2008), cert. denied, 289 Conn. 911 (2008);  that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt.  Id.

Trial Counsel

The petitioner specifically alleges that Attorneys Gavin and Buckley rendered deficient legal representation by inadequately cross examining prosecution witnesses Donald Olson, Lucinda Lopes, and Albert Harper;  by failing to present evidence regarding the discovery of a .40 caliber Smith and Wesson handgun which lacked its barrel;  and by failing to present the testimony of Tyshon King. The court makes the following findings of fact and rulings of law.

The police executed a search warrant for the petitioner's real property located in Stafford Springs.   On that property was a fire pit which had recently been used.   In the pit, the police found and seized charred, human remains, including a foot.   These remains were later identified, using DNA analyses, as those of the victim Shamaia Smith.   Certain personal possessions of the victim were also recovered from the pit.   The police discovered spent .40 caliber shells in or near the pit.

At a later date, the petitioner agreed to turn over to the police the contents of a gun safe.   That consensual search produced, among other things, a .40 caliber semiautomatic handgun which lacked its barrel.   When questioned about the missing barrel, the petitioner told East Hartford Police Investigator Donald Olson that he had lost it.

Investigator Olson prepared the inventory which listed the .40 caliber weapon, but he neglected to mention the absence of the barrel on that form.   The petitioner argues that his trial counsel ought to have cross examined Olson about this “discrepancy.”   The inventory form was never adduced at the criminal trial.

Present at the consensual search of the gun safe was the petitioner and his lawyer, Attorney Richard Brown.   Attorney Brown testified at the habeas hearing that, indeed, the .40 caliber pistol seized from the gun safe lacked its barrel.   In other words, Olson's testimony at the criminal trial on this point corresponded to that provided to Attorney Gavin by Attorney Brown.   Also, the petitioner, himself, told the same story regarding the missing barrel to his defense counsel.   Whether Olson's omission of the imperfect state of the weapon was oversight or brevity, the failure to mention the missing barrel on the inventory form was trivial, given the acknowledgment by all witnesses to the opening of the gun safe that the barrel was missing.

Cross examining Olson about the missing words on the form would have necessarily reemphasized the missing barrel, a very suspicious circumstance.   The best that could have been achieved was to ascribe a very minor error of omission to Olson.   A far worse consequence would have been to undermine the defense theory of lack of knowledge evidenced by the petitioner's cooperation by making that cooperation appear contrived and designed to conceal evidence rather than produce it.

It should also be noted that the prosecution's forensic evidence at trial demonstrated that the .40 caliber shell casings found in the fire pit were fired from the petitioner's .40 caliber Smith and Wesson despite the absence of a barrel for testing.   The identifying marks on the casings were made by the parts of the weapon which were recovered so that the lack of a barrel was immaterial to the forensic identification process.   Competent counsel avoids attacking inconsequential discrepancies and opening the evidentiary door to allow reiteration of damaging testimony by the prosecutor.

Next, the petitioner submits that his defense counsel were ineffective by eliciting, during cross examination of a prosecution expert, Albert Harper, an opinion that the victim's body was cremated in order to destroy evidence of the homicidal manner of her death.   Harper was a forensic anthropologist consulted by the medical examiner's office for this case.   Harper did, indeed, express such an opinion in response to questioning by defense counsel, but that colloquy must be placed in context.

Medical examiner McDonough had just completed his testimony in which he conceded, during cross examination, that it was impossible for a pathologist to determine the cause or manner of death of the victim.   McDonough had consulted Harper, whose expertise was in the examination of human remains, but that consultation failed to provide an answer to these questions.

On direct examination of Harper, the prosecutor never inquired with respect to cause or manner of death.   On cross examination, defense counsel brought out that Harper's forensic investigation of the remains disclosed no evidence of death by gunshot, drug overdose, suicide, or natural causes.   Defense counsel further elicited from Harper that he could render no opinion as to cause or manner of death based upon “the physical remains.”

The following dialogue ensued:

Question:  Or even the location of her death.   I know the remains were recovered ․

Answer:  Yes, yes, I can offer an opinion,

Question:  Okay.

Harper then volunteered that, in his opinion, the deliberate cremation of the victim's corpse implied an attempt to conceal her death which, in turn, implied that her death was a homicide.   Upon further cross examination, Harper acknowledged that this inference was an exercise of common sense rather than an inference based on reasonable, scientific probability.

Because the medical examiner had eliminated the possibility of ascertaining the method of demise from her remains, defense counsel understandably thought that Harper would echo that opinion, which, ultimately he did.   Defense counsel deftly extracted from Harper the conjectural and nonscientific aspect of his statement regarding homicide.   The court determines that defense counsel's cross examination of Harper was not deficient in this regard.

The petitioner also alleges that defense counsel improperly cross examined Lucinda Lopes, a forensic technician from the State's crime laboratory.   Lopes testified on direct that she tested for blood several items recovered from the Stafford Springs property, including a six-foot by two-foot area rug.   She utilized a grid system in order to examine the entire front and back surfaces of this rug.   She observed that positive results for the presence of blood encompassed a four-foot by one-foot, contiguous section of grid squares in the center of the rug.   She used tape to outline this section of positive reaction.   The section was later retested for presence of human blood and also reacted positively.

During cross examination, defense counsel called the witness's attention to the outlined section of the rug by referring to that outline as resembling a body.   Lopes never employed that description.   Defense counsel's characterization of the blood-infused area in this manner was inappropriate, improper, and unnecessarily highlighted this negative circumstance.

However, little prejudice derived from that personal observation by defense counsel.   First, the jury had as exhibits photographs of the rug which depicted the outline of the areas which tested positive for blood.   Also, the rug itself was an exhibit and conspicuously displayed to the jury during the trial.   Neither expert witness nor the prosecutor adopted defense counsel's description.   No reference to the shape of the outlined area was made during argument.   Thus, the jury had ample opportunity to discern for themselves whether the area saturated with human blood resembled a body or not.   Therefore, the petitioner has failed to prove the prejudice prong of the Strickland test.   The court concludes that the passing comment never influenced the jury's determination of guilt.   The purported comment by defense counsel as to the shape of the stain was inconsequential in this case.

The petitioner also contends that his defense team ought to have called to testify the petitioner's initial lawyer, Attorney Richard Brown, who was present when the petitioner relinquished possession of the contents of his gun safe to the investigators.   Although the petitioner called Attorney Brown to testify at the habeas hearing, no testimony was adduced that Attorney Brown's testimony at his criminal trial was beneficial to the petitioner.   Attorney Brown's attendance at this search and seizure was presented through other witnesses at the criminal trial.

The petitioner seems to argue that his trial counsel should have called Attorney Brown to establish that he advised the petitioner to remain silent, but that the petitioner chose to cooperate with the police.   The court finds that Attorney Brown had little to add which would have helped the petitioner.   In fact, Attorney Brown's testimony may have been damaging to the petitioner because Attorney Brown could have corroborated the police version that the barrel of the .40 cal pistol was missing.   The failure to call Attorney Brown as a defense witness cannot form the basis for an ineffective assistance claim.

The final allegation of ineffective assistance by trial counsel is the failure to call Tyshon King as a defense witness.   The petitioner charges that his defense attorneys ought to have called King to testify that he saw the victim at a Walmart store on or about March 14, 2007, the last day she was seen alive by her family.   In a sworn statement, King indicated that he saw the victim at the store while she was shopping with “an older white guy in his forties.”

It eludes this court how this putative testimony would aid the petitioner in his defense.   The petitioner's general appearance matched King's description of the victim's escort.   Defense counsel's decision to refrain from presenting King as a witness seems eminently appropriate and within the bounds of competent representation.

The court concludes, therefore, that the petitioner has failed to satisfy his burden of proving, by preponderance of the evidence, that his defense counsel rendered ineffective assistance.

Appellate Counsel

The petitioner also asserts that his appellate attorney provided substandard appellate representation by failing to raise as a ground of reversal the trial court's denial of a motion to suppress evidence obtained in execution of the March 23, 2007 warrantless search of the petitioner's Stafford Springs property.   Attorney Patterson testified at the habeas hearing that she thoroughly reviewed and researched the validity of that search.   The prosecutor had argued that the information learned as a result of that search was admissible based on the emergency exception to the warrant requirement and/or the inevitable discovery doctrine.

Attorney Patterson's research and review of the record demonstrated that the trial court's decision to admit the evidence derived from that search was factually supported and legally unassailable.   She made the tactical decision to omit this weak issue because success was improbable, it would detract from stronger issues, and the evidence obtained by that search played a very small part in the state's case against the petitioner.

At the habeas hearing, the petitioner produced no expert witness critical of this decision.   The court concludes that Attorney Patterson's reasoning fell well within the wide spectrum of acceptable professional representation by appellate counsel.   There is a presumption in ineffective assistance cases that counsel's tactical decisions embrace “sound trial strategy,” in the absence of contrary evidence, Streater v. Commissioner, 143 Conn.App. 88, 107 (2013).   Unsuccessful tactical decisions which are the result of the reasonable exercise of professional judgment still constitute effective assistance despite the unfavorable outcome, Stephen S. v. Commissioner, 94 Conn.App. 288, 296 (2006).   Therefore, the petitioner's allegation of ineffective assistance of appellate counsel also fails.

The amended petition is denied.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.