Opinion
No. CV00-0003238
November 8, 2004
MEMORANDUM OF DECISION
The petitioner, Sedrick H. Cobb, inmate #242168, alleges in his petition for a Writ of Habeas Corpus initially filed on October 17, 2000 and amended for the final time on April 8, 2003, that his convictions and resultant sentence to death were defective under both the United States Constitution and the Constitution of the State of Connecticut and that as a result he is entitled to have his convictions and sentence set aside. Notwithstanding, the focus of the trial of this habeas petition has been around the sentencing aspect of the capital case. Indeed, the petitioner made it clear through his testimony at the habeas trial that he was, in fact, the perpetrator of this crime. Consequently, this court will find at the outset that there is no reason to doubt the findings of guilty as to the crimes alleged. Nevertheless, the petitioner is vigorously challenging the representation of his counsel in regard to the sentencing phase of the trial, so, what is at issue is whether the sentence of death pronounced upon the petitioner is constitutionally valid.
In his original pro se petition, the petitioner included a comment that could be interpreted as arguing that actual innocence was a ground for habeas relief. Counsel for the petitioner, in the amended petition, incorporated by references all of the claims in the pro se petition. At trial, the petitioner conclusively abandoned any claim of actual innocence.
On December 16, 1989, a young woman, Ms. Julia Ash, was abducted from the Naugatuck Valley Mall in Waterbury, Connecticut. Her body was subsequently found in a secluded location on December 25, 1989. The petitioner was thereafter arrested and charged with her kidnapping, sexual assault, and murder on December 28, 1989. He was arraigned in the Judicial District of Waterbury where he was initially charged with two counts of capital felony in violation of CGS § 53a-54b(5) (7) and felony murder in violation of CGS § 53a-54c. That case, captioned State v. Cobb, was assigned a docket number of CR4-175454. Having pled not guilty, the petitioner was convicted following a trial in front of a three-judge panel on the merits and ultimately sentenced to death by the same three-judge panel on August 12, 1991. He has resided on the state of Connecticut's Death Row in the custody of the respondent ever since.
A seven-count Substitute Information was filed on January 14, 1991 in which the petitioner was charged with: two counts of kidnapping in the first degree in violation of CGS § 53a-92(a)(2)(a)(b); one count of robbery in the third degree in violation of CGS § 53a-135(a); one count of sexual assault in the first degree in violation of CGS § 53a-70(a); one count of murder in violation of CGS § 53a-54a(a); and two counts of capital felony murder in violation of CGS § 53a-54b(5) (7).
The three-judge panel consisted of Superior Court Judges Barnett, Kulawicz, and Langenbach.
This habeas petition came on trial before the Court commencing on October 14, 2003. During the next three months, the Court received testimony from eleven witnesses and received innumerable documents into evidence. Both parties prepared and filed pretrial briefs as well as post-trial briefs. Finally, the Court heard oral argument on this matter on July 29, 2004. The Court has thoroughly reviewed all of the testimony and evidence and makes the following specific findings of fact.
On July 9, 2003, at a session of the Court that was called for the sole purpose of ascertaining on the record whether the petitioner was willing to waive any claim of attorney/client privilege in regard to his former attorneys, the petitioner, to the complete surprise of this Court, announced that he wished to withdraw the instant petition. The Court canvassed the petitioner regarding his understanding of the meaning of this action and continued the case for a two-week period to allow the petitioner an opportunity to reflect upon a decision that would have life or death ramifications so far as he was concerned. At the expiration of that two-week period, the petitioner elected to continue with his petition for a writ of habeas corpus.
Normally, a petition for a wit of habeas corpus is tried and adjudicated on a significantly shorter time table. As per PB § 14-9(9), a petition for a habeas corpus is a privileged case for assignment to trial when placed on the trial list. However, this petition involves an inmate whose punishment includes the sentence of death, a punishment that was last executed in the state of Connecticut on May 17, 1960 when Joseph Taborsky was put to death in this State's electric chair. Given the severity and irrevocability of capital punishment, both parties to this proceeding devoted a considerable amount of time and effort to this case and presented numerous issues and explored all possible avenues of relief and rebuttal. Consequently, what is normally an expedited process took a lengthy, but wholly appropriate given the particular circumstances of the case, amount of time.
Normally in the course of preparing a Memorandum of Decision in a habeas corpus matter, this Court prefers to draft a straight timeline of factual events. It has been this Court's experience that this is usually the most coherent way of presenting the factual basis for the resolution of the petition. In the instant case, however, this straight timeline technique will not work. While this Court must ultimately resolve the question of whether the representation of the petitioner by his attorneys met the Constitutional standard, the answer to this question is inextricably tied to the events that transpired in December 1989 as well as events during the subsequent prosecution. Many of the matters that this Court will be reporting as fact have never been publicly revealed and are coming to light for the first time in the trial of the habeas corpus petition. Consequently, it will be necessity to skip around in time when presenting the facts of this case.
Findings of Fact
The petitioner was the defendant in a criminal case brought in the Judicial District of Waterbury under docket number CR4-175454 and captioned, State v. Cobb. Attorney Gerard Smyth and Attorney Allan McWhirter represented the petitioner throughout the case. Both of these attorneys are admitted to the practice of law in Connecticut. Both were, and continue to be, employed by the Office of Public Defender for the state of Connecticut.
It must be noted that while there were several other criminal matters pending in the Judicial District of Waterbury and Ansonia/Milford at the same time in which the petitioner was being tried for the murder of Ms. Ashe, none of those matters culminated in a conviction and were nolled by the state's taking unilateral action after the petitioner's sentence of death in this docket.
At the time of the petitioner's trial, Mr. Smyth was the head of the Capital Defense and Trial Services Unit of the Office of Public Defender. Attorney Smyth was subsequently appointed to the position of Chief Public Defender. Attorney McWhirter was a senior Public Defender assigned to the Judicial District of Waterbury, he likewise has received a promotion and is now the supervisory Public Defender for the Judicial District of Waterbury.
In June 1989, the petitioner had been arrested and charged with an unrelated Sexual Assault in the 1st degree, Assault in the 3rd degree, and unlawful restraint. These alleged offenses occurred in the town of Naugatuck, Connecticut and were pending in the Judicial District of Waterbury. Attorney David LaBriola, a private practitioner, represented the petitioner in that case. The petitioner was able to post bond in that matter and remained at liberty while his case was pending.
For ease of reference, this will be hereafter referred to as "the Naugatuck incident."
On December 20, 1989, the petitioner was arrested in the Judicial District of Ansonia/Milford and charged with robbery, sexual assault and burglary in connection with an incident that had taken place in the town of Oxford, Connecticut a few days before. The Office of Public Defender was appointed to represent the petitioner in connection with that case. The petitioner was unable to post bond in this case and has remained in the custody of the Commissioner of Corrections continuously since that day.
For ease of reference this will be hereafter referred to as "the Oxford incident."
Prior to his arrest on the Oxford incident however, on December 15, 1989, the petitioner was in the parking lot of the Bradlees' shopping center in Waterbury, Connecticut. On the same day, Ms. Bonita C. parked her car in the lot and entered the shopping center. Shortly thereafter, the petitioner deflated one of her car tires with a valve stem remover. When she returned to her car, the petitioner approached her, pointed to her deflated tire, and offered to change it for her. A friend of Ms. C. fortuitously passed by, however, and instead offered to assist Ms. C., at which time the petitioner left the area without further incident
On December 16, 1989, at approximately noontime, the petitioner was once again in the Bradlees' shopping center parking lot. Ms. Susan R. had parked her car and entered the shopping center. As he had the night before, the petitioner deflated one of the car's tires with the valve stem remover. When Ms. R. returned to her car, the petitioner approached her, told her that her tire was flat, and offered to change it for her. She declined his offer, however, because she lived nearby and her father was able to come to her aid. When her father did so, he noticed that the valve cap was missing from the deflated tire.
On the evening of December 16, 1989, the victim in this case, Ms. Julia Ashe, set out on an unaccompanied Christmas shopping trip by driving her two-door car to the Naugatuck Valley Mall in Waterbury, where she bought some items from Lerner's department store (Lerner's) and from Record Town. She then drove 2.4 miles to the Bradlees' shopping center and parked her car in the parking lot. The petitioner was already waiting in the parking lot consuming an alcoholic beverage. He also had in his possession the valve stem remover and a roll of fiberglass-reinforced tape that he had purchased from the Yankee Trader store earlier in the day. Ms. Ashe had the misfortune to be, as the petitioner himself called her in a statement he later gave to the police, the "first attractive woman who was alone" that the petitioner had seen that evening. It is this that caused the petitioner to select Ms. Ashe for victimization. After the victim had left her car and entered the shopping center, the petitioner deflated one of her car tires with the valve stem remover. When she returned to her car, the petitioner approached her and offered to change the tire. She, unlike the other young women, unfortunately accepted his offer. The petitioner removed the deflated tire and replaced it with a donut spare tire from the trunk of the victim's automobile. At the petitioner's trial, Mr. Richard Sprague testified that on the evening of December 16, 1989, he walked by and saw the petitioner engaged in changing the victim's tire. At some point during the process of changing the tire, the petitioner told the victim that his own car was disabled and requested that the victim give him a ride to a gas station. Perhaps out of gratitude to what appeared to be an act of kindness from a stranger, she consented and the victim and the petitioner then both entered her car with the victim in the driver's seat and the petitioner in the front passenger seat. Shortly after they left the parking lot, the petitioner revealed his true intentions, grabbing her by the arm and telling her he intended to rob her. The petitioner made her stop the car and directed her to go to the back seat of the two-door automobile. Before leaving this location, the petitioner went through the victim's pocketbook and shopping bags and took approximately $300, including two $50 bills. At this point the petitioner became concerned that the victim would call the police and report the robbery before he had enough time to get away. He thereafter moved over into the driver's seat and drove the victim, who at this point was scared but quiet, the approximately 0.8 of one mile until they reached a secluded wooded area off Harper's Ferry Road in Waterbury, near a dam that abutted a pond.
There is a point of contention that remains unresolved in this case. The state alleged that Ms. Ashe was abducted from the Bradlees' parking lot, however, the petitioner contends that she was abducted from the Caldor's parking lot. From a practical point of view, it is now immaterial as to which parking lot the abduction occurred. There is no real dispute at this stage in the proceedings of this case that the petitioner did abduct and murder the victim; he clearly testified to that at the habeas trial. Even if there is some disagreement as to which parking lot was the starting point for the crime, there is no disagreement that the crime took place. What is critical is that the abduction took place.
The petitioner consumed at least one bottle of schnapps and part of a second bottle. Although no evidence was introduce at the habeas trial that would permit this Court to reach a definitive conclusion as to the size of these bottles, it is a reasonable assumption that the bottles were, more likely than not, pint-size bottles or smaller.
The petitioner had been a member of the United States Army and assigned to the motor pool. He had acquired this valve stem remover in connection with his military duties.
This tire was re-inflated during the police investigation into the murder and found to hold air. The tire still holds air, nearly fifteen years after the night it was deflated by the petitioner.
The testimony of Mr. Sprague has also served as a serious point of contention in this case. The petitioner has contended that Mr. Sprague's testimony is false because Mr. Sprague identifies the location at which he observed this incident as the Bradlees' parking lot. As previously noted, the petitioner is adamant that he was not in the Bradlees' parking lot when he abducted Ms. Ashe, but was, instead, in the Caldor lot. The petitioner's concern has been that Mr. Sprague testified falsely at the trial. Even if that were true, and this Court makes no finding in that regard, it is a completely irrelevant fact to the determination of this habeas corpus petition. Further, the petition makes no claim, either express or implied, that the testimony of Mr. Sprague, even if false, would merit the granting of a petition of habeas corpus. Finally, this Court is satisfied that even if the testimony of Mr. Sprague was false, that this went to such a small point and that the other evidence introduced in this case overwhelmingly establishes the petitioner's guilt. Consequently, any error thereby introduced would have been harmless beyond all reasonable doubt.
This, of course, was a lie. The petitioner's car was not in any way disabled.
The victim's fiance, Mr. John DeSantis, had given her this money in a Watertown Federal Credit Union envelope after having cashed her paycheck for her at the credit union the day before.
While there is significant dispute as to what transpired at the crime scene on the evening of December 16, 1989 and the following day, this habeas Court finds the following scenario to have been proven by a preponderance of the evidence. Upon arrival, the petitioner bound the victim's hands and feet with the reinforced tape in order to give him sufficient time to escape. In order to keep her from calling for help, he also applied a gag to the victim, forcing one of her gloves into her mouth and then taping it to her head. The petitioner was careful to ensure that her nose was not covered so that she would still be able to breathe. The petitioner became sexually aroused at this point. He climbed into the backseat with the victim, removed her clothing, gag, and bindings and then proceeded to rape her. During this attack the petitioner taunted the victim by saying to her, "[Y]ou like this. You've never had it like this before." The petitioner believed that the victim had been "turned on" by him. After he had finished, the petitioner and the victim got dressed, he reapplied her bindings, and he attempted to engage her in conversation. He asked Ms. Ashe if she would like to go and get something to eat and to go to a movie. He wanted to know if she would have been attracted to him had they met under other circumstances. During this attempted conversation, he once again became sexually aroused, removed her bindings for a second time and once again proceeded to rape the victim. The petitioner and the victim dressed once again and he then re-applied the gag and re-taped her hands and feet. It appears that at some point after this second rape, Ms. Ashe made what proved to be a fatal mistake by kicking the petitioner in the back. This enraged the petitioner and he accused her of hating black people and being just like all of the others. He then dragged the bound and gagged young woman out of her car to a nearby low wall. Once there he threw her over the wall of the dam onto a concrete apron approximately twenty-three feet below that extended from the bottom of the dam. The ambient air temperature at that time was approximately eighteen or nineteen degrees Fahrenheit. The water at the base of the dam, where it covered the concrete apron, was approximately one foot deep.
There is, of course, but one surviving eyewitness, the petitioner, and, up until his testimony provided at the habeas trial, he had publicly chosen to exercise his Constitutional right to silence guaranteed under the Fifth Amendment to the United States Constitution. The three-judge panel that heard the original trial was therefore limited to the forensic evidence discovered at the crime scene and the expert testimony introduced to explain it. In addition to that evidence introduced at the petitioner's original trial, this habeas court has had the distinct advantage of hearing an eyewitness version of what took place that night and following day. In addition, the petitioner provided a detailed description of his activities at the crime scene to Dr. Kenneth Selig, MD who had been hired by the defense team to evaluate the petitioner. Dr. Selig kept meticulous notes of his conversations with the petitioner. The habeas Court's findings of fact therefore, are an amalgam of the forensic evidence, the expert testimony at the original trial, the statement of the petitioner to Dr. Selig and the eyewitness testimony adduced at the habeas trial. Consequently, this Court believes that the recitation of facts in this Memorandum of Decision is as close to a complete picture of what took place back in December 1989 as is possible.
There are some significant discrepancies between what petitioner reported happened during the sexual assaults and the other evidence in the case. First, the petitioner reports two sexual assaults, the prosecution, however, alleged only one. The petitioner reports only vaginal intercourse, however, the forensic evidence clearly supports that there was medical evidence from her autopsy of forcible anal penetration.
The Court recognizes that there is a significant chance that this recitation of facts may well be closer to the realm of fiction. It must be noted that as regards the interactions between the petitioner and the victim there are only two persons who could possibly shed any light on that and one of them, the victim, is deceased and unable to present her side of what took place. Consequently we are left only with the version that is reported by the petitioner, as well as the reports of the forensic experts who examined the crime scene. There are considerable self-serving aspects to the petitioner's tale. For example, at times he describes a rather tender approach and empathetic connection with the woman he was raping and murdering. Nevertheless, even its version presents a chilling tale of the terror that he must have inflicted on this unfortunate young woman.
The evidence shows that Ms. Ashe was barely five feet tall and weighed 92 pounds at the time of her death.
The petitioner stood at the top of the dam, taunting the victim and yelling obscenities at her for approximately another ten or fifteen minutes. When he tired of this he then left the crime scene and hitchhiked back to the parking lot where he had left his car. When the petitioner got to his car, he was able to start it and he then returned to the murder scene. He shined a flashlight down upon the still alive Ms. Ashe and once again yelled obscenities at her. He contemplated calling someone to help her but rejected this idea. After a few minutes, he left the scene, went to a nearby Cumberland Farms to get some food. He then returned home where he had a good night's sleep for the first time in a long time.
The next morning, the petitioner returned to where Ms. Ashe was. Upon his arrival, he did not see her where she had been the previous night. However, when he climbed down to the bottom of the dam, he discovered her about twenty feet away from where she had been the night before. What took place next at the crime scene is not altogether clear, but is critical to a resolution of this habeas corpus proceeding.
What is clear from all of the available forensic evidence however, is that the victim survived the fall and began to heroically struggle for her life. She apparently located some metal wire mesh, which is used to reinforce concrete, protruding from the ice near the apron. Using the sharp edges of the wire mesh, she was able to remove the bindings from her hands, cutting herself in the process. She also managed to undo the bindings from her feet, removing her right sneaker in the process. She unsuccessfully attempted to remove the gag from her mouth. While attempting to do so, she used sufficient force to cause her to gouge her face with her fingernails and to break a fingernail. When she had removed some of her bindings, with the gag still in her mouth, however, the victim attempted to crawl out of the water onto the abutting rocky shore.
Although the post-mortem examination is not precise as to the cause of the victim's death, there is little dispute that she did not expire as a result of the injuries she may have sustained in this fall.
The victim's body and car were not discovered until December 25, 1989. When discovered, her body was lying face down partially submerged in the stream, her hands were spread apart, and her feet, also spread apart, were protruding from the ice onto the shoreline. Her head and most of her body were encased in ice beyond the waterline. There was evidence indicating, moreover, that before her death her hands and ankles had been bound with tape. Her right foot was unshod, and her right sneaker was missing. Her pants were unbuttoned and totally unzipped, and her underwear was exposed. Beneath the layers of tape around her mouth and nose there was a glove stuffed into her mouth. There were numerous pre-mortem abrasions and contusions on her face, wrists and arms. There were no injuries of significance to the back of her body. There was a hemorrhage of the soft tissue between the vagina and the rectum, consistent with penetration of the rectum. The petitioner's sperm was in her vagina. The Medical Examiner determined that the most probable cause of death was asphyxia.
He did not categorically rule out other causes such as manual strangulation or drowning.
The victim's pocketbook was found in her car but there was no money in it. Although when she had left to go shopping her car had front regular tires on it, when it was found there was a donut spare tire where the left front tire had been, and in the trunk were the left front tire, a single glove and the keys to the car. The valve stem of the removed tire was loose, but when it was tightened the tire retained air, and was still full of air at the time of the criminal trial approximately seventeen months later.
Indeed, the tire was transported to the Courthouse in Rockville, CT for the habeas trial in 2003. At that time, some fourteen years after the murder, the tire was still holding air.
At this point in the recitation of the facts, it is necessary to move ahead in time to the period after the petitioner had been charged with the murder of Ms. Ashe and was being represented by Attorney Smyth who began preparations to represent the petitioner at trial. Since this case was being pursued as a capital felony, two attorneys assigned to the Public Defender's staff were assigned to represent the petitioner. Attorney Allan McWhirter was assigned to the Judicial District of Waterbury and was largely responsible for the guilt or innocence phase of the trial. Attorney Gerard Smyth, the chief of the Public Defender's Capital Defense Unit at the time, was responsible for overall case supervision and the punishment phase in particular.
During the course of preparing for the punishment phase of the case, Attorney Smyth had arranged for the petitioner to be examined by three medical professionals trained in psychiatric and psychological evaluations. At the request of the defense team, Dr. Anne Phillips, PhD., Dr. Kenneth Selig, MD, and Dr. Philip Gardere, PhD examined the petitioner. The primary purpose of these examinations was to try and develop any sort of mitigating evidence that might be used to prevent the imposition of the death sentence if the petitioner were convicted of a capital offense. A secondary purpose, although not believed by Attorney Smyth to be particularly workable, was to try and develop a defense of Extreme Emotional Disturbance (EED) such that the charge of capital murder would be reduced to manslaughter. Notwithstanding this secondary strategy that the defense team wanted to pursue, it was the petitioner himself who was adamant that no such defense, e.g Extreme Emotional Disturbance, be presented to the fact finder.
Attorney Smyth testified at the habeas trial that he was fairly sure that the EED defense would be unsuccessful, nevertheless, he gave consideration to raising it at trial in order to lay the groundwork for an argument of a mitigant at the sentencing phase.
Indeed, in his testimony at the habeas trial, Dr. Kenneth Selig testified that in May of 1991 he had advised Attorney Smyth that he would be unable to support the EED defense and that there was anything close to a viable insanity defense available in this case.
Dr. Kenneth Selig is both a Board Certified psychiatrist and an attorney-at-law. He graduated from the University of North Carolina in 1972. He subsequently earned his Medical degree from Boston University and a Juris Doctor degree from Yale. He has been a practicing forensic psychiatrist since the early nineteen-eighties and has consulted with defense teams on numerous capital felony cases. He has had a long-standing relationship with the Connecticut Public Defender's office, is well regarded by those attorneys and is frequently involved with their cases. Attorney Smyth quite naturally turned to Dr. Selig in the instant case as well.
In the course of preparing for this case, Dr. Selig spent something like eight hours interviewing and examining the petitioner. He acquired numerous documents from the petitioner's defense attorney about the crime, the petitioner's upbringing and the military records of the petitioner. He either personally interviewed or reviewed transcripts of interviews by defense investigators of most of the petitioner's family. Dr. Selig compiled copious and detailed notes of his interviews and investigation of the forensic psychiatric picture of the petitioner. During the course of these interviews, the petitioner freely and in great detail told a version of what happened in December 1989 to Dr. Selig.
It is of note that the petitioner now testifies that he no longer has any independent recollection of what transpired between him and the victim. He does, however, insist that he was totally honest in regard to what he told Dr. Selig back in 1991. The petitioner has, however, adopted the version of what is recorded in Dr. Selig's notes as being the truth.
On the night of the abduction, the petitioner reports that he eventually made his way back to the crime scene, stopping along interstate 84 at a spot where, after a short walk, he could see the victim lying at the bottom of the dam. At this time, the petitioner shined a flashlight upon her and saw that she was still moving and was, therefore, still alive. At first he felt sorry for her and then his rage returned and he once again began to taunt her. He left the scene while Ms. Ashe was still alive and made no efforts to summon help for her or to rescue her himself. Indeed, the petitioner went to get something to eat and then returned home to sleep.
The next day, December 19, 1989, the petitioner returned to the scene and reports finding that the victim was no longer lying at the foot of the dam. At first, he thought she may have been rescued, however, almost immediately, he saw her lying about twenty or thirty feet away in the snow, out of the stream and partially up the bank. When he went down to where she was lying, he discovered that she was dead. He then propped her up against a rock, unbuttoned her pants but did not pull down the zipper. The petitioner told Dr. Selig that he sat there staring into her eyes for some period of time, feeling sorry for the now deceased young woman. He ultimately reported feeling sexually aroused. When the petitioner left the scene, he left Ms. Ashe's body propped up against a tree and completely out of the water. He did not leave her with her clothing disarrayed, except for the top button of her pants that he had unbuttoned.
It is noteworthy that the photographs of the victim that were taken at the time her body was recovered from the ice-covered stream show that both of her eyes were closed.
These facts came to be known during the habeas trial as the "lurid details" of the crime.
Given the forensic evidence determined by the state in this case, and in particular, the condition of Ms. Ashe's body when she was found, it is extraordinarily unlikely that the version of what took place at the bottom of the dam the next day as related to Dr. Selig by the petitioner is completely accurate. This is a critical finding of fact in the resolution of this case.
The central issue in this habeas petition revolves around the decision by Attorney Smyth to not call Dr. Selig to the stand during the punishment phase. The petitioner is adamant that the failure to do so was ineffective assistance of counsel, whereas the respondent has defended this as a proper tactical decision made by the petitioner's trial counsel. Although a habeas trial is not supposed to be a retrial of the original case, given the importance of this issue, this court permitted the petitioner to explore the testimony of Dr. Selig as if he were testifying at the original trial. Likewise, the respondent was permitted to cross-examine him much as the prosecution might have done at the original trial. Dr. Selig opined that the petitioner had suffered from a lifelong rage that he had previously been able to contain though sublimation of the rage into other outlets, such as, pornography. However, "[a]s Dr. Selig explained, became of Mr. Cobb's severe depression at the end of 1989, his ability to control his rage had deteriorated substantially, leading to the spiraling series of events in December 1989 which culminated in his crime." Petitioner's Post-trial Brief dated May 13, 2004, Page 13. Consequently, it was Dr. Selig's opinion that when the victim kicked the petitioner, he lost the ability to control himself and committed the fatal act. Dr. Selig's opinion is grounded upon the premise that the petitioner's version of events at the bottom of the dam is the truth. In fact, Dr. Selig candidly testified at the habeas trial that if the prosecution's version of events were true, then his opinion regarding the existence of a mitigant would change. Therefore, this court's determination that the petitioner did not tell the truth to Dr. Selig when interviewed by him goes to the very heart of the Doctor's potential testimony at the original trial.
The disappearance of Ms. Ashe had been promptly reported to the police, and had become the subject of a police investigation and local news media coverage. While in the process of executing an unrelated consent search of the petitioner's apartment in connection with the Oxford incident, the police had located some evidence that gave them reason to suspect that the petitioner might have some connection with, what was still at that point, the unexplained disappearance of Ms. Ashe. Consequently, when the petitioner was transported to the GA4 courthouse on December 27, 1989 for arraignment on another unrelated matter arising in the town of Naugatuck, the police were most interested in speaking to the petitioner about Ms. Ashe. It was during this conversation with the police that the petitioner confessed to the abduction and murder of the victim.
There was an ancillary issue raised at the habeas trial surrounding the events that took place during this arraignment During the pretrial phase of the criminal trial, the petitioner and his trial defense counsel raised a motion to suppress the statement that was given to the police on the grounds that the statement was obtained in violation of State v. Stoddard, 206 Conn. 157 (1988). This matter was fully litigated before the Court, Pellegrino, J. and decided adversely to the petitioner. During the habeas proceeding, the petitioner complained that his trial defense counsel were ineffective in not calling him to the stand to testify at the pretrial suppression hearing before Judge Pellegrino. This testimony would have been simply that had Mr. Cobb been aware that there were some public defenders waiting to talk with him, he would never have given his statement to the police. It is most likely that the testimony would have been viewed as self-serving anyway. The issues surrounding the statement have already been fully litigated at the trial and on appeal, State v. Cobb, 251 Conn. 285 (1999). Since the evidence at the suppression hearing is that once he was aware of the lawyers who wanted to speak with him, Mr. Cobb actually stopped talking to the police, any testimony by Mr. Cobb to the effect that he would have done exactly what he did do was redundant at best. Consequently, there can be no prejudicial effect for the defense team failing to call Mr. Cobb at the suppression hearing and this is summarily rejected by this Court as any basis for relief in the habeas proceeding.
At that time, the petitioner was living in an apartment, located at 85 Aetna Street in Naugatuck, with a friend, George Fonte, from whom he rented a room for $300 per month. At some point during the early morning hours of December 17, 1989, the petitioner made a payment on his rent by leaving $250 of the cash that he had stolen from the victim, including the two $50 bills, on the kitchen table. Later that same morning, the petitioner went to the Jean Country store at the Naugatuck mall where, giving a false name and address, he returned the victim's jeans, which she had purchased at 6:40 p.m. the previous day for a cash refund in the amount of $19.90. On the basis of these facts and the petitioner's confession, charges of murder were ultimately filed against him.
Moving ahead in time again to the trial of this case, there came a point at which the petitioner had to make the choice as to whether he wished to waive his right to a trial by jury at the sentencing phase and accept trial before a three-judge panel. Attorney Smyth advised the petitioner that it would be a wise decision to waive the jury for several reasons. First, the Waterbury state's attorney had a good rapport with the juries in that judicial district and would be effective in arguing for a death penalty from the jury. More importantly, Attorney Smyth argued that the details of the petitioner's actions at the foot of the dam would be highly inflammatory to a jury. Attorney Smyth advised the petitioner that calling Dr. Selig would necessitate the revealing of these facts and he felt that a three-judge panel would be better able to put aside the emotionalism of the "lurid details," and better judge the facts of the case. Consequently, the petitioner agreed to do so. It is clear to this habeas court that at the time Attorney Smyth was advising the petitioner relative to his decision to waive the jury for sentencing, he fully intended to call Dr. Selig as a witness in mitigation. While there may be differences of opinion as to whether the advice to waive the jury was good advice, it is clear to this court that there was no flaw in the advice that Attorney Smyth provided his client.
The petitioner was reluctant to waive the jury because he was aware that all it would take for him to avoid a death sentence was to have one juror hold out against its imposition. However, he wanted to have Dr. Selig testify and following the advice of his counsel as to the impact that Dr. Selig's testimony might have on a jury vis-a-vis a three-judge panel, decided to go along with the waiver. The decision to waive a jury is a decision that is reserved to the client in a criminal representation. In this case, the petitioner did make that decision. The decision as to which witnesses to call at the trial is a decision that is left to the attorney in consultation with his or her client. At some point significantly after the jury waiver decision but before the end of the sentencing phase, Attorney Smyth made a decision not to call Dr. Selig as a witness. The exact timing of this decision is not altogether ascertainable, although it is more likely than not that it took place late in the case. At any rate, this court finds that the advice to waive the jury at sentencing was proper and that Attorney Smyth, in all good faith, intended to call Dr. Selig to testify at the time he gave that advice to the petitioner.
The petitioner makes the argument in his post-trial brief that Attorney Smyth did not adequately consult with him before making the decision not to call Dr. Selig. As support for this argument, the petitioner cites ABA Standard for the Criminal Defense Function, Std. 4-5.2.1(b) which provides that "Strategic and tactical decisions should be made by defense counsel after consultation with the client where feasible and appropriate. Such decisions include what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made and what evidence should be introduced." This Standard makes it clear that the final decision authority rested with Attorney Smyth. There is some dispute as to whether or not Attorney Smyth advised the petitioner of the decision to forgo calling Dr. Selig prior to the decision being made. If so, this does constitute a problem in regard to the manner in which Attorney Smyth kept his client informed and could have led to a complaint that Attorney Smyth violated Rule 1.4(a) of the Rules of Professional Conduct. Nevertheless, since this alleged oversight on the part of Attorney Smyth does not undermine the reliability of the petitioner's conviction and sentence, it does not give rise to any right to habeas relief.
As already noted and discussed in greater detail hereafter, Attorney Smyth did not want the state's attorney or the three-judge panel to hear the details of what took place at the bottom of the dam. The petitioner's conduct was, at best, reprehensible, and probably would have gone a long way towards proving depravity as well as heinousness and cruelty in the commission of the murder. It is clear to the habeas court that Attorney Smyth would have called Dr. Selig without a moment's hesitation had these details come before the court through the testimony of Dr. Phillips or Dr. Gardere. However, when the defense was able to present the testimony of these two mental health professionals without the details being revealed, it became incumbent upon Attorney Smyth to consider forgoing the testimony of Dr. Selig. While all three of the mental health professionals had been aware of the same facts to a more or less equal degree, it was only Dr. Selig that saw fit to make a detailed notation of what the petitioner reported to him in his thirty-seven pages of interview notes. It is clear that had Dr. Selig testified at the trial, that these notes would have been available to the prosecution. These notes would have provided fertile ground for a devastating cross-examination of Dr. Selig.
Additional facts will be discussed, as necessary, in subsequent portions of this decision.
Discussion Prefatory Comments
The petitioner now comes before this Court seeking to have this court set aside his sentence of death, overturn his conviction of guilty to the charge of felony murder in violation of CGS § 53a-54c, and order that his case be returned to the docket for a new trial and/or appeal. It is important to understand that this instant proceeding is an action seeking the issuance of a writ of habeas corpus. This case having been tried, appealed to the Connecticut Supreme Court and the United States Supreme Court is now in the "court of last resort." A petition for a writ of habeas corpus is, therefore, an application for extraordinary judicial relief in which, contrary to the criminal trial court, the burden rests with the petitioner. Moreover, it is clear that, as a result, there are many matters that simply are not before this court. Some of the issues surrounding the death penalty, while important of significant social import, and controversial, are not even within the province of the Judicial branch of government and therefore will not be considered by this court.
This may seem to be difficult for a layman to accept given the oft-repeated phrase that "one is innocent until proven guilty." However, in a habeas corpus proceeding, the petitioner is not innocent and has, in fact, been already proven guilty beyond all reasonable doubt. Moreover, a habeas petitioner has more likely than not had the opportunity to have at least one appellate court review the case to determine if there have been any errors of law that were made by the trial court. Given that a habeas petition is often called the "court of last resort" it should not be unexpected that the burden of showing an irregularity must now rest with the petitioner.
First and foremost it is imperative to understand that this action is not a re-trial of the petitioner's original case. Sedrick Cobb comes before this court, not as an innocent citizen of the state of Connecticut who is being accused of committing a crime. He comes before this court as a convicted felon whose guilt has already been established by proof beyond all reasonable doubt. Since the petitioner has not raised a claim of actual innocence in this case, there is no necessity for this court to re-determine whether he has committed the crimes. He has. Indeed, the petitioner stands before this court as a convicted inmate. Moreover, in his sworn testimony to this court, he has clearly established that he was, without any doubt, guilty of the offenses charged. Consequently much of the evidence produced in his original trial, while important to the determination that court had to make, is of little to no relevance in this court.
The petitioner's original trial in this case took place in the Judicial District of Waterbury in the late spring and early summer of 1991. The trial on the merits took eight court days and the penalty phase consumed sixteen days of trial. In contrast this habeas corpus proceeding consumed a total of thirty-one full days of trial testimony, seven days longer than the petitioner's original trial.
See footnote 2, infra.
During cross-examination the petitioner clearly admitted that he had abducted, raped and murdered Ms. Ashe. His culpability for the crimes, therefore, has been established not only through the three-judge panel's finding beyond a reasonable doubt that he was guilty, but also through his own admissions at the habeas trial.
Second, this action is not an appeal of the petitioner's conviction. The petitioner has had a direct appeal of his conviction to the Connecticut Supreme Court that was unsuccessful. State v. Cobb, 251 Conn. 285 (1999). A subsequent petition for certiorari to the United States Supreme Court was turned down, 531 U.S. 841, 121 S.Ct 106, 148 L.Ed.2d 64 (2000). A petition for habeas corpus is not a substitute for a direct appeal of a conviction. Johnson v. Commissioner, 218 Conn. 403 (1991).
Third, this action is not concerned with the question as to whether the petitioner should, or should not, be the beneficiary of some form of clemency. The task before the habeas court is to determine the reliability of the petitioner's conviction and subsequent sentence in light of applicable state and federal constitutional standards. Unlike the task that confronted the trial court, the question, then, is not whether the sentence of death is an appropriate punishment for the petitioner's crimes. Moreover, the question of whether the sentence of death should be executed by the state is similarly not an issue in this court for that is an issue that is solely reserved to the state Board of Pardons. Clemency does not go to the question of whether a particular type of punishment was appropriate or not. By its very nature, when considering the issue of whether clemency is merited, the deciding authority readily assumes that the proposed punishment was lawfully imposed, was appropriate and merited by the evidence. In granting clemency, the deciding authority will look at all of the circumstances to determine whether the people of the state of Connecticut will, as an act of mercy, offer the condemned man some relief from his duly adjudged fate. The granting of clemency is an extrajudicial function and clearly not a matter for this habeas court.
See CGS § 18-26, et. seq. "Jurisdiction over the granting of . . . commutations from the sentence of death shall be vested in the Board of Pardons."
As an aside, this Court will note that the petitioner was respectful, appeared remorseful, and seemed to recognize the enormity of his act. The petitioner made no attempt to minimize his culpability for what he had done and appeared to deeply regret his actions. While the true feelings of a man can never be definitively known, from all outward appearances, it appeared as if the petitioner has, over the past thirteen years while awaiting execution of the death sentence, grown to appreciate that he had committed a terrible crime and grown remorseful for the pain he had inflicted upon others. His remorse did not appear to be a bemoaning of his personal plight, but a true regret for the wrong he had done to Julia Ashe, her family, his family and society. In fact, shortly before the start of evidence in this habeas case, the petitioner indicated that he wished to withdraw his petition. He indicated he had made his peace with his God and was accepting of his fate. Notwithstanding, this court gave the petitioner two weeks to contemplate the irrevocability of that decision. Upon further reflection and discussion with his family, he elected to go ahead with the habeas trial.
Finally, this action is not an opportunity for the petitioner to make a general facial challenge to the constitutionality of the death penalty under either the state or federal constitutions. "Connecticut case law has recognized the facial constitutionality of the death penalty under the eighth and fourteenth amendments to the federal constitution. See, e.g. State v. Davis, 158 Conn. 341, 358, 260 A.2d 587 (1969), vacated and remanded on other grounds . . . Federal constitutional law does not forbid such a statute outright. Gregg v. Georgia, 428 U.S. 153 (1976)." State v. Webb, 238 Conn. 389 at 403 (1996). Our Supreme Court concluded in State v. Ross, 230 Conn. 183 at 248 (1994), that the death penalty did not violate the due process requirements of the Connecticut Constitution even in the light of evolving and contemporary standards of decency and civilization. A year later, in State v. Breton, 235 Conn. 206, our Supreme Court once again considered a facial challenge to capital punishment and once again rejected it "for the reasons enumerated in Ross . . . the death penalty is not per se prohibited by article first §§ 8 and 9 of the state constitution." In State v. Webb, 238 Conn. 389 (1996), the Supreme Court rejected an ingenious argument that the death penalty violated article first, § 1 of the state constitution. There, it was argued that by entering into a social compact to form a constitution, there was a natural right to life incorporated into the state constitution that no person would surrender. Nevertheless, the Court concluded that this social compact "does not confer [such a] natural right to life that the legislature, acting under appropriate constitutional constraints regarding death penalty legislation cannot take away." Webb, supra at 411. Notwithstanding, while the Judicial branch of government is not the forum by which to raise a frontal assault upon the facial validity of the death penalty, "the imposition of the penalty must conform to constitutional constraints." Id. 405. It is axiomatic that the determination as to whether this state should, or should not, have a capital punishment statute is for the people of the State, acting though the General Assembly and the Governor to determine, not the Courts.
Article First, Sec. 1 states that "[a]ll men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community."
The petitioner has alleged ten specific bases upon which he asserts that relief could and should be granted by this Court.
The Court notes that in the original handwritten petition filed by the petitioner on a pro se basis, he included the single word, "innocence," as one of his bases for relief. Given that a person who is not an attorney at law filed this original petition, it is reasonable to conclude that this single word may, indeed, constitute a claim for relief on the basis of actual innocence. Pointedly, however, the amended petition does not specifically raise the claim of actual innocence as a basis for relief although it does contain a sentence that incorporates the original handwritten pro se petition by reference. Arguably, one could then read this as including the claim of actual innocence in the amended petition. When counsel for the respondent made opening argument, there was reference to the petitioner's claim of "actual innocence." Both counsel for the petitioner and the Court expressed the opinion that such a claim was not being raised in this amended petition. Upon canvass of both the petitioner and the petitioner's counsel in the record, it was clear that any claim of actual innocence was being abandoned, to the extent that it was even raised. Further testimony by the petitioner in the trial of the habeas proceeding made it clear that no claim of actual innocence was being or could be raised. The petitioner clearly, forthrightly, and unequivocally testified that he had, in fact, committed the crimes alleged and that he was guilty of the kidnapping, rape and murder of Ms. Julia Ashe.
CT Page 17438 1. The petitioner was denied the effective assistance of trial defense counsel in the pretrial and guilt phases of the trial.
2. The petitioner was denied the effective assistance of trial defense counsel in the penalty phase of the trial.
3. The petitioner was denied the effective assistance of appellate counsel on his direct appeal to the Connecticut Supreme Court.
4. The petitioner did not knowingly or validly waive his right to trial by jury at the guilt and penalty phases of the trial.
5. The petitioner did not knowingly or validly waive his right to testify at the guilt or penalty phases of the trial.
6. The petitioner did not knowingly or validly waive his right to present critical evidence at the guilt and/or penalty phases of the trial.
7. The three-judge panel before which the petitioner was tried and sentenced exceeded its permissible authority by combining the duties of judicial authority and fact finder.
8. The petitioner was convicted and sentenced on the basis of statements made by him and illegally obtained by law enforcement personnel.
9. The petitioner was convicted and sentenced on the basis of evidence illegally obtained from the petitioner's residence and automobile.
10. The sentence of death imposed upon the petitioner is illegal and unconstitutional.
The petitioner has identified nine specific bases upon which he asserts this court should find the sentence of death to be unconstitutional. One of these bases, contained within paragraph 7(j)(8) of the Second Amended Petition alleges that "Connecticut's capital punishment scheme is freakishly and arbitrarily administered and Connecticut's capital punishment procedures are impermissibly infected by racial and geographic bias, in violation of General Statutes § 53a-46a, Article First, Sections 8, 19, and 20 of the Connecticut Constitution and the Fifth, Eighth and Fourteenth Amendments to the United States Constitution." In its decision in State v. Reynolds, 264 Conn. 1, at 233 (2003), the Supreme Court noted that "judicial economy, as well as fairness to both defendants and the state, mandates that this claim [ i.e. that the death penalty is imposed in a racially arbitrary and discriminatory manner in Connecticut] be litigated before the same habeas judge and in the same general, consolidated hearing, on behalf of all defendants who have been sentenced to death." To this end, former Chief Justice Robert Callahan was appointed in December 2002 as a special master to manage the process and timetable by which this claim would be litigated in the habeas court. Consequently, on July 9, 2003, the portion of the petitioner's habeas petition relating to this claim was referred to former Chief Justice Callahan. All other aspects of the habeas petition are being adjudicated before this proceeding.
a. The three-judge panel relied upon impermissible and unsupported aggravating factors and rejected the petitioner's evidence of non-statutory mitigants.
b. The aggravating factor found by the three-judge panel was impermissibly vague and misapplied.
c. The aggravating factor found by the three-judge panel was an element of the offense.
d. Impermissible retroactive changes in the meaning of an element of the offense were used to support a sentence of death.
e. The petitioner was denied his right to present critical evidence of mitigation.
f. The three-judge panel arbitrarily refused to find mitigating factors that would have precluded a sentence of death.
g. The petitioner was denied adequate notice of the theory of aggravation relied upon by the State during the penalty phase.
h. Connecticut's capital punishment scheme violates state and federal constitutional prohibitions on cruel and unusual punishment.
The trial of the habeas petition has further significantly narrowed the issues before this court. For example, while there was a challenge to the representation of the petitioner by his counsel during the pretrial and trial phases, there was a near total lack of evidence introduced at the habeas trial to support that contention. Consequently, the petitioner has effectively abandoned this claim in particular, much like the majority of his claims. Moreover, the attack upon the death penalty in general is outside the jurisdiction of this habeas court. The specific allegations raised in paragraph 7(j) of the second amended petition that remain before this court are all matters that could have and should have been raised in the petitioner's direct appeal. In the return, the respondent has properly raised the affirmative defense of procedural default as required by Miller v. Commissioner of Correction, 63 Conn.App. 726, 733-34 (2001). This habeas court does find these matters to be procedurally defaulted. Moreover, the petitioner has failed to demonstrate any cause for the failure to do so or prejudice accruing to him thereby. Accordingly, this court will find that there is no basis upon which relief can be granted.
This brings to mind the quote attributed to Abraham Lincoln (1809-1865), "In law, it is a good policy to never plead what you need not lest you oblige yourself to prove what you can not." Letter to Usher F. Linder dated February 20, 1848. Collected Works of Abraham Lincoln, Vol. I, page 453, Rutgers University press (1953, 1990).
The petitioner's post-trial memorandum filed on May 13, 2004 makes it clear that the petitioner has grounded his argument for relief in this habeas petition upon: (1) the conduct of his trial defense counsel in the penalty phase of the trial, and (2) the failure of his appellate counsel to directly argue a Clemons v. Mississippi, 494 U.S. 738 (1990) issue on appeal. In particular, the petitioner focuses upon the decision by Attorney Smyth not to call Dr. Selig to testify in mitigation. The petitioner also attacks the effectiveness of his lawyers by not calling an expert witness to challenge the prosecution's version of how the murder took place. This revolves around the failure of the trial defense team to call Dr. Dominick Di Maio, a forensic pathologist, to dispute the state theory.
"Unless a habeas petitioner shows cause and prejudice, see Wainwright v. Sykes, 433 U.S. 72 (1977), a court may not teach the merits of: (a) successive claims that raise grounds identical to grounds heard and decided on the merits in a previous petition, Kuhlmann v. Wilson, 477 U.S. 436 (1986); (b) new claims, not previously raised, which constitute an abuse of the writ, McCleskey v. Zant, 499 U.S. 467 (1991); or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims, Murray v. Carrier, 477 U.S. 478 (1986)." Sauyer v. Whitley, 505 U.S. 333, 338 (1992).
At the outset one must understand that there is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct 853, 859, 122 L.Ed.2d 203 (1993) The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though our courts have recognized that "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving entitlement to the grant of a writ rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra, at 422.
The writ of habeas corpus is an ancient and time-honored component of our Anglo-American judsprudence "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: `the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is `a writ antecedent to statute, and throwing its root deep into the genius of our common law . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I." Fay v. Noia, 372 U.S. 391 at 399 (1963). When the United States achieved independence from England, the writ was embodied in our law as well. "Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a `great constitutional privilege.' Ex parte Bollman and Swartwout, 4 Cranch 75, 95." Fay v. Noia, infra, at 400 (1963).
Edward I reigned in England in the late 13th century AD.
Issuance of a writ of habeas corpus is a remedy whose "most basic traditions and purposes are to avoid the grievous wrong of holding a person in custody in violation of the federal constitution and thereby protect individuals from unconstitutional convictions and help guarantee the integrity of the criminal process by ensuring that trials are fundamentally fair." O'Neal v. McAnnich, 513 U.S. 432 at 442 (1995). Moreover, when a court reviews a petition for habeas corpus, "it must decide whether the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. The court does not renew a judgment but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722 at 730 (1991). So, the writ of habeas corpus "has been for centuries esteemed the best and only sufficient defense of personal freedom." Lonchar v. Thomas, 517 U.S. 314 (1996). Nowhere is this truer than in capital litigation. "Every member of . . . [the United States Supreme] Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any punishment and hence must be accompanied by unique safeguards." Spaziano v. Florida, 468 U.S. 447 (1985).
There is one evidentiary issue that bears some discussion before addressing the specific issues in this case. This involves considering what is meant by the term, "the expanded record," used in the Connecticut Practice Book.
Prior to the start of trial, counsel for the respondent issued a subpoena to the Clerk's Office, Superior Court, Judicial District of Waterbury, to produce all photographs and documentary evidence from the underlying criminal proceedings. Counsel for the respondent subsequently requested that all full exhibits from the underlying criminal proceedings be included, in accordance with Practice Book § 23-36, as part of the expanded record before this court. Respondent's counsel then sought under Practice Book § 23-36 to have all physical evidence from the underlying criminal proceedings admitted as full exhibits in the instant habeas corpus proceeding.
On January 21, 2004, counsel for both the petitioner and the respondent stipulated that all exhibits admitted as full exhibits in the underlying proceedings could be considered by the habeas court in deciding the claims asserted by the parties.
Practice Book § 23-36 authorizes "[a] party [to] file with the court any portion of the transcript and any portion of the superior court, appellate court or supreme court record or clerk's file as part of the record before the habeas court." As the definition of the term "record" shows, both physical exhibits and testimonial evidence are integral parts of the record. Practice Book § 23-36 authorizes, consequently, exhibits from the petitioner's underlying criminal proceedings to become past of the expanded record before this habeas court. The question then becomes whether the process by which the expanded record may readily be created by filing any portion of the trial or appellate court records automatically converts those items into full exhibits. Stated differently, does Practice Book § 23-36 obviate the necessity for formal evidentiary rulings simply through the process of filing some portion of a record in accordance with § 23-36?
"The official report of the proceedings in a case, including the filed papers, the verbatim transcripts of the trial hearing (if any), and tangible exhibits." BLACK'S LAW DICTIONARY (7th Ed. 1999), at 1279.
"A document, record or other tangible object formally introduced as evidence in court." BLACK'S LAW DICTIONARY (7th Ed. 1999), at 595.
Code of Evidence § 4-2 provides that "All relevant evidence is admissible, except as otherwise provided by the constitution of the United States, the constitution of this state, the Code [of Evidence] or the General Statutes. Evidence that is not relevant is inadmissible." Conn. Code Evid. § 4.1 defines "Relevant evidence" as "evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence." However, even relevant evidence is not necessarily admitted, for it may be excluded under § 4-3 of the Code.
"Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion." (Internal citations omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 569, 657 A.2d 212 (1995).
An interpretation of P.B. § 23-36 that allows anything filed in accordance with that section to automatically be admitted as evidence is, in this court's opinion, an overly broad reading. Such an interpretation would result in a trial court's total abdication of its inherent discretion, responsibility, and duty to determine the materiality and relevance of evidence and make evidentiary findings. A purpose of the Code of Evidence is "to promote the growth and development of the law of evidence through interpretation of the Code and through judicial rule making to the end that the truth may be ascertained and proceedings justly determined." Conn. Code Evid. § 1-2(a). There is little, if any, growth, development, interpretation and rule making to be wrought from wholesale admission of evidence without a court determination of materiality and relevance.
Consequently, this court finds that Practice Book § 23-36 does not provide for the indiscriminate wholesale admission of evidence via the process of expanding the record before the habeas court. In accordance with the stipulation of the parties, however, the court will be free to consider anything in the record of the original trial that is relevant and material to decide the claims asserted, as framed by the pleadings, by the parties to this habeas corpus petition.
I. Ineffective Assistance of Trial Defense Counsel
A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. Moreover, all criminal defendants are entitled to the representation of counsel. The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense." The sixth amendment right of confrontation and right to counsel is made applicable to the states through the due process clause of the fourteenth amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), respectively. The Sixth amendment right to counsel is the right to an effective counsel.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into, the formula "beyond a reasonable doubt" seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
It is not, and never has been, for the trial defense counsel to make the decisions that a client must make. The defendant decides how to plead, whether to testify, whether to waive the right to trial by jury, etc. Nevertheless, effective representation is crucial. "Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721 (2002). Consequently, an attorney who fails to offer his or her client proper counsel at critical junctures in the trial may well be providing ineffective representation.
Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 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, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
As already noted, a criminal defendant is entitled to the representation of trained and competent legal counsel. Notwithstanding, "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1954)." Yarborough v. Gentry, 540 U.S. (October 20, 2003). This court sincerely doubts that any defense attorney has ever conducted the perfect criminal trial. The trial of a criminal matter is often, spoken in terms of, and analogized to the conduct of military operations. A courtroom is a battlefield for adverse positions. There are direct frontal assaults, flanking movements, strategic retreats, and, at times, Pyrrhic victories. A trial lawyer is charged `with making a multitude of strategic and tactical decisions, depending upon the weapons and ammunition he or she may have been able to amass during the pretrial preparation. Most importantly however, the trial attorney must conduct the trial while under the influence of the "fog of war." When reviewing the actions of counsel in a post-conviction proceeding such as a habeas petition, it is incumbent upon all parties to remember that we who sit back and coolly dissect the decisions of the trial attorney are not subject to that "fog of war." Analogies to military operations aside, it must be remembered that "[r]epresentation is an art and an act or omission that is unprofessional in one case may be sound or even brilliant in another." Strickland, at 693.
This expression is generally attributed to Karl Von Clausewitz (1780-1831) who is quoted as having written in his work, On War. "The great uncertainty of all data in war is a peculiar difficulty, because all action must, to a certain extent, be planned in a mere twilight, which in addition not unfrequently — like the effect of a fog or moonshine — gives to things exaggerated dimensions and unnatural appearance."
It would, therefore, be seductive to give in to the temptation to review the efforts of Attorney Smyth in the trial of this case, armed with the knowledge that the petitioner has, in fact, been sentenced to death. It is, after all the ultimate bad result. Knowing this, it is then tempting to say that anything that the defense team did differently could have benefited the petitioner. After all, having been sentenced to death, there is no way that the petitioner could incur any further prejudice. The task before the petitioner is to prove to this court that there is something (concrete, not esoteric) that should have been done and that this created a reasonable probability that the outcome would have been different. For Attorney Smyth, however, at the time he made his decisions in regard to the representation of the petitioner the outcome of the case was clouded in fog. It is therefore mandatory that this court review Mr. Smyth's actions as if it was similarly unaware of the outcome of the trial.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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" Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
The primary area in which the petitioner asserts Attorney Smyth's performance was deficient revolves around the decision to forego calling Dr. Kenneth Selig in the punishment phase of the trial. From the beginning of his representation it was clear to Attorney Smyth that if he were to be successful in keeping the petitioner off of Death Row, it was going to turn around the mental health defense. In an attempt to build a case for mental health issues as a mitigating factor to take the death penalty out of play, Attorney Smyth developed a strategy of having the petitioner examined by Dr. Selig, Dr. Phillips, and Dr. Gardere. It is clear that the petitioner did not develop a rapport with Dr. Phillips, more likely than not, due to her gender and his difficulties in relating to members of the opposite sex. Indeed, he was less than honest with her during their sessions to the point where her ability to offer helpful testimony had been significantly undermined by the petitioner's own actions. On the other hand, the petitioner did find that he was able to relate to Dr. Selig.
The petitioner appears to have sabotaged not one, but two attempts to administer the Minnesota Multiphasic Personality Inventory (MMPI) through deceptive answers. Dr. Phillips herself offered that "the invalid results stem from a combination of Mr. Cobb indeed attempting to present himself as an extremely disturbed and needy individual and to present his sense of inadequacy in a very dramatic fashion combined with Mr. Cobb's general conviction that he is an extremely alien and idiosyncratic individual." Petitioner's Exhibit 8, July 25, 1991, p. 41.
This may be due, in no small measure, to the fact that unwittingly Dr. Selig provided him with a "justification" for the horrendous actions he had taken. Dr. Selig opined that the petitioner's parents had beaten him as a child, leading to an uncontrollable rage. He suggested that it was the grandparent's fault for the way in which they raised the petitioner's parents. He felt that the petitioner's putative girlfriend, "Y" was to blame by rejecting his advances. He even suggested that the victim was to blame when she kicked the petitioner during the sexual assaults, thereby causing the rage to come out. Dr. Selig ultimately opined that the murder was in some way therapeutic for the petitioner. Dr. Selig paints the picture of the petitioner as being a victim of this uncontrollable rage and the actions of others that was relieved by the murder of the victim. Given the position in which the petitioner found himself in, coupled with his own natural disbelief at what he had done, it is not surprising that the petitioner felt a rapport with Dr. Selig. Moreover, it is clear that Dr. Selig himself valued this relationship with the petitioner. Dr. Selig commented that the petitioner needed "a particularly large amount of understanding, of affection of attention, of compassion, of love. Q: And why do you say he needed that large amount? A: Because when I told that to him, he broke down. It was a very powerful moment in the interview — in the interviews. And I think that the reason that it happened, that he broke down is — trying to be as humble as I can be — that with me he finally had somebody who understood him, and who got past, you know, the bad Ricky, the stealing, the thief, the pain in the neck, you know all of this, the rapist, and got closer to his core, okay, even past the rage." Record of Trial, December 9, 2003, pp. 68-69.
In Dr. Selig's opinion, the petitioner was "a very psychiatrically impaired individual. He has consistently felt estranged from the world and estranged from himself. He has always had a self-concept that was based in being evil and bad. This self-concept has been confirmed by his rejection from others and repetitive punishment amounting to extreme physical abuse by his father. This confirmed his sense of himself as evil. Feelings of rage resulted from the punishments and rejections. He attempted to disassociate from this rage by repressing it. Whenever he would feel angry or enraged, he would begin to feel like he was somebody else. He struggled with these two parts of himself, that which was good (that is to say a good boy and a good son who was reliable and obedient) and that which was bad (mean aggressive, pornographic, and a thief). As he grew older, these two parts of himself split apart further and particularly his negative side increased in intensity . . . When finally rejected by both his wife and then [Y], he had run out of the meager strategies that he had developed for containing his rage which over a period of several months, overwhelmed him and finally erupted, resulting in situations that were extremely harmful to both others and himself." See Report of Dr. Kenneth Selig dated March 12, 1991. It was this opinion that was to form the linchpin of the petitioner's presentation to the three-judge panel at the sentencing phase.
Notwithstanding, there were to be several major difficulties with this strategy. First, the petitioner had provided Dr. Selig with numerous details of his conduct on the night and day after the murder that were unknown to the prosecuting authorities. Dr. Selig's notes, which would have been disclosed to the prosecutor had he taken the stand, clearly showed that the petitioner returned several times to the scene of the crime. In these notes, the petitioner reports finding the now-dead victim some twenty feet away from where he had left her to die the night before. He reports becoming sexually simulated at the sight of her body. This is a powerful fact that was unknown to the prosecutor and would have undoubtedly been revealed had Attorney Smyth called Dr. Selig to testify. At sentencing, the state was relying upon proving the aggravating factor that the "defendant committed the offense in an especially heinous, cruel or depraved manner." CGS § 53a-46a(h). Certainly, evidence from the petitioner by way of Dr. Selig to the effect that he returned to the murder scene and found himself becoming sexually stimulated at the sight of his victim's mortal remains would give the state an enormous opening to argue the depravity of this situation. So, while Dr. Selig may well have had testimony that could lead a three-judge panel to conclude that the petitioner's "mental capacity was significantly impaired, but not so impaired as to constitute a defense to prosecution," CGS § 53a-46a(g)(2), it also posed a significant threat to prove the aggravating factor sought by the state.
It is of note that when Attorney Smyth was discussing the final draft of Dr. Selig's written report, he requested the Doctor to leave out the graphic details of what took place at the crime scene. Consequently, Dr. Selig's written report while lengthy (17 single-spaced typewritten pages) and detailed does not contain any detail as to the actions that were taken at the bottom of the dam.
At trial of the habeas case, the petitioner introduced the expert testimony of two eminent trial attorneys here in Connecticut, Attorneys Hubert Santos and William Bloss. Both of these gentlemen are well respected and are usually on the short list of people mentioned when speaking of good lawyers. Both of these attorneys opined that it was deficient performance on the part of Attorney Smyth not to call Dr. Selig to the stand in the punishment phase of the petitioner's trial. Of course, the expert witnesses have the luxury of knowing the outcome of the original trial. Having been sentenced to death, it is clear that had Attorney Smyth called Dr. Selig he could not have made the outcome any worse for the petitioner. However, at the time he had to make the decision to call or not call Dr. Selig, Attorney Smyth had no way of knowing whether the three-judge panel would find an aggravating factor, although it was a real possibility that they would do so. Clearly, had Dr. Selig testified and the details of the murder come out, the likelihood of an aggravating factor being found would increase. Of course, the answer of the expert witnesses to this is that there was going to be an aggravating factor found anyway. Indeed, Attorney Smyth was well aware of what to him was this possibility and to the expert witnesses is a certainty. Consequently, Mr. Smyth recognized the need to call Dr. Selig early on and took positive steps to ensure that if he did so, it would inure to the petitioner's benefit.
In closing argument, counsel for the respondent made the observation that "is it not obvious that if Attorney Smyth had done the very things the defense counsel (sic) claims he was ineffective for not doing, such as calling Dr. Selig and letting all this information come out, this horrible information that could be used not only to establish an aggravating factor, but also to undermine any mitigating factor . . . is there any doubt that we would be in this courtroom litigating a petition for ineffective assistance of counsel but that the claim would be that Gerry Smyth was ineffective for opening the door to having all this damaging evidence come in?"
It is not necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
Regardless of whether the decision to forgo calling Dr. Selig was deficient performance or not it is clear that the petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of his trial defense counsel. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still show "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." Stickland, infra at 694. "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. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). 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." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
This Court is convinced that had Dr. Selig been called to testify at the punishment phase of the trial, his testimony would have been insufficient to allow petitioner to escape the death penalty. Indeed, it is possible that testimony by Dr. Selig may well have cemented in the three-judge panel's finding that death was the appropriate punishment for want of any better word, this court has approached the testimony of Dr. Selig's being in the nature of a claim of "actual mitigation." It is, of course, well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege a claim that the petitioner's state or federal constitutional rights have been violated See Summerville v. Warden, 229 Conn. 397 (1994), and Clarke v. Commissioner, 43 Conn.App. 374 (1996). However, in order to prevail in such a claim, a petitioner must overcome two very large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner, 242 Conn. 745, 791-92 (1997). Unlike the original criminal trial in which the petitioner (then the defendant) enjoyed the presumption of innocence with the burden of proving his guilt beyond all reasonable doubt resting upon the prosecutor, in the habeas proceeding, the burden of proof rests upon the petitioner. This is so because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, supra. Furthermore, there is a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
The burden of proof in a habeas proceeding in which the claim is actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." Miller v. Commissioner, supra at 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." State v. Bonello, 210 Conn. 51 at 66, cert. den. 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989). By analogy, these same principles could be applied to a claim of "actual mitigation."
Even assuming that there is such a claim that can be raised here in Connecticut, there is a threshold question regarding the issue of whether the question of actual mitigation should even be considered by this Court. Once again, by analogy, "[t]he respondent asserts that a claim of actual innocence, when raised in a habeas corpus proceeding, must be based on newly discovered evidence. To be considered `newly discovered,' `the evidence must be such that it is not cumulative, was not available to the petitioner at his criminal trial and could not have been discovered prior to the criminal trial through the exercise of due diligence.' In Clarke v. Commissioner of Correction, 249 Conn. 350, 375-78 (1999), our Supreme Court has left the absolute requirement of `newly discovered evidence' an open question in our habeas jurisprudence `until the actual outcome of the case is likely to depend on the answer to the legal question.' Id. at 351." LaPointe v. Warden, No. CV 97-0571161 (Sep. 6, 2000), Freed J. Although having been presented with several opportunities to do so, our Supreme Court has declined to make the definitive statement. Consequently, while the final rule in this state may be to the contrary, as it stands at this time, the operative appellate decision on this issue is Clarke v. Commissioner, 43 Conn.App. 374 (1996).
Most notably, in Clarke v. Commissioner, 249 Conn. 350 (1999) the Supreme Court specifically directed that this exact issue be briefed. Notwithstanding, upon decision, the Court declined to reach this issue because Petitioner Clarke did not present a case in which he had established actual innocence.
In Clarke, the Appellate Court "concluded that although no governing standard of proof exists under which a claim of actual innocence should be evaluated, such a claim must, nonetheless, be based on newly discovered evidence. Williams v. Commissioner of Correction, supra, 41 Conn.App. 527. [The Appellate Court] concluded that `a writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered.' (Emphasis added.) Id., 530. Moreover, `[it] incorporate[d] the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner's claim of actual innocence.' Id., 528. Thus, [it] held that `a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence.'" Clarke, supra at 379.
Subsequent to the Appellate Court's decision in Clarke, the Supreme Court decided Miller v. Commissioner of Corrections, 242 Conn. 745 (1997) in which the standard of proof was discussed. This will be reached later in this decision.
The petitioner has not submitted anything evenly remotely resembling "newly discovered evidence." All of the matters to which Dr. Selig testified in the habeas court were well known to the defense team at the time of the original trial. Of course, Attorney Smyth elected not to use this evidence at the original trial and it is this decision by counsel that forms the core of the claim of ineffective assistance of counsel. Consequently, on that basis alone, this court would be justified in rejecting the claim of "actual mitigation," if indeed such a claim can be said to exist. The "clear and convincing" standard that this Court must apply "should operate as a weighty caution upon the minds of all judges and it forbids relief whenever the evidence is loose, equivocal or contradictory." Lopinto v. Haines, 185 Conn. 527 at 539 (1981). Here, there is an insufficient basis upon which to conclude that the petitioner would have successfully proved a mitigating factor. In light of all of this, this court concludes that the petitioner has failed to meet his burden of proving "actual mitigation" with clear and convincing evidence.
Notwithstanding, this presentation of testimony from Dr. Selig and cross-examination did serve a valuable purpose. The petitioner was essentially allowed to go ahead and present the testimony of Dr. Selig to the habeas court as it would have been presented to the three-judge panel. The respondent was permitted to conduct a cross-examination of Dr. Selig much as the prosecutor might have done at the original trial. This process permitted the habeas court to consider the testimony of Dr. Selig and consider his credibility much as the three-judge panel might have heard it. On the whole, this habeas court concludes that Dr. Selig would not have been a very effective witness if testimony similar to his testimony in the habeas court had been presented to the three-judge panel.
It is clear from Dr. Selig's testimony at the habeas trial that he viewed himself as the only person to ever understand the petitioner. Indeed, the testimony of Dr. Selig goes to great and, at times, incredible, lengths to avoid placing any of the blame upon the petitioner for what took place in December 1989. The testimony of Dr. Selig to the effect that it was somehow the victim's fault that she had caused the petitioner to lose control when she kicked him (an event that is supported only by the statements of the petitioner and thus subject to some question) did not do much to enhance the objectivity of this psychiatric testimony. Further, the habeas testimony of Dr. Selig, a psychiatrist, disdainfully dismissing the value of opinions of psychologists ("My view of psychological testing is that if it doesn't agree with my clinical impressions, I discount it. That's always been my approach to psychological testing, whether it be forensic or clinical work . . . But psychological testing, I've generally have only found helpful to the extent it confirms what I already think." Record of Trial, December 9, 2003, pp 21-22) allows him to be portrayed as one who makes up his mind and then does not want to be distracted by other matters that might undermine his opinion. This would have a clear deleterious effect upon his objectivity as well.
First and foremost, there is a significant fatal flaw with the testimony and opinion of Dr. Selig. It is based, in large part, if not entirely, upon the assumption that the petitioner was truthful with Dr. Selig in the interviews. The evidence available to the habeas court simply cannot, however, support this assumption. Indeed, the evidence at the habeas trial makes it significantly more likely than not that the petitioner was being something less than truthful when ha related the version of events surrounding Ms. Ashe's murder to Dr. Selig. First, the petitioner had already been deceptive with his trial defense counsel by telling them a story that he was high on crack cocaine at the time of the crime. He had also been deceptive with Dr. Phillips on multiple occasions. The petitioner initially lied about the physical abuse he may or may not have sustained as a child. The petitioner made an abortive and ultimately ineffective attempt to have his friends cover for him. Most importantly, however, the petitioner told a story to Dr. Selig about what took place at the foot of the dam the day after the abduction that, in light of the available forensic evidence in this case, simply cannot be true.
Dr. Selig himself recognized the criticality of this when he testified before the habeas court "[Developing rapport with the client] takes time. And it's very critical because I want the truth. It's critical that I get the truth. If I — if the defendant doesn't tell me the truth, I can't help them. Or, you know, at least a reasonable proximity to the truth. You know, pretty darn close to the truth." (Emphasis added). Record of Trial, December 9, 2003, p. 27, lines 16-20.
His repeated attempts to skew the results of the MMPI seriously undermined the efficacy of Dr. Phillips as a witness.
There was some testimony at the habeas trial that could be interpreted as evidence that the petitioner's mother and father may have been participants (presumably unwitting) in a cover up involving a pair of boots that they retrieved from the apartment that the petitioner shared with George Fontel. If so, this is another indicator of the petitioner's attempts at mendacity at the time of his original trial.
At this point, many years after the crime, we will probably never be certain as to exactly what took place. The petitioner now testifies to having suppressed all memory of what took place. At the time he spoke to Dr. Selig in 1990, he professed to remember the events, however it is possible that his "memory" of what he did may well be what he would have liked to have done.
Petitioner's Actions at the Bottom of the Dam as per Dr. Selig's Notes
On the night of the abduction, the petitioner reports that he eventually made his way back to the crime scene, stopping along interstate 84 at a spot where, after a short walk, he could see the victim lying at the bottom of the dam. At this time, the petitioner shined a flashlight upon her and saw that she was still moving and was, therefore, still alive. At first he felt sorry for her and then his rage returned and he once again began to taunt her. He left the scene while Ms. Ashe was still alive and made no efforts to summon help for her or to rescue her himself. Indeed, the petitioner went to get something to eat and then returned home to sleep.
The next day, December 19, 1989, the petitioner returned to the scene and reports finding that the victim was no longer lying at the foot of the dam. At first, he thought she may have been rescued, however, almost immediately, he saw her lying about twenty or thirty feet away in the snow, out of the stream and partially up the bank. When he went down to where she was lying, he discovered that she was dead. The petitioner reports to Dr. Selig that his first reaction is one of pity towards the victim; he believed her to be "more at peace now." He then propped her up against a rock and inexplicably unbuttoned her pants but did not pull down the zipper. The petitioner told Dr. Selig that he sat there staring into her eyes for some period of time, feeling sorry for the now deceased young woman. He ultimately reported feeling sexually aroused. When the petitioner left the scene, he left Ms. Ashe's body propped up against a rock and completely out of the water. Her clothing was not disarrayed, except for the top button of her pants that he said he had unbuttoned.
This stands in stark contrast to the coroner's report that found the zipper pulled down. When asked why the petitioner would have unbuttoned the victim's pants. Dr. Selig answered that he "did not say why. He did say he did not unzip them. I had specifically asked him that because the coroner had indicated that they had been — when she was found over a week later, the — her pants were unzipped. [The petitioner] said he didn't touch in her any way (sic) sexually at that time, but he did feel aroused, and he propped her up against a rock and then he left." Record of Trial, December 10, 2003, pp 42-43.
This statement is also an indicator that the petitioner was not honest with Dr. Selig when he told him what happened at the foot of the dam. In order to stare into the eyes of the victim, it is necessary that her eyes be open. The petitioner made no mention of having closed her eyes before he left her propped up against a tree. When the victim's body was found on December 25, 1989, her eyes were closed. This is another unexplained discrepancy between the actual forensic evidence at the crime scene and the version of events according to the petitioner.
The victim's body and car were not discovered until December 25, 1989. When discovered, her body was lying face down partially submerged in the stream, her hands were spread apart, and her feet also spread apart, were protruding from the ice onto the shoreline. Her head and most of her body were encased in ice beyond the waterline. There was evidence indicating, moreover, that before her death her hands and ankles had been bound with tape. Her right foot was unshod, and her right sneaker was missing. Her pants were unbuttoned and totally unzipped, and her underwear was exposed. Beneath the layers of tape around her mouth and nose there was a glove stuffed into her mouth. There were numerous pre-mortem abrasions and contusions on her face, wrists and arms. There were no injuries of significance to the back of her body. There was a hemorrhage of the soft tissue between the vagina and the rectum, consistent with penetration of the rectum. The petitioner's sperm was in her vagina.
At closing argument in the sentencing phase, the prosecutor being unaware of the petitioner's version of events of that took place at the bottom of the dam the day after the abduction suggested that the three-judge panel draw the following inference from the available forensic evidence. In order to make sure that the victim was dead, the petitioner was watching her from the top of the dam. Realizing that she had survived the fall and was crawling toward the shore, the petitioner made his way down to the victim and forced her, face down, back into the shallow water at the base of the dam, strangling or drowning her, or both. The petitioner then returned to the victim's car, where he opened the trunk with her car keys, and took out a Jean Country store bag containing a new pair of blue jeans and a Lerner's bag. He next threw the car keys into the trunk, closed it, took both bags with him, and walked back to his car, which was in the Bradlees' parking lot. The petitioner then drove onto Interstate 84, back to the area adjoining the dam and the pond. There he parked on the shoulder of the highway, and climbed over a guardrail and through a hole in a fence to a point where he was able to look down and see the victim's lifeless body. He then drove home.
There are thus two potential scenarios established for what might have taken place at the bottom of the dam. The first scenario, obviously relied upon by Dr. Selig as the truth, is the story told by the petitioner, the only living person who could testify to what actually took place. The second scenario, postulated by the prosecutor at closing argument in the sentencing phase, is based exclusively upon the physical evidence located at the crime scene. What is clear to this court is that this physical evidence as well as the forensic interpretation surrounding this murder does not support the petitioner's version. In order to believe the petitioner's version as related to Dr. Selig, one must conclude that the now lifeless victim somehow managed to unzip her pants, crawl down to the waterline, partially submerge herself and then remain still until she was encased in ice. Considering how the victim was found, the prosecutor's version of what happened is far more logical and credible. The only logical conclusion that can, therefore, be drawn in regard to the version of events related by the petitioner to Dr. Selig is that it is untruthful.
This is important, if not critical, to the determination of the habeas case because Dr. Selig himself testified that if the prosecution theory was correct, then there was no mitigation. There is every reason to believe that Dr. Selig would have been subjected to similar, if not more scathing, cross examination at the original trial. Given his testimony at the habeas trial, it is clear to this court that his efficacy as a witness to establish a statutory mitigating factor would have thereby been totally destroyed. The testimony of Dr. Selig at the habeas trial convinces this habeas court that even had Attorney Smyth called Dr. Selig as a witness during the punishment phase that the outcome would not have been any different. Consequently, even if the decision by Attorney Smyth not to do so was deficient performance, the prejudice prong required by Strickland has not been established.
The following excerpt from the habeas trial is enlightening:
The Court The state's hypothesis is that she was alive when he returned, and that he, in some manner, did something to cause her death at that point I want you to assume that the state's hypothesis is correct, in other words, that he didn't tell you the truth when he talked to you.
What, if anything, would that have done to your opinion?
Dr. Selig: It may have changed it.
The Court: In what way?
Dr. Selig: That I may have the opinion that there was no mitigation. It depends. There might still be — there might still be mitigation based on his background and things like that, non-statutory mitigation.
But in terms of the statutory mitigation about reduced — reduced control, assuming that your hypothesis is implying that he was relatively cool, calm and collected at the time he killed her, then I don't think that I could support statutory mitigation, under that hypothesis.
As to whether non-statutory mitigation would occur, I would still testify to the things I've testified to, regarding his background, alienation, depression, and so forth, but I could not render an opinion that he was in an emotional state that compromised his ability to control himself at the time that he killed her, assuming your hypothetical.
Transcript of habeas proceedings, December 18, 2003, pp 120-21.
Petitioner has raised an argument that Attorney Smyth improperly influenced his jury waiver decision. Although the decision to waive the jury at sentencing was based upon sound advice at the time it was given, the petitioner essentially argues that the failure to call Dr. Selig, the major driving factor behind that decision, somehow vitiates what was a knowing, intelligent and voluntary waiver of his right to trial by jury. In support, the petitioner cites Hall v. Washington, 106 F.3d 742 (7th Circ. 1997). That court held that where a capital defendant waives the right to a jury trial based upon improper advice of counsel, that is sufficient to show prejudice. Of course, the key to this is the improper advice by counsel. As noted in the findings of fact, this court concludes that it was sound advice for Attorney Smyth to advise the petitioner to waive the jury given the explosive and inflammatory nature of the Selig testimony. Although subsequent events led to a decision not to call Dr. Selig, this does not render the original advice unsound or improper. Consequently, no relief is available on this point.
It is clear in Connecticut jurisprudence that there is neither a federal nor state constitutional right for a defendant to have the final say as to which, if any witnesses, are called to testify. See State v. Davis, 199 Conn. 88 (1986).
There is one issue that was not raised either by way of a stated claim in the amended petition or a special defense in the respondent's return. Notwithstanding, it did arise during the course of the habeas corpus trial. This issue involves the question of whether Attorney Smyth acted in one or more unethical ways. Both parties explored this issue with Attorney Smyth and the expert witness Attorney Bloss. While the proverbial "door" to this issue was cracked open by the petitioner during questioning of Attorneys Smyth and Bloss, it was the respondent who enthusiastically flung the door wide open during his cross-examination of both of these witnesses.
As this court indicated several times during the habeas corpus trial, and as the parties are well aware, the instant proceeding is not the appropriate forum in which to pursue a potential ethical grievance against an attorney. A complaint charging an attorney with unethical behavior is properly pursued, not via a petition for a writ of habeas corpus, but by way of a complaint filed with the Statewide Bar Counsel for the Statewide Grievance Committee. Consequently, this court will not adjudicate the question of whether any alleged unethical behavior in fact occurred in this case. However, since the issue of improper attorney conduct can, nevertheless, in the overall context of an ineffective assistance of counsel claim, have some relevance to a resolution of the habeas petition, the court must, by necessity, briefly address the issue of alleged unethical behavior by Attorney Smyth.
See § 2-32 of the Connecticut Practice Book.
Attorney Smyth testified on direct examination about his efforts to tailor Dr. Selig's report to best serve the interests of his client, the petitioner. The ultimate goal was to keep the "lurid details" out of Dr. Selig's report in order to weaken the likelihood of an aggravating factor being proven by the prosecution. In order to accomplish this, Attorney Smyth suggested to Dr. Selig that he edit out the information provided by the petitioner to the Doctor during their sessions that had been incorporated into his draft report. Additionally, there was testimony presented that Attorney Smyth specifically instructed Dr. Phillips to not bring her file, which contained references to the invalid MMPI tests, to court when she testified. Testimony also was presented that suggested that Attorney Smyth knowingly let Dr. Phillips test contrary to what Attorney Smyth knew to be correct. Lastly, some evidence was admitted that tended to show that Attorney Smyth and/or Investigator Ellen Knight were aware of the petitioner's proactive efforts to prevent the detection and confiscation of his boots, which apparently might have been used as evidence to show his physical presence at or near the dam.
During the course of this trial, the evidence of the petitioner's heretofore unknown conduct and thoughts at the foot of the dam came to be short handedly known as "the lurid details." It is clear that while the prosecution had substantial forensic evidence available to it by which an inference could be drawn as to what might have taken place at the bottom of the dam, it clearly lacked the detail that only the petitioner could provide about his thoughts and actions.
The respondent suggested in the tone of his questions directed to Attorney Smyth that the defense team had become aware of a letter that the petitioner had written to his roommate, George Fonte, thanking him for assisting his parents to recover the boots from his apartment. Investigator Knight retained the original of this letter and its existence was not disclosed to the prosecutor.
The petitioner strove to utilize this testimony to show that Attorney Smyth's performance deviated from ethical norms, and in the process, thereby harming the petitioner's underlying case. The respondent's approach can best be described as eagerly acceding to the occurrence of these alleged ethical lapses. This approach allowed the respondent to argue that Attorney Smyth's representation was both vigorous (i.e., counsel was so vigorous in his representation that he was willing to cross ethical boundaries) and that any improprieties inured to the petitioner's benefit. The question then arises, in the context of an ineffective assistance of counsel claim, as to whether an attorneys unethical behavior creates a conflict of interest that can constitute ineffective assistance of counsel.
The duty of loyalty is "perhaps the most basic of counsel's duties." Phillips v. Warden, 220 Conn. 112, 133, 595 A.2d 1356 (1991). Duty of loyalty has been defined as a "person's duty not to engage in self-dealing or otherwise use his or her position to further personal interests rather than those of the beneficiary." Black's Law Dictionary (7th Ed. 1999), at 523. "In a case of a claimed conflict of interest . . . in order to establish a violation of the sixth amendment the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance." (Internal quotation marks omitted.) Phillips v. Warden, supra, 220 Conn. 133. The "fundamental principle underlying the right to conflict-free representation . . . is that an attorney owes an overarching duty of undivided loyalty to his client. At the core of the sixth amendment guarantee of effective assistance of counsel is loyalty, perhaps the most basic of counsel's duties." (Internal quotation marks omitted.) Id., at 136, quoting Strickland v. Washington, supra, 466 U.S. 692.
The petitioner has not alleged that his attorney violated his duty of loyalty nor was somehow burdened by a conflict of interest. Furthermore, there is no evidence that Attorney Smyth's duty of loyalty to his client was in any way adversely affected by active representation of conflicting interests. Neither is there any evidence that a conflict of interest detrimentally affected Attorney Smyth's performance, or that the petitioner suffered any prejudice therefrom. Indeed, the actions of Attorney Smyth clearly inured to the benefit of the petitioner. As a result of these actions, the prosecution was unaware that the petitioner had returned to the victim's body, partially disrobed her and became sexually aroused. Further, there is no evidence that the prosecution ever located a pair of boots that could be traced to the petitioner and further inculpate him in this crime. To the extent that the actions of Attorney Smyth may have crossed an ethical line and could be characterized as deficient performance, thereby meeting the first prong of the Strickland test, it is clear that this deficient performance did not operate to prejudice the petitioner, Strickland's second prong. Consequently, there is no evidence in support of a claim of ineffective assistance of counsel premised on Attorney Smyth's alleged "ethical lapses."
For the purpose of analysis, this Court has assumed, without actually deciding, that this conduct equals unethical behavior. Arguably, the alleged conduct by Mr. Smyth might have been a violation of Rule 3.4(1) or (2) of the Rules of Professional Conduct. However, there is no evidence that Attorney Smyth affirmatively instructed any witness to testify falsely, to withhold material evidence from the prosecution, or actively concealed any such evidence himself. All of the matters at issue could have been discovered by the prosecution through the exercise of due diligence.
II. Ineffective Assistance of Appellate Counsel
The petitioner additionally alleges that he was denied the effective assistance of appellate counsel. More specifically, the petitioner alleges "that his appellate counsel failed to present proper available arguments on appeal and/or presented arguments in an improper and/or incomplete manner that precluded proper consideration thereof." Second Amended Pet., at 5.
Petitioner's pre-trial brief elaborates on these alleged failures by appellate counsel a follows: (1) a failure to properly raise a claim as to the three-judge panel's improper reliance in heinousness as an independent aggravating factor; (2) a failure to properly challenge the three-judge panel's exceeding its statutory authority to determine the question of guilt and sentencing; (3) a failure to properly obtain review of the panel's refusal to articulate its findings of fact; and, (4) a failure to challenge the petitioner's waiver of the right to a jury at the penalty phase. The first of these claims is the so-called Clemons issue that is thoroughly briefed in petitioner's post-trial briefs and addressed at greater length in this memorandum of decision. The remaining claims are not addressed at all in the petitioner's post-trial briefs.
Instead, the post-trial brief indicates the "petitioner also presented evidence that Mr. Drager failed to provide the Supreme Court with an adequate factual record for several of Mr. Cobb's appellate claims, as necessary for proper presentation of the issues. Thus the Court simply rejected as factually unsupported, the claim that the sentencing panel had impermissibly rejected Mr. Cobb's confession as a mitigating factor because of his motion to suppress. The Court also did not grant plenary review to the claim that petitioner had been prejudiced by the State's change in theory of the cause of death between the guilt/innocence and penalty phases of the trial" Petitioner's Post-Trial Brief at 34.
Without lending an imprimatur to a change of claims via briefs, this court will succinctly address these claims. As to all claims involving appellate counsel, with the exception of the Clemons issue (i.e. claims 2-4, but not claim 1) the court finds that there was no evidence presented at the habeas trial to support those contentions. Thus they are deemed abandoned. As to the claim identified in the post-trial brief as a failure to provide an adequate factual record, our Supreme Court addressed the motion to suppress. State v. Cobb, 251 Conn. 285, at 466-68. The petitioner has failed to show what, if anything, could have supplemented the record that was reviewed by the Supreme Court. The Supreme Court also extensively addressed the claim that the state impermissibly changed its theory of aggravation. Id. At 397-419. This court finds these habeas claims are without merit and unsupported.
Notwithstanding, there is a properly presented claim that "contends that [the petitioner] received ineffective assistance of counsel on appeal as a result of the failure of his appellate counsel, [Attorney Kent Drager,] to raise a federal constitutional challenge, under Clemons v. Mississippi, 494 U.S. 738 (1990), to the validity of his death sentence based on the sentencing panel's finding and reliance on an erroneous and invalid aggravating factor ('especially heinous')." Pet'r Post-Trial Br., at 31.
"The constitutional right of a criminal defendant to effective assistance of counsel also includes the right to such assistance on the defendant's first appeal as of right. We have adopted the two-part Strickland analysis in the context of a claim of ineffective assistance of appellate counsel. Thus, since 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, that `proceeding' must be regarded as the entire continuum of the adjudicatory process, both trial and appeal. The test is not whether the issue, had it been raised on direct appeal, might have entitled the defendant to relief but whether the failure to raise the issue resulted in a miscarriage of justice." (Internal citations and quotation marks omitted.) Holloway v. Commissioner of Correction, 72 Conn.App. 244, 249-50, 804 A.2d 995, cert. denied, 261 Conn. 944, 808 A.2d 1136 (2002).
Strickland v. Washington, 466 U.S. 668, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984).
Initially, it must be noted that one of the claims the petitioner raised on direct appeal was "that § 53a-46a, the statute governing sentencing in capital felony cases, is unconstitutionally vague. Specifically, the [petitioner] maintain[ed] that the provision in subsection (d) of § 53a-46a directing the capital sentencing authority to consider `all the facts and circumstances of the case' in determining the existence of mitigation authorizes the capital sentencing authority to reject evidence regarding mitigation on irrelevant and improper grounds." State v. Cobb, 251 Conn. 285, 482-83, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000) ( Cobb II).
"In Buchanan v. Angelone, 522 U.S. 269, 275-77, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), the United States Supreme Court stated: Our cases have distinguished between two different aspects of the capital sentencing process, the eligibility phase and the selection phase. In the eligibility phase, the sentencing authority narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. In the selection phase, the sentencing authority determines whether to impose a death sentence on an eligible defendant. It is in regard to the eligibility phase that we have stressed the need for channeling and limiting the sentencing authority's discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition. In contrast in the selection phase, we have emphasized the need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination.
"In the selection phase, our cases have established that the sentencing authority may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. However, the state may shape and structure the capital sentencing authority's consideration of mitigation so long as it does not preclude the sentencing authority from giving effect to any relevant mitigating evidence. Our consistent concern has been that restrictions on the sentencing determination not preclude the sentencing authority from being able to give effect to mitigating evidence. Our decisions suggest that at the selection phase, complete discretion is constitutionally permissible." (Emphasis in original.) (Internal citations and quotation marks omitted.) State v. Cobb, supra, 251 Conn. 483-84.
The Connecticut Supreme Court went on to note in Cobb II that " although § 53a-46a is not a balancing statute, the federal constitution permits a state to adopt a death penalty scheme that requires the capital sentencing authority to balance aggravating factors against mitigating factors at the sentencing hearing. Obviously, in order to balance aggravating factors against mitigating factors, a capital sentencing authority first must be permitted to consider evidence regarding aggravation. Thus, the federal constitution necessarily permits a capital sentencing authority to consider evidence relating to aggravation at the selection phase of a sentencing hearing. Consequently, the defendant's argument that § 53a-46a(d) violates the constitution by permitting a capital sentencing authority to consider evidence regarding the circumstances of the crime and aggravation is without merit." (Emphasis added.) (Internal citations omitted.) Id., at 485-86.
Death penalty statutes have been identified as being either "weighing" or "non-weighing." In weighing states such as Mississippi at the time of Clemons, "the finding of aggravating factors is part of the jury's sentencing determination, and the jury is required to weigh any mitigating factors against the aggravating circumstances." Clemons v. Mississippi, supra, 494 U.S. 745. In states that have adopted non-weighing death penalty statutes, "aggravating circumstances serve only to make a defendant eligible for the death penalty and not to determine the punishment, [and] the invalidation of one aggravating circumstance does not necessarily require an appellate court to vacate a death sentence and remand to a jury." Id., discussing Zant v. Stephens, 462 U.S. 862, 103 S.Ct 2733, 77 L.Ed.2d 235 (1983).
The petitioner correctly indicates that "[i]n Clemons the [United States] Supreme Court held that under death penalty schemes where aggravating factors play a `weighing' role in the determination of punishment, it is constitutional error under the Eighth and Fourteenth Amendments for the sentencing authority to give weight to an unconstitutionally vague aggravating factor even if other valid aggravating factors exist. Clemons, 494 U.S. at 748-52; accord, Stringer v. Black, 503 US. 222 (1992); Richmond v. Lewis, 506 U.S. 40 (1992)." Pet'r Post-Trial Br., at 31.
In Clemons, "[t]he Mississippi Supreme Court upheld the death sentence imposed on Chandler Clemons even though the jury instruction regarding one of the aggravating factors pressed by the State, that the murder was `especially heinous, atrocious, or cruel,' was constitutionally invalid in light of [the United States Supreme Court's] decision in Maynard v. Cartwright, 486 U.S. 356 (1988). Although . . . the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless error review, [the United States Supreme Court] vacate[d] and remand[ed], because it [was] unclear whether the Mississippi Supreme Court correctly employed either of these methods." Clemons v. Mississippi, supra, 494 U.S. 741.
The central finding in Clemons was that "the opinion below [was] unclear with respect to whether the Mississippi Supreme Court did perform a weighing function, either by disregarding entirely the `especially heinous' factor and weighing only the remaining aggravating circumstance against the mitigating evidence, or by including in the balance the `especially heinous' factor as narrowed by its prior decisions and embraced in [ Clemons]." Id., at 751.
Additionally, the United States Supreme Court noted that "the court's statement, [that a remaining valid aggravating circumstance will nonetheless support the death penalty verdict after one aggravating circumstance is found to be invalid or unsupported by evidence,] can be read as a rule authorizing or requiring affirmance of a death sentence so long as there remains at least one valid aggravating circumstance. If that is what the Mississippi Supreme Court meant, then it was not conducting appellate reweighing as [the U.S. Supreme Court] understand[s] the concept. An automatic rule of affirmance in a weighing State would be invalid under Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982), for it would not give defendants the individualized treatment that would result from actual reweighing of the mix of mitigating factors and aggravating circumstances. Additionally, because the Mississippi Supreme Court's opinion is virtually silent with respect to the particulars of the allegedly mitigating evidence presented by Clemons to the jury, we cannot be sure that the court fully heeded . . . cases emphasizing the importance of the sentencing authority's consideration of a defendant's mitigating evidence." (Internal citation omitted.) Clemons v. Mississippi, supra, 494 U.S. 751-52.
The import of the difference between weighing and non-weighing states is no more evident than when an invalid aggravating circumstance was utilized in arriving at a death sentence. In a weighing state, the mix of mitigating factors and aggravating circumstances is altered by the "removal" of an invalid aggravating circumstance. As the United States Supreme Court stated in Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct 1130, 117 L.Ed.2d 367 (1992), "when the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale. When the weighing process itself has been skewed, only constitutional harmless error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence."
In a non-weighing state, contrary to a weighing state, there is no "thumb" that is removed via the invalidation of an aggravating circumstance. A removal of — an invalid aggravating circumstance, so long as there is at least one other aggravating circumstance, would leave in place the death penalty. "With respect to the function of a state reviewing court in determining whether or not the sentence can be upheld despite the use of an improper aggravating factor, the difference between a weighing State and a non-weighing State is not one of semantics . . ., but of critical importance. In a non-weighing State, so long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty." Id., at 231-32.
It is important to note that this is the eligibility phase, as distinguished from the selection phase. Potential ramifications, if there are any, would impact the eligibility phase, not the selection phase.
"[I]n Georgia, [a non-weighing state,] the jury must find the existence of one aggravating factor before imposing the death penalty, but aggravating factors as such have no specific function in the jury's decision whether a defendant who has been found to be eligible for the death penalty should receive it under all the circumstances of the case. Instead, under the Georgia scheme, in making the decision as to the penalty, the fact finder takes into consideration all circumstances before it from both the guilt-innocence and sentence phases of the trial. These circumstances relate both to the offense and the defendant." (Internal quotation marks omitted.) Stringer v. Black, supra, 503 U.S. 229-30.
"In Georgia, unlike some other States, the jury is not instructed to give any special weight to any aggravating circumstance, to consider multiple aggravating circumstances any more significant than a single such circumstance, or to balance aggravating against mitigating circumstances pursuant to any special standard. Thus, in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty." Zant v. Stephens, supra, 462 U.S. 873-74.
In State v. Ross, 230 Conn. 183, 238 n. 22, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995) ( Ross II), the Connecticut Supreme Court identified, after comparison to Georgia's statute at issue in Zant, the death penalty sentencing system in effect in Connecticut at the time of the instant petitioner's underlying criminal matter as "non-weighing." "The finding of an aggravating factor only plays a role in narrowing the class of persons who are eligible for the death penalty and does not guide the capital sentencing authority in exercising its discretion as to whether death is the appropriate punishment in any specific case." (Emphasis added.) Id., citing Zant v. Stephens, supra, 462 U.S. 873-75.
The Ross II court noted the following in another footnote: "Structurally, our statute resembles the death penalty system that was enacted in Georgia and found constitutional in Zant v. Stephens, supra, 462 U.S. 870-72." State v. Ross, supra, 230 Conn. 234 n. 19.
The petitioner argues, however, that the Connecticut Supreme Court's "characterization" of this state's death penalty statute, at the time of Ross II and the instant matter, as "non-weighing" is flawed. The petitioner reasons as follows: "[T]hat characterization was based on the portion of the pre-1995 statute providing that a finding of a single mitigating factor precluded imposition of a death sentence without regard to the number and weight of the statutory aggravating factors found in Gen. Stats. § 53a-46a(g) (Rev. to 1989). That aspect of the statute was properly deemed `non-weighing' because once a mitigating factor was found to exist, no weighing was required.
"Under the pre-1995 statute, the underlying determination of whether a non-statutory mitigating factor existed did, however, require the sentencing authority to engage in a weighing process. Gen. Stats. § 53a-46a(d) provided that in order to determine whether the evidence presented was sufficient to establish a non-statutory mitigating factor, the sentencing authority was required to evaluate that evidence in light of `all of the facts and circumstances of the crime.' The `facts and circumstances' to be considered specifically included consideration of any aggravating factors found. As the parties discussed in colloquy with the court, the process required under § 53a-46a(d) has been described as `internal weighing.'
"In Richmond, the Supreme Court held that statutory language in Arizona that, like § 53a-46a(d), required the sentencing authority to determine if the evidence of mitigating circumstances was `sufficiently substantial to call for leniency' in light of the aggravating circumstances, created a `weighing' statutory scheme. In Richmond, the sentencing court had found two statutory aggravating factors, one of which (' especially heinous and cruel') was improperly found. Applying in its prior precedent in Richmond, the Court held the resulting death sentence invalid and sustained habeas corpus relief." (Emphasis in original.) (Internal citation omitted.) Pet'r Post-Trial Br., at 31-33.
In essence, the petitioner posits that while Connecticut's pre-1995 death penalty statute is a non-weighing statute, it nevertheless encompasses weighing because the process of determining whether a mitigant exists involves the consideration of both aggravants and mitigants. This argument at first glance appears to have merit, because aggravating and mitigating circumstances are being simultaneously considered. Upon closer analysis, however it is evident that this argument is without merit. See State v. Cobb, supra, 251 Conn. 485-86.
In Ross II, the Supreme Court reviewed the pre-1995 "death penalty statutory provisions as a whole. In General Statutes §§ 53a-46a through 53a-46c, the legislature has established a three-tiered pyramid, in which each tier narrows the class of defendants that may be found eligible for the death penalty. At the first tier above the base of the pyramid, our statute separates capital felony homicides from other homicides, and authorizes bifurcated death penalty hearings only for those who have been found guilty of or have pleaded guilty to a capital felony. General Statutes § 53a-46a(b). At the second tier, the statute further limits the death penalty by requiring the sentencing authority to find, beyond a reasonable doubt, the existence of at least one statutorily delineated aggravating factor. General Statutes § 53a-46a(b), (e), (f) and (h). At the third and final tier, our statute separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed by requiring a sentencing authority to find, by a preponderance of the evidence, whether a mitigating factor exists. General Statutes § 53a-46a(e). In making this determination, the capital sentencing authority must consider the existence of each of the mitigating factors listed in the statute at § 53a-46a(g) and of any other mitigating factor concerning the defendant's character, background and history, or the nature and circumstances of the crime. General Statutes § 53a-46a(b). If the sentencing authority fails to find the existence of a mitigating factor, after having found the existence of an aggravating factor, the court must sentence the defendant to death. General Statutes § 53a-46a(f). Otherwise, the court must impose a sentence of life imprisonment without the possibility of release." (Emphasis added; internal citations omitted.) State v. Ross, supra, 230 Conn. 236-38.
Particularly noteworthy is the fact that the 1995 amendments to the death penalty statute added a fourth tier to the pyramid. State v. Rizzo, 266 Conn. 171 at 230 (2003). "This change in our capital sentencing scheme has effectively expanded the selection phase to include, in addition to the determination of whether the defendant has established mitigation, the weighing of aggravation factors against the mitigation factors. It has also resulted in a significant gap in the sentencing scheme — namely, unlike our former nonweighing statute, the current sentencing statute does not require the jury to make its ultimate determination — that the aggravating factors outweigh the mitigating factors, and that, therefore, death is the appropriate sentence — by a level of certitude beyond a reasonable doubt." (Emphasis added.)
The petitioner's claim that Connecticut's pre-1995 non-weighing statute nevertheless involves weighing focuses on what the Ross II court called the third and final tier. Specifically, the claim goes to the portion of the third-tier process (i.e., selection phase) in which a determination is made as to whether the death penalty shall be imposed, based on a consideration of all statutory and non-statutory mitigating factors. General Statutes (Rev. to 1989) § 53a-46a(b), (g) and (h). It is the unrestricted, holistic process of determining whether there is any potential mitigating non-statutory factor that is the focus of the petitioner's argument that there is "internal weighing."
"In the parlance of federal death penalty jurisprudence, the second tier was known as the `eligibility phase.' and the third tier was known as the `selection phase.'" State v. Rizzo, supra, 266 Conn. 230.
As identified by the Ross II court, the third tier separates those cases in which the death penalty shall be imposed from all cases in which a penalty of death may be imposed. This reduction is accomplished by having the sentencing authority find, by a preponderance of the evidence, whether a mitigating factor exists. While the sentencing authority must consider the existence of all statutory and non-statutory mitigants in making this determination, and this consideration ultimately may incorporate what also provides the basis for the aggravating factors by way of considering the "nature and circumstances of the crime," such consideration is not akin to the discretion in weighing. The consideration goes not to whether the aggravants outweigh the mitigants, or vice versa, but to whether a mitigant has been proven by a preponderance of the evidence.
The petitioner cites to Richmond for the proposition that Connecticut's death penalty statute is, similar to Arizona's, a weighing statute. A careful review of Richmond, as well as the underlying decision in Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990), leads this court to conclude that the Arizona statute at issue in Richmond is distinguishable from Connecticut's death penalty statute. The Arizona statute at issue in Richmond "require[d] the sentencing authority to weigh aggravating and mitigating circumstances — to determine the relative substance of the two kinds of factors." (Emphasis added.) Richmond v. Lewis, supra, 506 U.S. 47. A death sentence arrived at after a weighing determination of the "relative substance" of both aggravating and mitigating factors is discernable from the non-weighing statutory scheme in Connecticut.
"The Arizona sentencing statute provides: In determining whether to impose sentence of death the court shall take into account the aggravating and mitigating circumstances included in . . . this section and shall impose a sentence of death if the court finds one of more of the aggravating circumstances . . . and that there are no mitigating circumstances sufficiently substantial to call for leniency." (Emphasis added.) Richmond v. Lewis, supra, 506 U.S. 47. The emphasized language clearly adds a weighing or balancing dimension absent from Connecticut's statute for purposes of the instant petition.
The Rizzo Court had the following to say regarding the weighing process: `The words `outweigh' and `are outweighed by' [in CGS §§ 53a-46a(f)] very strongly suggest a balancing scale being the greater, more weighty, more compelling, more important, or more significant, than the other side. All of the relevant dictionary meanings of the word `outweigh' that we have consulted disclose a meaning consistent with this suggestion . . . "In addition, the legislative history of PA 95-19 firmly buttresses this very strong linguistic indication. That history is replete with considered statements that the legislature intended the weighing process to incorporate a balance whereby the aggravant was merely more significant or weighty than the mitigants." State v. Rizzo, supra, 266 Conn. 202-03.
From the foregoing, in particular the discussions in Ross II of Connecticut's death penalty statute and the eligibility and selection phases in Cobb II, this court concludes that it is incorrect to refer to this process of consideration as "internal weighing." Such a label is a misnomer and should not be applied to the third-tier mitigant determination. The consideration during the selection phase of whether some mitigant has been proven, which permits the consideration of the nature and circumstances of the crime, is clearly distinguishable from the discretion-infused balancing in the eligibility phase of weighing statutes. The result of the foregoing analysis and this court's conclusions is that there was — and is — no legal basis for a Clemons-based challenge on petitioner's direct appeal. This result finds further support in Attorney Drager's testimony, which the court finds highly credible.
Attorney Drager testified that he attempted to raise a challenge based on the Clemons, Stringer and Richmond line of cases. Hab. Tr. (Jan. 14, 2004), at 117-18. Because the Connecticut Supreme Court previously had held in Ross II that Connecticut is not a weighing state, appellate counsel avoided directly raising a Clemons claim. Instead of a frontal assault based on Clemons, Mr. Drager used what is best described as a flanking maneuver. A critical aspect of this flanking maneuver was specifically and intentionally not raising a Clemons-based weighing claim.
Attorney Drager deliberately strove "to avoid using the word `weighing' because . . . the court already said it's not weighing, and [he] was trying to get [the Supreme Court] to see that even if you don't call it weighing, there's still some kind of an internal balancing, whatever word you want to use, that an invalid aggravant is still going to have some effect on the mitigating finding. That's what [he] was trying to persuade [the court] here without calling it weighing." Id., at 122.
Mr. Drager drew attention to issue 41 E. in petitioner's brief on direct appeal. In that issue, he contended that:
Defendant also questions the conclusion by the Ross Court that there is no internal weighing process in our statutory scheme. See Ross, 230 Conn. at 239. Other schemes that are just like Connecticut's have been determined as a matter of federal law to include internal weighing in the mitigation decision. See Richmond v. Lewis, 506 U.S. 40 (1992) (re: internal weighing in Arizona's scheme); Smith v. McCormick, 914 F.2d 1153, 1164 (9th Cir. 1990) (re: internal weighing in Montana's scheme); Espinosa v. Florida, 505 U.S. 1079 (1992) (re: indirect weighing in Florida); see also People v. Bean, 560 N.E.2d 258, 291-92 (Ill. 1990) (re: internal weighing in Illinois scheme). To the extent that such internal weighing actually exists, it is unconstitutional because it is standardless and unreviewable. Indeed, to the extent it actually exists, it is certainly clear that defendant in this case is entitled to a new penalty hearing because of the three-judge panel's erroneous and invalid finding of the separate "especially heinous" aggravating factor. The placement of such an erroneous and invalid aggravant on death's side of the scale clearly renders the resulting death sentences invalid. Stringer v. Black, 503 U.S. 222 (1992) (so holding). Resp't Ex. YYY, at 281.
Mr. Drager also testified that he attempted to utilize issues XXI and XXII to similarly raise an indirect Clemons claim.
Without specifically citing to Clemons, Attorney Drager astutely and purposefully attempted to avoid a weighing-based argument and sought to have the Supreme Court "consider the [harmful] effect of the erroneous aggravation finding on . . . the mitigation finding." Hab. Tr. (Jan. 15, 2004), at 15. His strategy was to somehow challenge the "internal weighing," without directly doing so. The tactics he had to employ in this challenge, however, could not involve a direct attack premised on weighing. The Connecticut Supreme Court's prior holding that the death penalty statute at issue was a non-weighing statute doomed such a direct frontal attack to failure. State v. Ross, supra, 230 Conn. 239; State v. Webb, 238 Conn. 389, 481-83, 680 A.2d 147 (1996) ( Webb II). The petitioner now attempts to attack this clever oblique approach as ineffective.
"To prevail on . . . [a] claim [of ineffective assistance of appellate counsel], the petitioner must establish (1) that his appellate counsel's performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law, and (2) that this lack of competency contributed so significantly to the affirmance of his conviction as to have deprived him of a fair appeal, thus causing an unreliable conviction to stand. See Valeriano v. Bronson, 209 Conn. 75, 84-86, 546 A.2d 1380 (1988); accord Strickland v. Washington, supra, 466 U.S. 687. If the issues not raised by his appellate counsel lack merit, the petitioner cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation
". . . Appellate advocates select what in their professional judgment, are the most promising issues for review. It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment. A reviewing court must be highly deferential to counsel's decision and judge the action from counsel's perspective at the time." Internal citations and quotation marks omitted.) Tillman v. Commissioner of Correction, 54 Conn.App. 749, 756-57, 738 A.2d 208, cert. denied, 251 Conn. 913 (1999).
In this case, Attorney Drager carefully considered how best to raise the "internal weighing" claim. The tactical decisions he made to effectuate this strategy demonstrate a keen and insightful understanding of the federal constitutional standards and their application to Connecticut's death penalty statute. The court cannot conclude, after judging Mr. Drager's actions from his perspective at the time, that his performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law. The petitioner has not affirmatively shown that Mr. Drager's choice not to directly raise a Clemons claim resulted in a miscarriage of justice. The claim of ineffective assistance of appellate counsel must fail, therefore.
Indeed, the approach by counsel on appeal showed a thorough and subtle approach to an issue that ultimately proved unsuccessful, but was nonetheless a highly sophisticated, cogent move on his part.
III. The Failure by the Defense Team to call Dr. Di Maio as a Witness at the Sentencing Proceedings
The petitioner has raised a third major attack upon the sentencing proceeding by alleging that his trial defense counsel were ineffective, for not calling Dr. Dominick J. Di Maio, M.D., F.C.A.P. to rebut the conclusions of the state medical examiner. In essence, the petitioner alleges that the state changed its theory of how the victim's death occurred at the argument on sentence. According to the petitioner, this caught Attorney Smyth by surprise and, as a result, he should have asked for a recess to introduce the testimony of Dr. Di Maio. The petitioner also argues that, given the decision to forgo calling Dr. Selig as a witness, without the testimony of Dr. Di Maio, the three-judge panel was left with an image of the petitioner as a homicidal predator who killed the victim to avoid detection for his crimes. Notwithstanding these assertions, the court does not agree.
Dr. Edward T. McDonough, M.D. from the state of Connecticut office of Chief Medical Examiner conducted the post-mortem examination of the victim. Dr. McDonough was the first witness to testify before the three-judge panel on May 30, 1991. After a lengthy description of the procedure he followed in conducting the autopsy, Dr. McDonough opined, with, reasonable medical certainty, that the "cause of death of Julia Ashe was asphyxia by airway occlusion and neck compression." Dr. McDonough goes on to further explain that this conclusion is based upon three concrete findings. First, he reports that there was no other apparent cause of death such as a gunshot wound or head injury. Second, the presence of the gag within and across her mouth that abutted on the nasal passage could have easily occluded her airway. Third, there was some, albeit not conclusive, evidence of manual strangulation. All of this led Dr. McDonough to conclude that the most likely, but not necessarily conclusive, cause of death was asphyxia.
Record of Trial, May 30, 1991, p. 53, Petitioner's Exhibit 4.
Dr. McDonough reported evidence of neck compression and injury to the victim's neck. See Petitioner's Exhibit 4, May 30, 1991, p. 54. As regards the neck injury, Dr. McDonough reported, "there were areas of hemorrhage in the muscles, what we call the strap muscles, which are thin muscles that look like straps. They go from the jaw down to the collarbone or from portions of the neck down to the collarbone. They support the neck structure. So both on the left and right side there were areas of hemorrhage in the neck . . . Hemorrhage of the neck are indicative that there's been enough force applied to the neck to break blood vessels and the most common would be some sort of strangulation." Petitioner's Exhibit 4, May 30, 1991, pp. 44-45. Significantly, however, the most definitive evidence of manual strangulation, specifically a fractured hyoid bone, the "U-shaped or C-shaped bone at the base of the tongue," was not fractured. Petitioner's Exhibit 4, May 30, 1991, p. 45.
At closing argument on the merits, the prosecutor did not offer a definitive theory as to when or how the petitioner brought about the death of the victim. It was the defense team however that argued to the three-judge panel that the state "must prove that Julia Ashe was alive when she went over the dam." In rebuttal, the prosecutor argued that "whether or not Julia Ashe was alive or dead before she hit the bottom of the dam, look at the photographs. Look at the injuries to her body, to her face, the bruises, the contusions, the scraping marks on her wrists, the tape, the bindings were broken. She lost her sneaker. My God, those are all pre-mortem, prior to death, those injuries. My God, was she alive or dead? Look at the photographs. Her knees were scraped, bruises on her knees, the bruise on her forehead, the bruises around where the gag was. I mean, if you look at them, it looks like what she tried to do is pull the gag off. She broke the bindings. The bindings are shattered both on her legs and on her foot — I mean, the legs and her hands. My God, was she alive or dead?"
Exhibit 6, June 13, 1991, p. 21.
Petitioner's Exhibit 6, June 13, 1991, pp. 30-31.
It was during the prosecutor's closing argument at the sentencing phase of the trial that the three-judge panel was asked to draw the inference, based upon all of the evidence that had been presented to the court, that "from the position of the body, that Mr. Cobb went back down and pushed her back in the water. How else does a body get in that position?" It is this request to the three-judge panel that the petitioner now says should have led his trial defense counsel to seek to re-open the defense mitigation evidence and introduce the testimony of Dr. Di Maio to rebut this inference. Attorney Smyth did object to this argument, however, the court overruled the objection.
Petitioner's Exhibit 11, August 12, 1991, pp. 17-18.
As previously discussed, there are two prongs to the question of ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 688 (1984). A petitioner must prove both deficient performance by his trial defense counsel and that this deficient performance operated to the prejudice of the petitioner so as to render the conviction and sentence unreliable. A failure by the petitioner to prove both is fatal. Moreover, a habeas court is free to decide the issue on either ground, whichever is easier. Valeriano v. Bronson, 209 Conn. 75 (1988). Putting aside the question for the moment as to whether the failure to call Dr. Di Maio was deficient performance or not, the court will examine the evidence that the Doctor could have offered from the standpoint of the potential prejudice to the petitioner, if any.
At the outset, it must be noted that Dr. Di Maio did not testify at the habeas trial. Consequently, this court has been deprived of an opportunity to personally assess whether the Doctor would have made a credible witness or not. Second, Dr. Di Maio did not personally conduct a postmortem examination of the victim. He did, however, review the photographs and slides of the crime scene and the postmortem examination as well as the laboratory reports, autopsy report and testimony of Dr. McDonough at the Hearing in Probable Cause before the late Judge Heiman. Dr. Di Maio's primary conclusion was that "the sole cause of Ms. Ashe's death that can be proven with medical certainty is `Asphyxia due to Intra-oral and Facial Gag.'" Respondent's Exhibit V.
What is clear then is that these two pathologists are not at odds in their conclusions. To he sure, Dr. McDonough allows as how there may be additional causes of death such as manual strangulation and far more unlikely, drowning, whereas Dr. Di Maio finds only asphyxia. Nevertheless, they both agree that the most likely cause of the victim's death was asphyxia. Both doctors are in agreement as to the obstruction of the victim's airway that the gag, simply by being in place, effected. However, given the clear evidence that the petitioner applied the gag to the victim at the top of the dam (taking care, so he said, to ensure she could still breathe), the evidence supporting the struggle of the victim to survive at the bottom of the dam, the location of the victim's body some distance from where she landed, it is clear that she did not succumb simply from the placement of the gag. It is clear that there was some additional external force that was necessary to complete the occlusion of her airway and bring about the victim's death.
The petitioner has argued that it was ineffective representation for his counsel not to call Dr. Selig at the punishment phase and now tried to use the potential testimony of Dr. Di Maio as further evidence to support his contention. However, as previously discussed, calling Dr. Selig to the stand would have brought the "lurid details" to the attention of the trier of fact for the first time. Most important of these facts is the return of the petitioner to the location where he had left Ms. Ashe the night before. As previously noted, this court has found as a fact that the petitioner lied to Dr. Selig about returning to find the victim already deceased. A far more likely interpretation of the totality of the evidence supports the conclusion that when the petitioner returned the next day, Ms. Ashe was still alive, although severely injured and probably on the verge of expiring. It is a more than logical inference that the petitioner, in order to guarantee that she could never testify against him, could have simply covered the weakened victim's mouth and nose, applying but a slight pressure to the facial gag in order to cut off the tiny percentage of air that she may have been receiving and thereby cause her death. Under that scenario, the testimony of Dr. Di Maio, particularly when coupled with what Dr. Selig would have told the three-judge panel, rather than undermining the prosecution theory would have been significant corroboration. Therefore, this court concludes that it is extraordinarily unlikely that any testimony offered by Dr. Di Maio would have benefited the petitioner in any way. Consequently, there can be no prejudice, the second Strickland prong for Attorney Smyth's failure to call his pathologist.
Conclusion
In the end, the very heart of a habeas corpus petition is a challenge to the reliability of a petitioner's conviction and sentence. Based upon all of the evidence adduced at the habeas trial and a thorough analysis of that evidence and the law, this court cannot conclude that the reliability of the petitioner's conviction and sentence is anything other than reliable. To be sure, there may be some areas in which the representation could have been performed differently, perhaps even better. However since the law does not require perfection, slight or de minimis mistakes are not enough to lead to the granting of a habeas petition. Although there are those that may argue that a different standard demanding perfection should be in place for a habeas involving a death penalty case, the law does not demand perfection even then. A constant re-litigation of issues, in addition to squandering precious judicial resources, undermines the entire criminal justice system. "A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of justice that cannot but war with the underlying substantive commands . . . There comes a point where a procedural system which leaves matters perpetually open no longer reflects humane concern, but merely anxiety and a desire for immobility." Bator, 76 Harv. L. Rev., at 452-53. "Without finality, the criminal law is deprived of much of its deterrent effect." Teague v. Lane, 489 U.S. 288 at 309 (1989).
Here, the petitioner has had: several pre-trial motions litigated; a contested trial on the merits; a contested trial as regards punishment; a proportionality review; an appeal to the Connecticut Supreme Court; an opportunity to petition for certiorari to the U.S. Supreme Court, and, now, a trial of his state habeas corpus petition. To this point, there has been no success in attacking the conviction and sentence. Even with this lengthy legal history, there yet remain several other avenues available to the petitioner before the sentence may be carried out. Notwithstanding, it is the conclusion of this court that there is no basis upon which habeas corpus relief can be granted. Therefore,
Normally, this would result in dissolution of the automatic Stay of Execution entered by this court on February 16, 2001; however, there is the one remaining issue that was referred to the Special Master that still needs to be adjudicated. See fn. 43, infra. Until such time as that is done, the Stay shall remain in effect.
The Petition for a Writ of Habeas Corpus is denied as to all of those issues before this court.
S.T. Fuger, Jr., Judge