James Dixon v. Warden, State Prison (2014)

MEMORANDUM OF DECISION

The petitioner, James Dixon, seeks habeas corpus relief from a fifty-year prison sentence imposed upon him for committing the crimes of felony murder, attempted robbery first degree, conspiracy to commit robbery first degree, and carrying a pistol without a permit.   His convictions, secured after a jury trial, were affirmed on direct appeal, State v. Dixon, 72 Conn.App. 852 (2002), cert. denied, 262 Conn. 926 (2002).   The petitioner was tried jointly with a co-accused, Eddie Abernathy, State v. Abernathy, 72 Conn.App. 831 (2002), cert. denied, 262 Conn. 924 (2002).   The basis for the petitioner's claim for relief is that his criminal defense counsel, Attorney Donald O'Brien, 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.

In his posttrial brief, the petitioner specifies that Attorney O'Brien represented him deficiently by failing to elicit testimony at the criminal trial from Gloria Allen and Shamish Banks regarding their observations of the arrangement of the deceased's clothing when they saw the victim lying on the ground;  by failing to establish a proper foundation for admission of testimony of Banks under the residual exception to the hearsay exclusionary rule;  and by failing to lay a proper foundation for the impeachment of a coconspirator, Anthony Canon.   Gloria Allen, Shamish Banks, and Anthony Canon all testified at the criminal trial and at the habeas hearing.

This court's review of the pertinent evidence produced at the petitioner's jury trial shows that the Appellate Court aptly and adequately summarized the salient facts which formed the basis for the jury's verdict:

[T]he jury reasonably could have found the following facts.   On the evening of October 21, 1998, the defendant, Eddie Abernathy, Anthony “Tone” Cannon, Raymond “Flip” Hite, Michael Homes, Tamaika Easterling, Lacrisha Williams and others gathered at Tasheeka “Chicken” Contrelle's apartment, at 99 Wyllys Street in Hartford, where they drank liquor and smoked marijuana.   Later that evening, Homes led the defendant, Abernathy, Cannon and Hite into Contrelle's bedroom, shut the door and proposed that they commit a robbery.   After some discussion, the five men exited the bedroom and entered the kitchen, where they drank more liquor and smoked more marijuana.

A while later, at about 10 p.m., the defendant, Abernathy and Cannon left the party together.   The defendant had in his possession a small, chrome .25 caliber handgun, and Abernathy had in his possession a black, nine millimeter handgun.   The three men entered a black Honda Prelude, which Cannon had acquired earlier that day, and drove throughout Hartford, stopping to buy gasoline on Washington Street and to buy juice on Brook Street.   Thereafter, the three men, while driving on Green Street, saw a man, in the distance, walking in the middle of the road.   Abernathy, who was driving, drove the Honda to the side of the road, conversed briefly with the defendant and turned off the engine.   He then turned toward Cannon, who was in the backseat, handed him a mask and the black, nine millimeter handgun and told him to rob the man walking in the middle of the road.   Cannon accepted the handgun and put on the mask, and he and the defendant exited the Honda together.   As they approached the man, Cannon said, “What up?”   The man, Baze “Burt” Privette, recognized Cannon's voice and responded, “Tone?”

Cannon hesitated and asked Privette for a cigarette.   Privette replied that he did not have one.   Cannon then backed away from him, but the defendant, who had been standing to Cannon's right, did not.   Rather, he drew the chrome .25 caliber handgun, held it to Privette's head and ordered him to “run everything.”   He then grabbed Privette and led him into an alley nearby.   Halfway down the alley, the defendant shot Privette in the head, killing him.   He searched Privette's pockets and then ran out of the alley.   He and Cannon entered the Honda and told Abernathy what had occurred.   Abernathy ordered them to give him the mask and guns and to keep quiet.   The defendant and Cannon complied.   The three men then drove away, heading toward the vicinity of Capitol Avenue and Lawrence Street.

State v. Dixon, supra, 855–56.

Deceased's Clothing

The petitioner asserts that Attorney O'Brien ought to have asked Banks and Allen about whether the victim's pants pockets were pulled out when they first saw the victim lying prone in the roadway near their residences.   The petitioner argues that such evidence would have refuted the state's evidence that Cannon, Abernathy, and the petitioner had ventured out with firearms to commit a random robbery.   He contends that the real motive for shooting the victim was retaliation over a drug debt owed by the victim to Abernathy and that the victim was always the intended target.   Also, Cannon testified at the criminal trial that, after the petitioner shot the victim, he searched his pants pockets.   The petitioner laments Attorney O'Brien's failure to elicit testimony on the posture of the victim's pants pockets.   The court finds that this omission from the examinations of Allen and Banks did not prejudice the petitioner as he contends.

First, while Cannon did state at the jury trial that the petitioner searched the unconscious victim's pockets, Cannon never testified that those pockets were turned inside out.   Second, Hartford Police Officer Robert Allen testified that, when he turned over the victim's body to attempt to resuscitate him, he did not notice that the victim's pants pockets were pulled out.   The potential testimony of Gloria Allen and Banks concerning their observations, from a distance, would have been merely cumulative of Officer Allen's hands-on examination of the condition of the victim's clothing.   Finally, neither Allen nor Banks testified at the habeas hearing that they definitively saw whether the victim's pockets were inside out or not or even within their view at all.   In fact, Banks related, at the habeas hearing, that she really could not see the victim's pants pockets from her vantage point.

The petitioner's specification of ineffective assistance fails as to this allegation.

Victim's Statement to Banks

The petitioner next asserts that the victim had spoken to Banks during the afternoon preceding the night of his murder and informed her that he had recently had a dispute with Abernathy and Cannon at which a handgun was brandished.   The petitioner submits that admission of evidence of such a nature at his criminal trial, under the residual exception to the hearsay rule, would likely have affected the outcome of his trial.

However, the court finds that evidence of such a statement made by the victim to Banks is lacking.   At the criminal trial, the defendant attempted to introduce before the jury Bank's testimony that the victim had told her, on the day of his death, that he had an “argument with some kid.”   The trial court sustained the state's objection to this evidence, and that ruling was upheld on appeal, State v. Abernathy, supra, 849.   Furthermore, the Appellate Court noted:

The record discloses that the defendant, in his offer of proof, did not establish that there was a reasonable necessity for the admission of Banks' testimony concerning Privette's statement.   The defendant did not so much as argue that evidence of the same value could not be obtained from other sources.   Additionally, we cannot conclude, on the basis of the record that the circumstances surrounding Privette's statement established a motivational basis for truth telling equivalent to those associated with the traditional exceptions to the hearsay rule.   Accordingly, we conclude that the court did not abuse its discretion in declining to admit Banks' testimony under the residual exception to the hearsay rule.

The petitioner argues that Attorney O'Brien could have altered the trial court's ruling by asking Banks to explain that the victim was her best friend and confidant.   But Banks never testified that “the kid” referred to Cannon or Abernathy.   At the habeas trial, she denied ever knowing Cannon at all.   No other credible evidence was adduced at the habeas hearing to identify that unidentified young person with Cannon or Abernathy.

Cross Examination of Cannon

Similarly, no credible evidence was produced that Attorney O'Brien failed to cross examine Cannon regarding his relationship with the victim adequately.   At the habeas hearing, Cannon testified that he never saw the victim that day until just before the petitioner shot him.   That Cannon gave inconsistent statements as to whether he “knew” the victim for only a month or all his life is more about semantics than substance.   The judge finds that the proposed line of questioning of Cannon on this subject would have made no difference in the outcome of the criminal trial.

For these reasons, the amended petition is denied.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.