Opinion
No. CV02-0819542
April 1, 2005
MEMORANDUM OF DECISION
The petitioner, Alkeith Gayle alleges in his petition for a Writ of Habeas Corpus initially filed on September 9, 2002 and amended on December 10, 2004, that his 1999 conviction for one count of felony murder in violation of C.G.S. § 53a-54c, one count of conspiracy to sell narcotics in violation of C.G.S. §§ 53a-48(a) and 21a-277(a), one count of the sale of narcotics in violation of C.G.S. § 21a-277(a), one count of attempt to commit robbery in the first degree in violation of C.G.S. §§ 53a-49 and 53a-134(a)(2), and one count of carrying a pistol without a permit in violation of C.G.S. § 29-35 were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of the effective assistance of trial defense.
This petition was initially filed in the judicial district of Hartford and transferred to the judicial district of Tolland on September 1, 2003.
This matter came on for trial before this Court on February 7, 2005 and again on March 29, 2005 at which time testimony was received from the petitioner, his trial defense counsel, Attorney Howard Gemeiner, and Attorney Walter Bansley, testifying as an expert in criminal trial advocacy. The transcript of the petitioner's trial, eight volumes in all, a motion for an examination under C.G.S. § 54-56d, and the decision of the Appellate Court in State v. Gayle, 64 Conn.App. 596 (2001) were received into evidence. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of New Haven, under Docket Number CR98-0466506 entitled State v. Gayle. The petitioner was charged with one count of murder in violation of C.G.S. § 53a-54a, one count of felony murder in violation of C.G.S. § 53a-54c, one count of conspiracy to sell narcotics in violation of C.G.S. §§ 53a-48(a) and 21a-277(a), one count of the sale of narcotics in violation of C.G.S. § 21a-277(a), one count of attempt to commit robbery in the first degree in violation of C.G.S. §§ 53a-49 and 53a-134(a)(2), and one count of carrying a pistol without a permit in violation of C.G.S. § 29-35.
2. Attorney Howard Gemeiner represented the petitioner throughout these proceedings.
3. The jury reasonably could have found the following facts to be true regarding the underlying offenses. "In the early morning hours of May 16, 1996, the defendant and his friend, Jason Jeter, were present in a park near the corner of Chapel and Day Streets in New Haven. The defendant and Jeter planned to rob passersby, as they apparently had on previous occasions. The defendant was armed with a .38 caliber snub-nosed revolver. The two met with an acquaintance, Robert Pinkston, and the three then sat down on benches near the edge of the park.
4. "Shortly thereafter, the victim, Thomas Harris, approached the park near to where the defendant, Jeter and Pinkston were sitting. The defendant and Jeter walked toward Harris while Pinkston remained seated. Harris asked the defendant and Jeter whether they were `working,' i.e., selling drugs, to which the two replied in the affirmative. Jeter asked Harris, `How many?' and Harris replied, `Four.' Jeter reached into the defendant's jacket pocket and removed four individually wrapped pieces of a substance subsequently alleged by the state to be crack cocaine. Harris paid the defendant $40 for the drugs.
5. "Jeter turned to head back toward Pinkston, and the defendant told Harris to `run it,' meaning that Harris was to return the alleged crack cocaine and to surrender his other valuables to the defendant. Harris replied, `I don't have time for this,' and started to leave. A brief scuffle ensued between Harris and the defendant. Harris broke free and began to walk quickly away. Jeter had stopped to watch this encounter. The defendant took a revolver from his pocket and aimed it at Harris. The defendant looked over at Jeter, who told the defendant to shoot Harris. The defendant fired one shot, which struck Harris in the back of the head. Harris fell to the ground, bleeding profusely. Jeter and the defendant fled the park, running past Harris. Pinkston fled on his bicycle in a different direction.
6. "Jeter and the defendant ran to a nearby group of apartment houses on Day Street, one of which was the defendant's residence. The defendant went to the back steps of the apartment, and Jeter, after some time, returned to the park and retrieved the four pieces of alleged crack cocaine, some of which were in the victim's hand, the rest on the sidewalk nearby. Jeter returned to the apartment houses and met the defendant, who by then had entered his residence on the second floor. The defendant gave Jeter money in exchange for the alleged crack cocaine.
7. "Jeter remained at the defendant's residence until later in the evening. When Jeter left the defendant's apartment, Harris still lay on the ground in the park where he had fallen. Sometime thereafter, a neighborhood resident summoned police and medical personnel. The victim had lost a large amount of blood and died of his gunshot wound en route to the hospital."
State v. Gayle, 64 Conn.App. 596 (2001).
8. The petitioner's mother hired Attorney Howard Gemeiner to represent him in the criminal trial.
9. Attorney Gemeiner is, and was, at the time of his representation of the petitioner, actively engaged in the practice of law in Connecticut.
10. Attorney Gemeiner managed to negotiate a pretrial plea agreement with the state's attorney, John Waddock, that would have resolved all of the charges pending against the petitioner in exchange for a prison sentence of sixteen years.
11. Attorney Gemeiner believed this to be a very good offer from the state and went to exceptional lengths to try and convince the petitioner to accept the pretrial agreement.
12. The petitioner refused to accept the state's offer and insisted upon having the case proceed to a trial on the merits. The petitioner insisted that he had not shot the victim and believed that the state's main witness against him, Jason Jeter who identified the petitioner as the shooter, was an individual of low credibility and that the jury would not believe his testimony.
13. Attorney Gemeiner painstakingly explained the concept of felony murder to the petitioner so that the petitioner understood that even if he did not actually shoot the victim, since his accomplice in the commission of a felony did, he could and more than likely would, be convicted of felony murder.
14. Even so, the petitioner steadfastly refused to accept the pretrial agreement.
15. Following a trial of the case to a jury, the petitioner was convicted of all of the charges, except murder on April 9, 1999 and was thereafter sentenced by the Court, Freedman, J. to an effective term of confinement of sixty-five years on June 18, 1999.
As Attorney Gemeiner astutely predicted, the petitioner was indeed found guilty of felony murder.
16. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand 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. . . . 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, 229 Conn. 397 at 422-23 (1994).
Deprivation of Effective Assistance of Counsel
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's trial defense counsel, the petitioner 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.
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. It is indisputable fact that many times if one had foreknowledge of certain events, different courses might well have been taken. Likewise, a habeas court knowing the outcome of the trial "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. Commisioner 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).
In the instant case, there are a plethora of allegations involving the performance of Attorney Gemeiner, however, there was a paucity of proof supporting these allegations adduced at the habeas trial. To be sure, the petitioner did introduce the transcript of his criminal trial thereby allowing the habeas court to ascertain what Attorney Gemeiner said on the record at the criminal trial. Pointedly, while virtually all of the items in the petition allege failures on the part of Attorney Gemeiner to do something, there was no proof at the habeas trial as to whether any of these alleged failures to act were indeed viable strategies that should have been pursued and what would have happened had he done these things. Consequently, there is no way that this court can conclude that the petitioner has met his burden of proof that he was the "victim" of ineffective assistance of counsel. A habeas court does not sit as an examiner to grade the performance of trial defense counsel. To submit a transcript and essentially ask the court to engage in a plenary critique of counsel's efforts and to then attempt to find something wrong is a misunderstanding of the role of the habeas court and the burden that rests with the petitioner. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984). Justifiably, then the burden of persuasion in a habeas case rests with the petitioner 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, 229 Conn. 397 at 419 (1994). There is, therefore, 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.
Moreover it is not even 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).
In the instant case, the petitioner has presented affirmative evidence on two points that need to be addressed. First, the petitioner alleges that his attorney should have been more diligent in explaining the concept of felony murder to the petitioner. As a result, the petitioner alleges that he improvidently rejected the pretrial offer and was saddled with a sixty-five year sentence to incarceration. Second, the petitioner alleges that his trial defense counsel in his closing argument invited the jury to find the petitioner guilty. The Court is not persuaded that either situation merits relief.
The primary issue in this habeas case revolves around the conveyance of the pretrial offer from the state to the petitioner. Essentially, the petitioner now regrets not having accepted the offer and accepting a sixteen-year sentence. Nevertheless, the time to accept that offer came and went and the petitioner, as is his constitutional right, insisted upon a trial.
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.
Notwithstanding, it is clear to this Court that Attorney Gemeiner did everything he could ethically do to convince the petitioner to accept the state's offer. Attorney Gemeiner clearly recognized that irrespective of the homicide of Mr. Harris, the petitioner was facing serious felonies that could easily have resulted in a sentence that far exceeded the sixteen years offered by the state. It is also clear to this Court that the facts of this case clearly show that there was a strong likelihood that the petitioner would be convicted of felony murder. Consequently, the petitioner, at the outset of trial, stood to receive a long prison term. Attorney Gemeiner was clearly frustrated with the refusal of his client to make what was, to him, the obvious correct decision and plead guilty. Indeed, both petitioner and counsel are in agreement with the tempestuous tone of the meetings between attorney and client regarding this question. Nevertheless, the petitioner wanted to go to trial, probably foolishly believing that he would be acquitted of all of the charges. Attorney Gemeiner did as he was supposed to do in that case. He honored his client's wishes and proceeded to try the case to the jury.
Of course, that is precisely what did happen.
There is no doubt in this Court's opinion that Attorney Gemeiner fully and adequately explained the concept of felony murder to the petitioner. The petitioner's assertions to the contrary, this Court also firmly believes and finds that the petitioner did understand that concept. The petitioner knew Jason Jeter to be a liar and believed that a jury would also reach the same opinion. He was convinced that a jury would acquit him and disregarded the valuable advice that he was given by his own lawyer, relying upon his own beliefs instead. He was wrong. That error, however, is the petitioner's in not following the good counsel given him. It is not the fault of Attorney Gemeiner.
"Many receive advice, few profit by it." Publius Syrus, Maxim 149, 42 B.C.
The second issue raised in the habeas trial revolved around the closing argument The petitioner argues that his counsel undermined his defense by inviting the jury to convict the petitioner. To prove this, the petitioner extracts a small portion of Attorney Gemeiner's closing argument. However, this Court has read the entirety of the closing argument. In essence, Attorney Gemeiner was arguing that this was a case of reasonable doubt and that even if the jury were convinced that the petitioner might have committed the crimes, that is not enough. It is a strategy that is often used by criminal defense counsel in making closing argument and often times is successful. Here, it was successful in convincing the jury to acquit the petitioner of murder, however, it was not enough to convince the jury to reach a total acquittal. The Court finds that the totality of the closing argument met the standards of performance of a reasonably competent counsel. More importantly, however, even if the closing argument was somehow deficient, there is no showing that a better closing argument by counsel created a reasonable probability of a different outcome. There is nothing in Attorney Gemeiner's argument to undermine this Court's confidence in the verdict of the jury.
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 (1984)." 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 petitioner in the instant case is demanding perfection and this exceeds the standards by which the effectiveness of counsel are judged.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge