Opinion
No. CV99-428654S
November 15, 2006
MEMORANDUM OF DECISION ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS
The petitioner was the defendant in a criminal case in the judicial district of Fairfield. On November 1, 1993, after a jury trial, he was convicted of two counts of murder in violation of General Statutes § 53a-54a(a), two counts of felony murder in violation of General Statutes § 53a-54c, and one count of capital felony in violation of General Statutes § 53a-54b(7).
On December 10, 1993 the trial court (Ford, J.) merged the felony murder and murder convictions into the capital felony conviction and sentenced the petitioner to life imprisonment without the possibility of release pursuant to General Statutes § 53a-35a. Thereafter, the case was the subject of several decisions by the Connecticut Appellate and Supreme Courts. See State v. Amado, 42 Conn.App. 348 (1996); 242 Conn. 906 (1997); 50 Conn.App. 607 (1998); 247 Conn. 953 (1999); and 254 Conn. 184 (2000). The final decision by the Supreme Court in 2000 affirmed the judgment of the trial court. The petitioner is presently in the custody of the respondent as a result of his sentence. The petitioner was represented at trial by Attorney John R. Gulash.
The petitioner, by counsel, filed a three-count amended petition on July 21, 2005. This court conducted a trial on that habeas petition on April 18 and 21, 2006. On May 30, 2006, the petitioner, by counsel, filed a second amended three-count petition which added the appellate history of this case. The material allegations of the May 30, 2006 petition are identical to the allegations of the petition on file at the time of the trial. The respondent filed a return to the second amended petition on June 26, 2006.
The second amended petition alleges in the first count that his confinement is unlawful because it is based upon convictions obtained in violation of his due process rights under the fifth and fourteenth amendments of the United States constitution and article first, section eight of the Connecticut constitution in that the state failed to disclose certain exculpatory information to the petitioner relating to the violent criminal history of one of the victims. The second count alleges that the petitioner was denied the right to effective assistance of counsel in various ways in violation of his rights under the sixth amendment to the United States constitution and article first section eight of the Connecticut constitution. The third count makes a claim that the petitioner is actually innocent of the felony of attempted robbery based on what is alleged to be newly discovered evidence.
The first Appellate Court decision found that the jury could reasonably have found the following facts. "On October 18, 1990, and for some time prior thereto, Eric Amado was living in an apartment in West Haven with Joanne Bailey and Hope Vaughn. Amado also stored cocaine that he was selling in bulk in the apartment. He stored the narcotics in a small safe and in a duffel bag, both of which were kept in the laundry room of the apartment.
"On October 18, 1990, Vaughn called Anthony Young at his residence at 505 Williams Street in Bridgeport. Young came to the West Haven apartment, and he and Vaughn removed the duffel bag and the safe from the apartment and placed them in the trunk of Young's red Toyota Celica. Before leaving the apartment, Vaughn and Young opened the window and knocked some items to the floor to make it appear that someone had broken into the premises. They left West Haven and went to 505 Williams Street. When they arrived in Bridgeport, Young telephoned Peter Hall, who then went to 505 Williams Street.
"Some time during that same day, Amado returned to the apartment and found that a window had been opened and that items in the apartment had been knocked over. Amado had gone to the apartment to pick up a quantity of cocaine that he was going to deliver to a purchaser. When Amado went to the laundry room where his drugs had been stored, he discovered that the drugs were missing. Bailey also returned to the apartment and discovered the open window and the items knocked to the floor. She left the premises and went to her sister's house in Bridgeport.
"Later in the day, Amado picked up Bailey at her sister's house in Bridgeport. Amado was driving a white Mitsubishi. Amado was accompanied by Anthony Smalls. The group went to Norwalk to look for Vaughn to ascertain whether she knew who was responsible for the theft of the drugs. Amado, Bailey and Smalls met John Wideman, who joined in the search for Vaughn.
"The group went to Stamford. They arrived at a house, and Bailey and Wideman waited in the car while Amado and Smalls entered the house. After about thirty minutes, Smalls emerged from the house. Fifteen minutes later, Amado came out of the house. Amado told the others that he had been visiting with a "voodoo man" who had told him that Vaughn and two others had stolen his drugs.
"The group returned to Bridgeport and left Bailey at her sister's house. Amado told her to stay there until he returned. Amado, Smalls and Wideman left the house and returned about ten minutes later accompanied by David Bailey, who was driving a blue Volvo.
"The group of five decided to look for Vaughn. Amado, Smalls and Joanne Bailey rode in the white Mitsubishi, while Wideman and David Bailey rode in the blue Volvo. They first went to Vaughn's sister's house and when they did not find Vaughn there, they proceeded to 505 Williams Street. The four men were armed with pistols. They arrived at 505 Williams Street at about 9 p.m. and observed Vaughn standing on the porch with Young and Hall. Amado told Joanne Bailey to go to the porch and tell Vaughn that he wanted to talk with her. Vaughn came down from the porch and entered the white Mitsubishi. Amado asked Vaughn if she knew where his drugs were. Vaughn denied any knowledge of the theft or whereabouts of the missing cocaine. While questioning Vaughn, Amado was upset and talked loudly. Amado, Smalls, Vaughn, Wideman, David Bailey and Joanne Bailey left Williams Street and arrived at the West Haven apartment at about 2:30 a.m. on October 19, 1990. The group remained there overnight.
"At about 10 a.m., Amado and Joanne Bailey went into the hallway to talk with neighbors. Amado wanted to determine whether the neighbors had observed anyone removing items from his apartment. After speaking with a neighbor across the hall, Amado told Vaughn that he had learned that she had taken his cocaine. Amado told Vaughn that the neighbor had seen her in a red Toyota Celica. Vaughn said that the vehicle belonged to Young.
"Amado, Smalls, Vaughn, Wideman, David Bailey and Joanne Bailey proceeded to 505 Williams Street. Amado, Smalls, Vaughn and Joanne Bailey rode in the white Mitsubishi and the others rode in the blue Volvo. They arrived at the house at about 11 a.m. and everyone exited the vehicles. Amado and Smalls were both armed with handguns.
"Amado, Vaughn and Joanne Bailey went to the porch of the house and rang the doorbell. When nobody answered, they knocked on the door. Young opened the door and Hall was standing behind him. Hall had a gun in the waistband of his pants. Amado accused Young and Hall of having his cocaine, and both Young and Hall denied having the drugs.
"Young asked if they could talk, and Amado began shooting. He fired five shots. Joanne Bailey was shot in the left thigh. Young was shot in the left groin area and Hall was shot on the left side of the abdomen. Joanne Bailey went into the house, fell down and crawled into the kitchen. Hall went into the kitchen and collapsed on the floor near the refrigerator. Young collapsed in the front hall near the doorway.
"Amado, Smalls, Wideman and David Bailey fled. Vaughn called 911 from a neighbor's house and EMTs responded to the call. When the EMTs arrived at the house, the front door was locked and they were unable to enter. Vaughn returned and was screaming, "He's shot." She kicked in the window, entered the house and opened the front door for the EMTs.
"Upon entering the house, the EMTs observed Young lying on the floor of the front hallway. He was unconscious and had sustained a gunshot wound. He was clutching a fully loaded magazine for an automatic weapon. Hall, also suffering from a gunshot wound, was sitting on the floor in the bedroom. He was unconscious, but his eyes were open. He held a small automatic pistol. The hammer of the pistol was cocked back, and his finger was on the trigger. The EMTs also found Joanne Bailey.
"The Bridgeport police arrived. Officer John Galpin spoke with Young, who had regained consciousness, and asked him to name the person who had shot him. Young responded that Amado had shot him. Young and Hall were transported to Bridgeport Hospital. Young died as a result of a gunshot wound to the groin area and Hall died as a result of a gunshot wound to the abdomen.
"The police obtained a search warrant for 505 Williams Street, and a search of the basement resulted in the seizure of two large plastic bags containing rocky white powder. One of the plastic bags was inside a black duffel bag. In addition, the police found a strainer, a spoon and a safe. The contents of the plastic bags tested positive for crack cocaine. The total weight of the two bags was about three and one-half pounds and the drugs had a bulk value of about $38,000.
"An arrest warrant was issued for Amado (hereinafter the defendant), and he was arrested in Georgia as a fugitive from justice. Bridgeport authorities were notified of the defendant's arrest on March 21, 1992, and approximately ten months later he was returned to Bridgeport for trial.
"The defendant testified at trial. He conceded that he had shot the victims, but asserted that he did so in self defense. He admitted that he lived in the West Haven apartment with Joanne Bailey and that in October 1990, he had been engaged in selling cocaine. He also conceded that the duffel bag containing the cocaine and the safe were his property. He claimed that on October 18, 1990, he discovered that these items were missing and that he and the others went to Bridgeport to find out about the disappearance of the items.
"The defendant testified that upon arriving at 505 Williams Street, he walked up to the front door. He asserted the he did not display a weapon as he went to the door. He claimed that the first person that he observed in the doorway was Young. The defendant testified that he told Young that the house in West Haven had been "robbed" and that Young's car had been observed there. The defendant claimed that he asked Young whether he knew anything about the incident. According to the defendant, Young indicated that "he hadn't been up there" and that "he didn't have anything to do with it."
"The defendant further testified that as this conversation was taking place, Hall appeared in the doorway and stood to the rear of Young. The defendant stated that both Young and Hall were standing inside the house, while the defendant was standing on the porch. The defendant said that Smalls, who was standing to his rear, yelled at the men in the doorway, "Do you have our shit or don't you?" The defendant asserted that Young became upset and shouted back at Smalls. The defendant testified that, up to this point, neither Young nor Hall appeared to have a weapon.
"According to the defendant, Young then took a step forward and the defendant took a step back. The defendant claimed that he then saw Hall reach for the waistband of his trousers and start to draw a gun. The defendant testified that he became frightened because he thought Hall was going to shoot him. The defendant claimed that he drew his gun and shot into the house several times because he saw Hall pull out a gun. The defendant asserted that following the shooting, he ran away. He testified that during the incident, he did not know that he had shot Young and Hall." State v. Amado, supra, 42 Conn.App. 351-56.
The first count of the amended petition alleges that the state failed to disclose certain exculpatory information to the petitioner in violation of his constitutional rights, as set forth in Brady v. Maryland, 373 U.S. 83 (1963). The information which allegedly was not disclosed was the fact that Anthony Young, one of the victims, had a prior felony conviction for a crime of violence. The petitioner claims that this information was exculpatory because it would have been relevant on the issue of who was the aggressor at the time of the shootings.
"The United States Supreme Court has held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [government]. Brady v. Maryland, [ 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)]; State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990); State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984) . . . This type of violation of the defendant's due process rights is commonly referred to as a Brady violation. State v. Morales, 232 Conn. 707, 714, 657 A.2d 585 (1995)." (Citation omitted; internal quotation marks omitted.) State v. Connelly, 46 Conn.App. 486, 512, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S.Ct. 245, 142 L.Ed.2d 201 (1998). "To prevail on a Brady claim, the defendant bears a heavy burden to establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material." (Internal quotation marks omitted.) State v. Burke, 51 Conn.App. 328, 333, 723 A.2d 327 (1998), cert. denied, 248 Conn. 901, 732 A.2d 177 (1999). Quintana v. Commissioner of Correction. 55 Conn.App. 426 (1999).
With respect to Young's prior criminal record, the petitioner failed to establish that the prosecution suppressed the evidence concerning the record. In addition, Mr. Gulash testified that he had the information relating to Young's criminal record available for whatever purposes he chose to use it. Since the defense had the evidence during the trial it is clear that the petitioner has failed to prove that the evidence was material. "The test of materiality of undisclosed exculpatory evidence requires that there be a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Quintana v. Commissioner of Correction, supra, 55 Conn.App. 438. It is apparent to the court that the actual knowledge by the defense of the alleged exculpatory information would negate a claim of a Brady violation. The first count is without merit.
The second count alleges that the petitioner was denied the right to effective assistance of counsel in that trial counsel failed to conduct a sufficient investigation, failed to properly request information from the State, failed to properly present exculpatory information at trial, failed to adequately cross-examine witnesses, failed to file motions to limit the state's cross-examination of the petitioner regarding his drug operation, and failed to take appropriate measures to ensure that the trial judge properly instructed the jury.
The petitioner is entitled to receive effective assistance of trial counsel. "A petitioner's right to the effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, § 8, of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel . . . The right to counsel, however, is the right to effective assistance and not the right to perfect representation." (Internal quotation marks omitted.) Woods v. Commissioner of Correction, supra, 85 Conn.App. 549.
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
"To establish the first prong of the Strickland test, the petitioner must first establish that his attorney's performance was "not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . ." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 29 Conn.App. 162, 170, 614 A.2d 842 (1992), rev'd on other grounds, 229 Conn. 397, 641 A.2d 1356 (1994). The court must be mindful that "[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." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 798-99.
Turning to the prejudice component of the Strickland test, "[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Woods v. Commissioner of Correction, supra, 85 Conn.App. 550. A court "hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury . . . [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." Strickland v. Washington, supra, 466 U.S. 695-96." Lewis v. Commissioner of Correction, 89 Conn.App. 850, 854-56.
Mr. Gulash is a graduate of Lehigh University and Stetson Law School. He has been engaged in the practice of law since 1976. He initially served as a public defender in Bridgeport for approximately five years, and then opened his own office in Bridgeport. He has been in private practice since 1981 and 95 percent of his law business is criminal defense work. He has tried over 150 criminal cases to verdict, of which at least 30 were murder or capital felony cases.
The first claim of ineffective assistance of counsel is that Mr. Gulash failed to conduct a sufficient investigation. Mr. Gulash began representing the petitioner when he was located, arrested, and confined in Georgia as a fugitive from justice. The other participants in the crimes had already been arrested in Connecticut. He hired a retired Bridgeport detective as an investigator. He was able to develop extensive information about the case through his investigator. He had an intern in his office attend the probable cause hearings that were taking place with respect to the co-defendants. Mr. Gulash went to Georgia, met with the petitioner, discussed strategy, and he obtained a criminal defense lawyer in Georgia to represent the petitioner in connection with fighting extradition to Connecticut. The petitioner eventually was extradited. Mr. Gulash, his investigator, and the intern all worked on the extensive investigation of the case. The court finds that Mr. Gulash was a very credible witness and that he and his associates conducted an exhaustive investigation.
One of the claims of the petitioner is that Mr. Gulash was deficient in that he failed to interview Joanne Bailey before trial, and that if he had interviewed her he would have found out that, if asked, she would have testified that before the shooting someone inside the house had invited the petitioner to come in, and that this evidence would reasonably have caused the jury to find that the petitioner was not a trespasser and thereby bolstered the petitioner's claim of self-defense. In addition it is claimed that if Ms. Bailey had been interviewed before trial that Mr. Gulash would have known that, if asked, she would testify that the petitioner had no intent to commit a robbery when he and his associates went to the house where the shooting occurred. This latter claim assumes that she would have been allowed to testify as to the intent of the petitioner.
Ms. Bailey testified in the criminal trial. It is the petitioner's claim that since Mr. Gulash had not interviewed her previously he failed to ask the questions which would have brought forth the evidence which would have reasonably affected the outcome of the trial. The court heard Ms. Bailey's testimony in the habeas trial. The court assumes that the petitioner elicited from her the allegedly significant evidence which was not offered in the criminal trial because Mr. Gulash, not having interviewed her, didn't know about it. The court has read Ms. Bailey's testimony in the criminal trial and listened to her testimony in the habeas trial. The court finds that Ms. Bailey was not a credible witness. Her testimony in the habeas trial concerning the alleged invitation to enter, which was contrary to the petitioner's testimony in the criminal trial, and the petitioner's lack of an intent to rob, when considered in the context of all the evidence in the record, would not have had any significant impact on the jury in the criminal trial. The court finds that the petitioner has failed to prove that Mr. Gulash was deficient in not interviewing Ms. Bailey before the criminal trial, or that this alleged deficiency caused the petitioner to suffer any actual prejudice.
The next specific claim of ineffective assistance of counsel is that Mr. Wash failed to properly request information from the state and to properly present exculpatory evidence at trial. By way of his brief the petitioner claims that once Mr. Gulash had the information that both victims had criminal records, he then was obliged to request that the state provide him with any additional information regarding the victim's criminal histories which the state "might" possess, and he failed to do so. There was no evidence offered to establish that there was any additional information which would have been produced, if such a request had been made. The alleged exculpatory evidence which was not offered was the criminal record of Mr. Young. Mr. Gulash testified at length with respect to why he made the decision that it was not in his client's best interest to introduce Young's criminal record. He made a tactical decision not to use the record, and the petitioner has failed to overcome the presumption that, under all the circumstances, the decision was sound trial strategy. The court finds that the petitioner has failed to prove that Mr. Gulash was deficient in this regard or that the petitioner has suffered actual prejudice as a result of that decision.
The petitioner next claims that Mr. Gulash should have conducted an interview of Hope Vaughn before the criminal trial and if he had he would have discovered that she would testify that Young invited the petitioner into the house. Ms. Vaughn did not testify in the habeas trial. She testified in the petitioner's criminal trial and at a later date in the trial of co-defendant Anthony Smalls. The petitioner introduced her testimony from the Smalls trial in an effort to prove what she would have said if she had been asked certain questions in the petitioner's criminal trial. The significance of this additional testimony is necessarily premised on the assumption that Ms. Vaughn, whose theft of the petitioner's drugs in West Haven eventually led to a double murder in Bridgeport, would have been found credible by the jury in the petitioner's criminal case. The court, having read her testimony in the Smalls case and considered it in the context of all the evidence in the criminal trial finds that it would not have been significant. The petitioner has failed to prove that her testimony in the Smalls trial concerning Young's invitation to enter the house, if offered in the petitioner's criminal trial, would have affected the outcome of the trial.
The next claim in the petition relative to the alleged ineffective assistance of trial counsel is that Mr. Gulash failed to adequately cross-examine witnesses. By way of his brief the petitioner refers to the failure to ask Ms. Bailey certain questions, and the failure to call Ms. Vaughn as a defense witness, both allegedly caused because Mr. Gulash did not interview these two women. The claims concerning Ms. Bailey and Ms. Vaughn have already been discussed and found to be of no merit.
The next claim is that Mr. Gulash failed to file a motion in limine or to object to the state's cross-examination of the petitioner concerning his drug activities. The petitioner testified in the criminal case and Mr. Gulash brought out on direct examination that he was a drug dealer, which had been testified to earlier by several witnesses. The state then cross-examined the petitioner in detail about his drug business. The petitioner claims that these details were irrelevant, highly prejudicial, and if objected to would have been excluded by the trial court. The court does not agree. The details of the drug operation were relevant to show the nature of the operation, the significance and the consequences to the petitioner of the theft of several pounds of cocaine, and the effect that this would have had on the intent of the petitioner in resolving to do whatever was necessary to recover the drugs. The petitioner has failed to prove that a motion in limine would have been granted or an objection sustained, or that Mr. Gulash was deficient in this regard. In addition, he has failed to prove that the introduction into evidence of the details of the drug operation caused him to suffer actual prejudice.
The final claim of ineffective assistance of counsel in the amended petition is that trial counsel failed to undertake appropriate measures to ensure that the trial judge properly instructed the jury on the applicable law. This claim has not been pursued by way of the brief and is deemed to have been abandoned.
In summary, with respect to the claim of ineffective assistance of trial counsel as alleged in the second count of the amended petition, the petitioner has failed to prove that trial counsel's representation was deficient in any of the ways alleged in the amended petition or in his brief and he has further failed to prove that anything Mr. Gulash did, or failed to do, caused him actual prejudice.
The third count of the amended petition alleges a claim of actual innocence. The standard of proof in a habeas action where the petitioner presents a claim of actual innocence is well established in Connecticut jurisprudence. "[T]he proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997); accord Clarke v. Commissioner of Correction, 249 Conn. 350, 355, 732 A.2d 754 (1999).
The claim of actual innocence of the crime of attempted robbery is premised on what is alleged to be newly discovered evidence. This newly discovered evidence is the testimony that Ms. Vaughn would have given, if asked, that the petitioner had been invited into the victim's home, and the testimony that Ms. Bailey would have given, if asked, that the petitioner did not intend to commit a robbery when he and his three armed associates went to the victim's home. As previously indicated, this court has read the entire transcript of the criminal trial, and is of the opinion that the evidence referred to in support of the claim of actual innocence would have had no effect whatsoever on the jury in this case. The court finds that the petitioner has failed to prove, after taking into account all of the evidence offered at the criminal trial and at the habeas trial, that he is actually innocent of any of the crimes of which he has been convicted, or that no reasonable fact finder would find him guilty of those crimes.
The amended petition is dismissed.