Hakim R. Jefferson v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

THE COURT:  I have reviewed the testimony, the exhibits, I've considered the arguments of counsel, I've reviewed the file, consulted the law, and for the following reasons the petition for a writ of habeas corpus is denied.

The first claim is that trial counsel was ineffective for failure to request a lesser included offense instruction on intentional manslaughter in the first degree with a firearm.

I find that counsel was not ineffective for failing or refraining from doing so.

First, the defendant was not entitled to a lesser included offense instruction on that offense.   The third prong of the Whistnant test requiring that there be sufficient evidence of intentional manslaughter was not satisfied.   The appellate court itself on page 581 said that, “The defendant's testimony is entirely inconsistent with his claim on appeal that when he shot the victim he possessed the specific intent to cause serious physical injury to the victim.   Therefore, we conclude that the evidence does not support an instruction on intentional manslaughter in the first degree with a firearm.”

I also find that the ․ Well, in supporting that decision is the fact that the petitioner in his testimony did not testify that he intended to cause physical injury to the victim.

I also believe that the fourth prong of the Whistnant test was not satisfied in that there is lacking a rational basis to acquit the defendant of murder and convict him of intentional manslaughter and that the evidence separating those two offenses was not sufficiently in dispute to justify a lesser included offense instruction.

Further, even if the defendant were arguably entitled to a lesser included offense instruction on this offense, I find that counsel was not deficient in refraining from requesting it.

The appellate court did say that for defense counsel it was a matter of strategy, and at the top of page 569 the appellate court states, “Defense counsel requested that he did not intend to request an instruction on the former crime, referring to intentional manslaughter, as he believed that there would be no practical advantage in arguing to the jury that the defendant possessed inconsistent mental states.”

Now, it's true we have not found transcript statements to support that finding of the appellate court, but clearly this was not an issue that was overlooked by trial counsel.   If you look at footnote 14 of the appellate court decision and the October 31St transcript at page 65, trial counsel was well aware of the issue of intentional manslaughter and he admitted during the charge conference that he did not think he could argue to this jury intentional manslaughter in the first degree.   So he was aware of that issue and that makes it essentially the only possible explanation that he decided not to as a matter of legal strategy, rather than just failure to consider the matter, overlooking it.

Further, as a matter of law, even without testimony from trial counsel, which we did not have in this case, counsel is not required to argue inconsistent defenses to the jury, and, therefore, it is a valid strategy not to do so.   That is especially true in this case.

Counsel had already put in the case, the defense of intoxication and the lesser included offense of reckless indifference to human life.   Arguing intent to cause physical injury would be inconsistent with these other defenses.   When you do that, there is always the risk that the jury will disbelieve all of them because they are inconsistent.

Further, here there was, again, no evidence that the petitioner had an intent to physically injure the victim.   The petitioner did not testify to that and the physical evidence of five gunshot wounds to the back does not support mere intent to cause serious physical injury.

The petitioner was probably better off arguing that it was reckless manslaughter because then if the jury ․ even if the jury did not believe his intoxication defense, they could find him guilty of reckless manslaughter, which the evidence of intoxication would still support.

In other words, these offenses were consistent with the petitioner's testimony, which is that he was scared, intoxicated and had clouded judgment.   Arguing these consistent defenses was a much better strategy than arguing inconsistent defenses.

Further, in this case, on closing argument, counsel asked the jury to convict on reckless manslaughter in the first degree.   See the November 3rd transcript at pages 21 to 22 and 36.

It would have upset defense counsel's entire strategy to argue intentional manslaughter with a firearm when he had asked the jury to convict on reckless manslaughter with a firearm.

In this case, petitioner's counsel is simply second guessing trial counsel's strategy with the benefit of 20/20 hindsight.   That is not the proper way to review counsel's performance.   So I find no deficient performance.

Further, I find that petitioner did not prove prejudice in that the petitioner did not prove that there was a reasonable probability that the jury would have acquitted on murder because of the presence of a lesser included, of a second lesser included offense.   This is especially true when the jury did not do so with the presence of one lesser included offense, reckless manslaughter, that better fit the evidence than the additional lesser included offense that counsel now proposes.   So I find no ineffective assistance on that first issue.

The second issue is that petitioner's trial counsel should have cross-examined Dr. Carver to bring out the fact that the gunshot wounds were consistent with the victim standing up.   He could have done so, but had he done so, then the state would inevitably have asked whether they were consistent with a person lying down, and Dr. Carver, based on his testimony last week, would have agreed with that.

Essentially, the additional testimony of Dr. Carver was neutral with regard to the position of the victim and would not likely have changed the result of this trial.   Further, raising the fact that the petitioner shot the victim two more times in the back is not something, as Mr. Pattis suggested, you certainly want to flag to the jury.   It may well have been prejudicial to the defendant's case.   I find no ineffective assistance of counsel on that issue.

The third issue, reviewing these in the order inwhich they're argued, is that counsel was ineffective in his cross-examination of Mr. Christopher Miller.   I disagree.

First, petitioner's counsel has not pointed out specifically what prior statements of Mr. Miller were inconsistent with his trial testimony, and upon review it is hard to see exactly what the petitioner's point is.

In the hearing in probable cause, Mr. Miller said he saw the incident through rear-view mirrors, or through a rear-view mirror of his car, saw the defendant standing over the victim and shoot twice.

Mr. Miller's testimony at trial was essentially consistent.   On three, at least three occasions he stated that he saw the incident through his rear-view mirror.   See Exhibit Three, pages 144, 147 and 164.   And then Mr. Miller stated that the defendant stood over the victim and fired twice.

So I find no significant inconsistency in the testimony, if any inconsistency at all.   In any event, trial counsel is not required to elicit every conceivable inconsistency.

The appellate court has stated in Velasco v. Commissioner of Correction, 199 Conn.App. 164, 172, cert. denied 2010, “An attorney's line of questioning on examination of a witness clearly is tactical in nature.   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 into areas of claimed importance, falls short of establishing deficient performance.”

Further, in this case, Mr. Merchant pointed out in closing argument that the petitioner's testimony at trial was not completely consistent with his statement to the police and asking the jury to understand that that sort of thing happens.   Although he argued it was substantially consistent, but not in every detail.

Bringing out a technical inconsistency in Mr. Miller's statement would have detracted from his argument, from trial counsel's argument to the jury that we should overlook any minor inconsistency in the petitioner's statements.   So there were strategic reasons for not bringing out any prior inconsistency that did exist.   I find no ineffective assistance of counsel on this claim.

The fourth claim involves the preparation for the petitioner's testimony.   Exhibit Five of the transcript, pages one to two, reveals Mr. Merchant to tell the court that he had reviewed Mr. Jefferson's options concerning his testimony with him and then Mr. Jefferson addressed the court and said that he had plenty of time to talk to Mr. Merchant about the matter of testimony and that Mr. Merchant had reviewed the matter very carefully with the petitioner.

It is inconceivable, given Mr. Jefferson's statements at the time, that this was just a reference to a discussion of his legal options and not reference to the subject matter of his testimony.

In fact, the petitioner thereafter testified quite thoroughly on the matter, testified that he had more than two beers that day and was smoking marijuana.   He said that he shot the victim because he was intoxicated and scared that the victim was going to get a gun or something was about to happen.   He denied intending to kill the victim.

So there's no showing of what benefit any additional preparation would confer.   There's no showing of deficient performance or prejudice on this claim.

The final claim in count one refers to sentencing, specifically the fact that the court did not hear from the petitioner's mother and the claim that Mr. Merchant was deficient in not asking her to testify or make a statement at sentencing.

The court learned fully of the mother's view that the petitioner had a difficult childhood, but, nonetheless, was helpful to other persons and had earned his GED. All of this information came out from an interview with the mother by the adult probation officer and which is contained in the PSI.

Having the mother speak at sentencing would have had no significant added benefit.   This information also came out from other people, in any event.

Mr. Merchant mentioned that in the neighborhood where the petitioner grew up, carrying guns was, unfortunately, common.   See Exhibit Seven, page 12.

The petitioner himself gave a compelling and even moving statement about his extremely difficult, rough and violent childhood in which he struggled with drugs, guns, violence and depression.   See pages 31 and 32 of the transcript.

Mr. Merchant also mentioned and introduced the psychiatric report from Dr. Zeman, stating that the petitioner had post-traumatic stress disorder and other psychiatric issues that essentially came from his upbringing and that might have mitigated his sentence.

So the evidence does not establish any additional benefit that calling the mother to make a statement at sentencing would have conferred on the petitioner.

The fact is in this case that prior to this crime the petitioner was found guilty of carrying a weapon, a gun, at age 16.   Coupled with the evidence of how the petitioner used a gun in this case, by shooting an unarmed victim in the back five times, and the fact that he was in possession of another gun and ammunition shortly after this incident, the evidence fully justified a sentence of at least 50 years.   This was a senseless and brutal killing and there was nothing reasonable that counsel could have done to get a better result.   So I find no ineffective assistance of counsel on this claim.

I now proceed to count two, which alleges ineffective assistance of habeas counsel.

I do believe that the respondent could have raised procedural default on this issue, in that the petitioner did not raise it, or raise, or at least litigate the trial-related claims in his first habeas petition.   See in that regard, Henderson v. Commissioner of Correction, 104 Conn.App. 557 at 570 (2007), which supports a claim of procedural default for failure to raise a claim in a prior habeas petition.

However, as I'll now detail, I would have found cause for not raising it because I do find that habeas counsel's performance was deficient on the prior habeas corpus petition.   As I will state later, however, I find no prejudice and, therefore, ultimately, reject this claim.   But I do believe that Ms. Salvatore rendered deficient performance.

Her August 1st letter to the petitioner is unclear as to whether she was asking whether the relief that the petitioner wanted with regard to his lost appeal and sentence review was to have those procedures reinstated, or, on the other hand, she was asking are those the only two issues you want to pursue.

The petitioner reasonably interpreted the letter to ask the first question, whether he wanted reinstatement of his rights, but not to ask the second question as to whether those were the only two issues he wanted to pursue.

This is clear from the fact that on October 3rd the petitioner wrote down this question to Ms. Salvatore.   Quote, “Am I only going forth to have my appellate rights restored or am ․” there may be a misstatement there, but, “․ am I going forth with more issues that took place during the course of my trial?” close quote.

Apparently this letter never reached Ms. Salvatore, but it is clear to me that the petitioner wrote it at the time and it reflects his thinking at the time, and it is clear that the petitioner was not clear as to whether the previous discussion referred to the trial-related claims or not.

Even the motion for stipulated judgment is unclear because while it does reflect the party's agreement that the petitioner would have his appellate and sentence review rights restored, it does not address whether the agreement resolved the other issues in the habeas petition.

It was habeas counsel's obligation to write and communicate clearly, especially with a client who is incarcerated and only has a GED.

Further, here, the petitioner had specifically raised trial issues in his pro se petition, and that meant that counsel had an obligation to tell or ask petitioner what was happening with regard to that.   Ms. Salvatore did not do so and this was deficient performance.

However, I do not find prejudice.   Ultimately, we get back to the same issues in count one.   I have already found that they do not have merit, and that same conclusion obviously applies here.   Therefore, considering the prejudice prong, I find no ineffective assistance of habeas counsel and deny count two.

For those reasons, the petition for a writ of habeas corpus is denied.

The court reporter shall produce a transcript of this decision which shall serve as the memorandum of decision.

Petitioner shall prepare a judgment file within thirty days.

The petitioner is entitled to have notice of his right to appeal, and the marshal has handed the petitioner notice of his right to appeal.

THE COURT:  Are there any corrections or need for any supplemental orders or findings at this point?

ATTY. ROZWASKI:  Briefly, Your Honor.

THE COURT:  Yes.

ATTY. ROZWASKI:  No, Your Honor.   Thank you, Your Honor.

THE COURT:  All right.   I thank both counsel for the courtesy and their professionalism.

Schuman, J.

Schuman, Carl J., J.