Opinion
No. CV 01-0805164 S
September 24, 2003
MEMORANDUM OF DECISION
This is a habeas petition in which the essential claim of the Petitioner, Jamel Burke, (hereinafter also "Petitioner") is ineffective assistance of trial counsel.
On June 13, 1995, the Petitioner was seized by officers of the Waterbury Police Department under a search and seizure warrant for, inter-alia, his body, was questioned by detectives from the Waterbury Police Department and, thereafter, arrested by warrant charging the Petitioner with violations of Connecticut General Statutes § 53a-54c, Felony Murder and Connecticut General Statutes § 53a-103 (a), Burglary in the Third Degree. From May 15, 1996 through May 30, 1996, Petitioner was tried by a jury before the Hon. Roland Fasano with Attorney Ralph Crozier (hereinafter also "Crozier") representing the Petitioner. Petitioner was convicted on both counts and on July 12, 1996 he was, sentenced to a term of forty-eight years incarceration. The Petitioner timely filed his appeal, but the conviction was affirmed by the Appellate Court at 51 Conn. App. 798 (February 16, 1999), and subsequently affirmed by the Connecticut Supreme Court at 254 Conn. 200 (August 15, 2000).
The Petitioner, in paragraph 7 of his Amended Petition dated January 7, 2003, states that his arrest, conviction and subsequent confinement are illegal in contravention of the Petitioner's Fourth Amendment rights claiming that he was seized and held and questioned on the basis of a search warrant which provided only for obtaining the palm print and finger prints of the Petitioner and; the seizing officers failed to provide a copy of the warrant to the Petitioner, failed to advise him of the content and scope of the warrant and never executed the warrant, and; the Petitioner was subjected to interrogation during this claimed illegal detention in which the Petitioner signed a statement inculpating the Petitioner in the transaction which gave rise to the criminal charges, and; that said statement was illegally obtained. However, the Petitioner cannot obtain habeas corpus review of these claims because he CT Page 10881-b did not raise them on direct appeal. Further, the Petitioner did not establish "cause" for the procedural default and "prejudice" sufficient to excuse the default and permit review of the claim for the first time in this habeas corpus proceeding. See Tillman v. Commissioner of Correction, 54 Conn. App. 749, 755 (1999). Accordingly, this Court has no jurisdiction to consider these claims since they were not raised on direct appeal where they should have been raised. Habeas courts cannot have jurisdiction over issues that should have been raised on direct appeal.
Paragraph Eight of the Amended Petition does set forth a claim of Ineffective Assistance of Counsel, primarily in that "Counsel failed to rise (sic), either orally or by brief at the hearing of Petitioner's motion to suppress his statement the illegal seizure, detention and interrogation of the Petitioner by the Waterbury police officers." Evidence was presented as to the alleged ineffective assistance of counsel on May 28, 2003 at a hearing before this Court on the habeas corpus petition.
FACTS
The basic facts of the incident which resulted in the Petitioner's convictions can best be summed up by the summary contained in the Appellate Court decision of State v. Burke, 51 Conn. App. 798, 800-01 (1999) which reads, inter-alia, as follows:
The jury reasonably could have found the following facts. On May 27, 1995, the victim, John J. Walsh, Jr., was working at the Fox Cafe as a doorman. A Fox Cafe employee found the victim on the ground in the Fox Cafe parking lot with blood flowing from his right temple. The victim was taken to the Waterbury Hospital emergency room where he was subsequently removed from life support.
On the basis of a tip, the police questioned David Monell regarding the homicide. After questioning Monell, the police obtained a search and seizure warrant for the defendant's person and residence. The police brought the defendant to the police station, where he gave the police a written, signed statement. The defendant indicated that on May 27, 1995, while at a party, he and Monell talked about breaking into a car to obtain a car stereo. They drove to the Fox Cafe where they noticed a Dodge Caravan with a car stereo and an alarm. They pulled into the parking lot next to the Fox Cafe, and the defendant approached the Caravan with a flashlight and a screwdriver while Monell waited in his car. Using the screwdriver, the defendant popped the front passenger window, setting off the car alarm, and reached in to open the Caravan door. CT Page 10881-c
The defendant quickly removed the car stereo from the Caravan using the screwdriver and started to walk back to Monell's car when he heard the victim running after him. The defendant threw the stereo at the victim to stop him. The victim kept running, however, and tackled the defendant. A struggle ensued, during which the defendant swung both fists at the victim until he stopped struggling. When the defendant returned to Monell's car, he noticed that he still had the screwdriver in his hand and "figured that [he] stuck the . . ., guy with the screwdriver." The defendant left the scene in Monell's car and returned to the party. The defendant told Monell that he thought that he "might have stabbed the guy."
STANDARD OF REVIEW
The "right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984). In Strickland v. Washington, supra, the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: The defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness, id. 687-88; and (2) that defense counsel's deficient performance prejudiced the defense, id. 694." As for the second prong of Strickland supra, the Petitioner is required "to demonstrate that there is a reasonable probability that the result of the proceedings would have been different had it not been for counsel's deficient performance. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Copas v. Commissioner of Correction, 234 Conn. 139, 154-55 (1995).
The Court bases much of its decision on the credibility of the witnesses; namely their demeanor on the witness stand, their ability to recall certain events, the consistency or inconsistency of their statements or testimony, the manner in which they responded to questions on cross-examination as well as direct examination, the conflict of their testimony with other testimony and the other evidence in the case, including the exhibits, and the overall reliability of their testimony.
The habeas trial was held on May 28, 2003. The parties then filed post trial briefs.
ISSUES
A. DID THE PETITIONER SUSTAIN HIS BURDEN OF FULFILLING THE SECOND PRONG OF STRICKLAND SUPRA? CT Page 10881-d
The second prong of Strickland, as aforementioned, states that the Petitioner must prove that if it were not for the alleged ineffectiveness of counsel, the result would probably have been different. From a review of the transcripts of the criminal trial and from the testimony obtained during the habeas hearing, this Court concludes that even if Crozier was ineffective on the motion to suppress the statement of the Petitioner and the statement had not come into evidence, the result would not have been different. The evidence against the Petitioner was overwhelming without his written statement in evidence. This evidence includes, inter alia, the following:
1. The written statement of the Petitioner's co-defendant, David Monell, Respondents Exhibit D, which clearly inculpated the defendant. The statement describes the theft of the stereo by the Petitioner, the scuffle that ensued between the Petitioner and the victim and the defendant stating to David Monell that he, the Petitioner, thought he stabbed the guy in the arm and then in the chest with the screwdriver, but said he didn't think it went through because the guy was wearing a jacket.
2. David Monell had already pleaded guilty under a plea bargain with the State and was ready to testify if necessary as to the contents of his statement.
3. The stereo that Petitioner had stolen and the flashlight that he used had been dropped in the parking lot and the Petitioner's fingerprints were on them.
4. The screwdriver which David Monell said was placed into Monell's car after the Petitioner used it in the fight with the victim, left hairs of the victim on the floor of the car, the hairs having come from the screwdriver.
5. After the incident, David Monell and the Petitioner went back to the party where they had been, and during the time they were there, Petitioner described the scuffle and the use of the screwdriver to various friends of his who were witnesses as to his inculpating statements to them at the time of trial.
6. The screwdriver was found at the Petitioner's home.
With the aforementioned forensic evidence and witnesses testimony, it is clear that the Petitioner would have been convicted even if Crozier had been successful on the motion to suppress the statement. CT Page 10881-e Accordingly, the Petitioner has failed to sustain his burden of proving that if it were not for Crozier's ineffectiveness, the result of the trial would have been different.
B. WAS ATTORNEY CROZIER INEFFECTIVE AS PETITIONER'S ATTORNEY?
It is well-settled law that if the habeas court comes to the conclusion that the second prong of Strickland has not been met, there is no need to address the issue of ineffectiveness of counsel. However, this Court will, nevertheless, address this claim.
Attorney Crozier, whose background demonstrated him to be a knowledgeable and effective criminal defense attorney, testified that in his opinion it was not relevant as to whether the motion to suppress the statement was successful. Crozier, whom the Court found to be a credible witness, testified that the purpose of the motion to suppress hearing was discovery. As to the police officers who testified, he wanted to "box them into positions" which he could then use for impeachment purposes at the time of trial. He also wanted to cross-examine the police officers to know what to expect from them at trial so that he could also prepare the Petitioner for his testimony. He did not want the Petitioner to testify at the suppression hearing because it could easily open the Petitioner to impeachment at the actual trial on what he said at the suppression hearing. Crozier had always anticipated calling the Petitioner to the witness stand in his own defense. Petitioner had no prior record which could be used to impeach his credibility, Crozier was proceeding on a theory of self-defense and a separation of the commission of the felony (Burglary Three) from the fight and subsequent killing of the victim, thereby taking away the charge of Felony Murder. He could not do any of this without the Petitioner testifying as to his intent at all stages of the incident and its aftermath, his state of mind, etc. He knew that the Petitioner would have to testify to essentially what was contained in the statement which was the subject of the motion to suppress. Therefore, there was no advantage to keeping the statement out of evidence, but Crozier used the suppression hearing for the purpose of discovery as aforementioned. This Court finds that Crozier's attempts to convince the jury of self-defense and/or a separation from the commission of the felony was a good trial tactic or strategic approach that could have served the Petitioner well at time of trial. Further, Crozier had asked the court to instruct on lesser included offenses such as Manslaughter or Negligent Homicide, and the testimony by the Petitioner was to serve as a basis for the jury finding the Petitioner guilty of a lesser included offense. Unfortunately, according to Crozier, the trial judge indicated that he would give a charge on lesser included offenses but subsequently reversed that decision and did not give a charge on lesser included CT Page 10881-f offenses. Suffice it to say that this Court cannot quarrel with the tactical and strategic decisions made by Crozier which appear to be the only chances of obtaining either an acquittal or guilt of a lesser included offense. Because it was irrelevant as to whether or not Crozier would win the suppression motion, he cannot be faulted even if he did not vigorously pursue it.
The trial court was correct. See State v. Whistnant, 179 Conn. 576, 588 (1980), in which the court stated that in order to require an instruction to the jury on a lesser included offense four conditions must be met including that "2. It is not possible to commit the greater offense . . . without having first committed the lesser." See State v. Castro, 196 Conn. 421, 428 (1985), in which the court found that both first and second degree manslaughter "clearly do not meet the second condition of Whistnant."
This Court finds, therefore, that the Petitioner was well represented by Crozier and that accordingly the Petitioner has failed to sustain his burden of proving that Attorney Crozier rendered ineffective assistance of counsel.
CONCLUSION
For the foregoing reasons, the Petitioner has not sustained his burden of proving either prong of Strickland, supra. The habeas petition, therefore, is dismissed.
Rittenband, JTR
NOTE: It is too bad that the Petitioner is serving a sentence of forty-eight years when he had no intent to kill the victim. He did not carry a gun and the screwdriver was only for the purpose of the burglary. However, it is clear that under the felony murder rule any death resulting from the felony other than that of the Petitioner or his co-defendant makes him guilty of Felony Murder regardless of his intent. The moral of this comment is that one should not, in the first instance, commit a felony.