George Andino v. The Warden, State Prison (2013)

DECISION

This is the habeas petition filed by the petitioner George Andino, III, for ineffective assistance of counsel.   It's brought against trial counsel, Attorney Claude Chong, for the reasons that he failed to adequately cross examine, impeach and otherwise challenge a number of state's witnesses, and he failed to adequately present the testimony of the petitioner.

The court has heard testimony today from several witnesses, including the petitioner and has reviewed a number of exhibits that were entered into evidence.

The United States Supreme Court has recognized in Strickland v. Washington, 466 U.S. 668, that the Sixth Amendment right to counsel exists and is needed in order to protect the fundamental right to a fair trial.   A convicted defendant's claim that counsel's assistance was so defective as to require a reversal of the conviction has two components:  First, the defendant must show by a fair preponderance of the evidence that the counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed to a 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 the defendant makes both showings, it cannot be said that the conviction resulted from the breakdown in the adversary process that renders the result unreliable.   The performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.   Judicial scrutiny of counsel's performance must be highly differential.   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 to examining counsel's defense after it has proved unsuccessful to conclude that a particular act or omission of counsel was unreliable.   Thus, a court must judge the reasonableness of counsel's challenged conduct and the facts of the particular case viewed as of the time of the counsel's conduct.   The petitioner 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 that 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 and professional judgment.

Under the second prong of the test an 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.   Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.   Representation is an art and an act—act or omission that is unprofessional in one case may be sound or even brilliant in another.   It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.   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.   An assessment of the likelihood of result—other result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, nullification and the like.   The court must consider the totality of the evidence before the judge or a jury.

Under holding in Hall the Commissioner of Correction 124 Conn.App. 778 (2010) case, a reviewing court may look to the performance prong or to the prejudice prong and the petitioner's failure to prove either is fatal to a habeas petition.

And as to an attorney's performance in the trial, there is a strong presumption that the trial strategy employed by the criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment.   And I'm quoting Saunders v. Commissioner of Correction, 137 Conn.App. 493 (2012).   An attorney's line of questioning of a witness is a tactical decision.   As such, this court will not in hindsight second guess counsel's trial strategy.   The fact that counsel arguably could have inquired more deeply into certain areas or failed to inquire at all in—into areas of claimed importance falls short of establishing deficient performance.   And I'm also citing Velasco v. Commissioner of Correction, 119 Conn.App. 164 (2010).

Cross examination is a sharp two-edged sword and more criminal cases are won by not cross examining adverse witnesses or by a very selective and limited cross examination of such witnesses than are ever won by demolishing a witness on cross examination.   The decision whether to cross examine a witness is particularly one for defense counsel and its judgment should be entitled to great respect by the court.   And I'm citing State v. Clark, 170 Conn. 273 (1996).

Even though a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of alleged deficiencies, the court has not heard any evidence today that would undermine the presumption that Attorney Chong's strategy was reasonable and was a result of the exercise of professional judgment.   Therefore, the court does not find that Attorney Chong's performance was deficient.

Additionally, while the court need not make a determination as to the prejudice prong in this case, the court would like to briefly discuss a second prong.

In this case there was overwhelming evidence to convict the petitioner of the charges that were brought against him:

There were testimonies of the complainant Z, Z's mother, E, and Z's friend, K.

There were videos of both E and Z engaging in the crushing behavior under the direction of the petitioner whose voice was identified by Z and E.

There was the bat with the rodent hair and Z's DNA on it.

There was evidence from the computer and there was petitioner's own testimony in the form of a letter basically admitting to some of the charges.

Faced with this overwhelming amount of evidence even if the trial counsel's representation were deficient, which this court does not find, the petitioner has failed to prove that he was prejudiced as a result.

Therefore, the petition is denied.

Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.

And let the record reflect that the petitioner will be provided the appropriate forms regarding his right to an appeal.

Okay. Thank you.   Court's adjourned.

Kwak, J.

Kwak, Hunchu, J.