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Andre Martin v. Warden, State Prison
MEMORANDUM OF DECISION
The petitioner, Andre Martin, alleges in his Second Amended Petition for a writ of habeas corpus, filed on December 16, 2010, that he was denied the effective assistance of counsel at the trial of his criminal case in the Judicial District of Fairfield at Bridgeport in violation of both the United States and Connecticut Constitutions. The petitioner was tried before a jury in February 2004 and convicted of: 1) attempt to possess one kilogram or more of marijuana with attempt to sell by a person who is not drug dependent in violation of Conn. Gen.Stat. §§ 21a–278(b) and 53a–49; 2) possession of four ounces or more of a cannabis-type substance in violation of Conn. Gen.Stat. § 21a–279(b); and 3) conspiracy to possess one kilogram or more of marijuana with intent to sell in violation of Conn. Gen.Stat. § 21a–277(b), 21a–278(b), and 53–48. On April 30, 2004, the trial court sentenced the petitioner to a total effective sentence of twelve years to serve, which included a five-year mandatory sentence on each of the charges involving Conn. Gen.Stat. § 21a–278(b). The petitioner was represented at trial by Attorney Richard Lafferty.
On appeal, our Appellate Court reversed the judgments of conviction and ordered judgment directed for the defendant. State v. Martin, 98 Conn.App. 458, 909 A.2d 547 (2006), reversed, 285 Conn. 135, 939 A.2d 524 (2007). It did so on the principal ground that there was insufficient evidence for the jury to find that the petitioner had the requisite knowledge that the crate in which the marijuana was shipped actually contained marijuana. The Supreme Court disagreed and reinstated the convictions and remanded the case to the Appellate Court for further proceedings. Martin, supra, 285 Conn. 156–58. On remand, the Appellate Court affirmed the petitioner's convictions except it held that the petitioner's right against double jeopardy was violated by being convicted of both the attempt to possess marijuana charge and the possession of marijuana charge. The court therefore ordered that the case be returned to the trial court so that the sentence on the possession charge could be vacated. State v. Martin, 110 Conn.App. 171, 954 A.2d 256 (2008), appeal dismissed, 295 Conn. 192, 989 A.2d 1072 (2010). Because the sentences originally imposed by the trial court on each count ran concurrently, the Appellate Court's decision did not change the petitioner's total effective sentence of twelve years to serve. The facts that formed the basis of the petitioner's convictions are set out fully in the majority and dissenting opinions of the Appellate Court and in the Supreme Court's opinion. In the interest of judicial economy and brevity, the court assumes familiarity with those facts.
The petitioner's claim of ineffective assistance of trial counsel focuses on two issues. First, the petitioner claims that Attorney Lafferty did not provide him with reasonably competent advice regarding whether the petitioner should testify. He further claims that Attorney Lafferty did not properly prepare him to testify and did not counsel him on the risks of doing so. As part of this claim, the petitioner also alleges that Attorney Lafferty failed to take appropriate steps to preclude the introduction of certain prejudicial evidence that was presented during the cross-examination of the petitioner. The petitioner claims that he did not want to testify and only did so at Attorney Lafferty's insistence. He further claims that had he known what would come out on cross-examination, he definitely would not have testified. The petitioner claims that Attorney Lafferty's incompetence in advising and preparing him regarding his testimony was clearly prejudicial because the Supreme Court, in reversing the Appellate Court, relied on evidence gleaned during the petitioner's examination as support for the jury's findings of guilt.
Second, the petitioner claims that Attorney Lafferty was ineffective because he failed to properly argue for the admission of two out of court statements given to the police by a co-defendant and his girlfriend. The petitioner claims that these statements were exculpatory as to him, and had they been introduced there is a reasonable probability that the result of the trial would have been different. Alternatively, the petitioner claims that even if the statements were not admissible, Attorney Lafferty could have introduced many of the exculpatory facts contained in those statements through other witnesses, but failed to do so.
LEGAL STANDARD
“The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness ․ To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal ․ In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction.” (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994). Here, the petitioner claims that the ineffective assistance of his trial counsel has led to such a result. “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 ․ Second, the defendant must show that the deficient performance prejudiced the defense ․ 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. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).
“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness ․ in Strickland, the United States Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a petitioner 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 ․ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment ․” Henderson v. Commissioner of Correction, 80 Conn.App. 499, 504–05, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).
As to the prejudice prong, “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 ․ The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Strickland v. Washington, supra, 691–92. Consequently, the petitioner must affirmatively show that his counsel's performance had an adverse impact on the defense. Id., 693. Put another way, in order to meet the prejudice prong the petitioner must prove 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.
DISCUSSION
As to the petitioner's first claim, the evidence presented to the court revealed the following facts. The petitioner and Attorney Lafferty had much different recollections regarding the petitioner's decision to testify. The petitioner testified that he did not want to take the stand because he is not comfortable talking in front of other people. He testified that Attorney Lafferty told the petitioner that he was a brilliant guy, and that he needed to testify. He further testified that Attorney Lafferty did not prepare him to testify, and the petitioner had no idea what would be covered on cross-examination.
Attorney Lafferty testified that although he thought prior to the presentation of the state's case that perhaps the petitioner should testify, that view changed after he heard the state's evidence, particularly the testimony of Special Agent Hibbard. Attorney Lafferty testified that he advised the petitioner not to testify because he did not think the petitioner's version of events would be believed by the jury in light of Hibbard's testimony and the surveillance video shown to the jury and narrated by Hibbard. According to Attorney Lafferty, he told the petitioner that he could be asked on cross-examination questions about any prior criminal convictions or anything that went to the petitioner's veracity. Nevertheless, Attorney Lafferty admitted that he did not go over the potential topics the state might ask about during the petitioner's cross-examination.
The court finds Attorney Lafferty's testimony to be more credible. The petitioner's claim that he did not understand the risks he took by testifying is belied by the transcript from his trial. The trial court canvassed the petitioner immediately before he testified, and informed him that he would be subject to cross-examination and could be asked about his prior felony conviction. In addition, the state's attorney informed the petitioner that if he chose to testify, he might be asked questions about a pending criminal case involving the petitioner. This warning was given to the petitioner at two separate times during his trial. Furthermore, the state's attorney disclosed to the court and the petitioner, the day before the petitioner testified, that he had just learned that federal authorities had the petitioner's wallet and phone in their possession, and that they were going to be delivered to the petitioner's criminal trial. The petitioner, therefore, knew before he testified that the state's attorney would have the contents of the petitioner's wallet available for use during cross-examination. And, in fact, the state's attorney was able to attack the petitioner's credibility with information from the wallet, including the petitioner's driver's license. Similarly, other issues used to attack the petitioner's credibility during cross-examination, including his employment history, choice of automobiles, and his failure to pay taxes, were all known to the petitioner when he chose to testify.
Although he did not go over with the petitioner specific questions that might be asked during cross-examination, Attorney Lafferty warned the petitioner that he could be questioned about anything that went to the petitioner's veracity. The issues on which the petitioner was questioned were not novel or surprising. Having received the warning from Attorney Lafferty, and having been put on notice by the court and the state's attorney, the petitioner, knowing the questionable manner in which he had handled a number of details in his life, knew better than anyone else, including Attorney Lafferty, the risk he was taking by testifying. He simply has not proved that Attorney Lafferty failed to offer reasonably competent advice on this issue.1
Second, the petitioner claims that Attorney Lafferty failed to provide reasonably competent legal representation because he failed to take sufficient steps to introduce into evidence the out of court statements of Keith Mangan and/or Diana York. Mangan was arrested with the petitioner, and York was Mangan's girlfriend. There are a number of problems with this argument, not the least of which is that the petitioner failed to submit the statements as exhibits in this proceeding. Thus, the record is insufficient for the court to analyze the petitioner's claim.
Nevertheless, even if the court were to accept the petitioner's characterization of the statements set forth in the petitioner's Pretrial Brief, the petitioner would be no better off. It is undisputed that Attorney Lafferty did in fact offer the two statements as full exhibits. The state objected on hearsay grounds, and the statements were excluded. The petitioner argues that reasonably competent trial counsel would have argued that Mangan's statement should have been offered as a statement against penal interests under Connecticut Code of Evidence § 8–6(4). According to the petitioner, Mangan admitted in the statement that the marijuana was his. The petitioner also claims that the statement is significant because it did not implicate him. Assuming that the petitioner's description of Mangan's statement is correct, even if it had been admitted into evidence there is no reasonable probability that it would have changed the outcome of the petitioner's trial. The statement appears to be nothing more than Mangan's attempt to minimize his criminal exposure. In the statement, he claims the marijuana seized was for personal use only, apparently attempting to avoid the greater exposure for possession with intent to sell. He also claims that a gun found on the scene was not his, he did not know it was stolen, and he was holding it for a friend. And while the statement does not explicitly implicate the petitioner, neither is it explicitly exculpatory. It is merely silent as to the petitioner's involvement in the conspiracy. Consequently, the court concludes that failure to have the Mangan statement admitted, even if it is as represented by the petitioner, did not prejudice the petitioner under the second prong of Strickland.
The same conclusion is even clearer as to any statement by York. According to the petitioner, York's statement was that she had no knowledge of the marijuana. Given her denial, the petitioner fails to offer any evidentiary basis for the admission of her statement. Thus, there is no evidence that Attorney Lafferty could have done anything more to have it admitted. Nor does the petitioner explain how the statement would have helped him other than to show that he did not live in or have a key to the apartment where the marijuana was found. Yet, neither of these facts was in dispute. The state never claimed or offered any evidence that the petitioner resided with Mangan and York. Thus, there is no prejudice to the petitioner.2
CONCLUSION
For all the foregoing reasons, the petition is DENIED.
BRIGHT, JUDGE
FOOTNOTES
FN1. The petitioner's claim that Attorney Lafferty should have taken steps to ensure that unnecessarily prejudicial information, like the petitioner's employment history, driver's license, tax filings, and criminal history, was not introduced into evidence is without merit. Once the petitioner chose to testify and put his credibility at issue all of this material became fair game for cross-examination.. FN1. The petitioner's claim that Attorney Lafferty should have taken steps to ensure that unnecessarily prejudicial information, like the petitioner's employment history, driver's license, tax filings, and criminal history, was not introduced into evidence is without merit. Once the petitioner chose to testify and put his credibility at issue all of this material became fair game for cross-examination.
FN2. Although the petitioner claims that exculpatory information from the statements of York and Mangan could have been elicited through other witnesses in a non-hearsay fashion, he neither identified the witnesses who could have provided such information, nor the information to which he is referring. Certainly, no such witness testified in these proceedings. Consequently, any claim that Attorney Lafferty failed to offer reasonably competent representation by failing to call such witnesses is rejected.. FN2. Although the petitioner claims that exculpatory information from the statements of York and Mangan could have been elicited through other witnesses in a non-hearsay fashion, he neither identified the witnesses who could have provided such information, nor the information to which he is referring. Certainly, no such witness testified in these proceedings. Consequently, any claim that Attorney Lafferty failed to offer reasonably competent representation by failing to call such witnesses is rejected.
Bright, William H., J.
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Docket No: CV104003510S
Decided: June 09, 2011
Court: Superior Court of Connecticut.
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