Opinion
No. CV 00 440712
February 17, 2005
MEMORANDUM OF DECISION
The petitioner filed the above-captioned petitions for writ of habeas corpus in July and August of 2000 which were then consolidated. The habeas trial took place on September 25, 2003, December 8, 2003 and January 6, 2004. The court will quote directly from the petitioner's brief to give the procedural background of this case.
The Petitioner was the defendant in a criminal case, docket number CR96-0430427T, in the judicial district of New Haven at New Haven. The Petitioner was arrested by warrant on April 30, 1996. He was charged with felony murder in violation of C.G.S Section 53a-54c, conspiracy to commit robbery in the first degree in violation of Section 53a-48/53a-134 and robbery in the first degree in violation of C.G.S Section 53a-134. The matter was transferred from the Superior Court Juvenile matters in New Haven to the Superior Court Part A in New Haven, where Petitioner appeared on May 14, 1996. On July 10, 1996 the Petitioner waived his right to a probable cause hearing.
The trial commenced on this matter on May 26, 1998. Jury Selection took place on May 26, 27, 28, 29, 1998 and June 2 and 9, 1998. The State proceeded at trial with an amended information charging Petitioner with felony murder and aiding and abetting robbery in the first degree. The Petitioner was found guilty by a jury on both charges on June 15, 1998. The Trial Court on August 25, 1998 sentenced the Petitioner to 45 years on the felony murder count and 20 years on the robbery count, concurrent, for a total effective sentence of 45 years.
The Petitioner is currently in custody of the Respondent per the aforementioned sentence. The Petitioner was represented by Attorney Robert Sweeney at trial.
The petitioner's convictions were upheld in State v. James Griffin, 253 Conn. 195 (2000). At pages 197-99 the court summarized the facts:
The jury reasonably could have found the following facts. In December 1995, the defendant, who resided in an apartment located at 50 Button Street, New Haven, regularly purchased drugs from Ian Brown, a cocaine dealer known as "Ryder." The defendant generally contacted Ryder through Ryder's paging device when the defendant wished to purchase narcotics from him. Ryder usually delivered the drugs to a location across the street from the defendant's apartment. Although the defendant sometimes picked up the drugs from Ryder, he frequently sent someone else to do so.
On December 13, 1995, at approximately 6 p.m., Carlyle Herring, an acquaintance of the defendant, arrived at the defendant's apartment. Herring, who was then fifteen years old, had been to the defendant's apartment to use drugs on a few previous occasions. After engaging Herring in small talk, the defendant told him about a drug dealer named Ryder, whom Herring did not know. The defendant then suggested robbing Ryder of the drugs and cash that Ryder customarily carried. Specifically, the defendant proposed a plan whereby he would contact Ryder to set up a drug buy, and Herring, rather than the defendant, would meet with Ryder, ostensibly to pick up and pay for the drugs. Instead of purchasing the drugs from Ryder, however, Herring would rob Ryder of the drugs and any money that Ryder had in his possession. The defendant further explained that Ryder would be unable to identify Herring because Ryder and Herring did not know one another. After initially rejecting the defendant's suggestion, Herring agreed to the robbery plan.
The defendant then left the apartment and, upon returning, informed Herring that he had contacted Ryder, who had agreed to deliver the drugs to the usual location. The defendant gave Herring a .38 special revolver, and both Herring and the defendant walked across the street to await Ryder's arrival. Soon thereafter, the defendant saw Ryder's car approaching and pointed it out to Herring. As the car pulled up, the defendant hid so that Ryder could not see him.
Herring walked over to Ryder's car. Ryder was driving and Ira Lawrence, whom Herring also did not know, was sitting in the front passenger seat. Ryder asked Herring to identify himself. Herring stated that he was "Coco's" little brother and that the defendant had sent him to pick up the "stuff." Ryder, who knew Coco, identified himself to Herring, and Herring got into the back seat of Ryder's car. After driving around the block, Ryder pulled over and parked a short distance from the defendant's apartment.
The three men remained in the car, and Ryder handed Herring a plastic package containing one ounce of cocaine. When Herring did not immediately pay for the cocaine, Ryder told him to return the package and get out of the car. With the package in his possession, Herring exited the vehicle, removed the revolver from his coat pocket, put the revolver to Ryder's head and threatened to kill Ryder if he did not give Herring all of the money and drugs in his possession. Ryder complied, handing Herring two to three ounces of cocaine and several hundred dollars in cash. Herring then fired two shots, striking Ryder in the thigh and Lawrence in the chest. Ryder drove to the hospital, where Lawrence died as a result of the gunshot wound to his chest. After the shooting, Herring gave the stolen drugs and money to the defendant.
The petitioner's writ sounds in three counts. The second count has been withdrawn. The first count claims Attorney Sweeney did not provide the petitioner effective assistance of counsel guaranteed by the State and Federal constitutions. In his post-hearing brief as to the first count, alleging ineffective assistance, the petitioner claims:
1. Trial Counsel did not conduct a sufficient investigation into the legal issues of the Petitioners' case.
2. Trial Counsel did conduct sufficient investigation into potential defenses to the prosecutions' case.
3. Trial Counsel did not conduct sufficient investigation into the elements of the prosecutions' proof.
4. Trial Counsel did not conduct sufficient investigation into the Petitioners' case.
5. Trial Counsel did not conduct sufficient investigation into witnesses available to support potential defenses.
6. Trial Counsel failed to call at trial witnesses who could support potential defenses for the Petitioner.
7. Trial Counsel failed to file a motion to set aside the jury's verdict.
8. Trial Counsel failed to effectively cross-examine key State witnesses at trial.
9. Trial Counsel failed to permit the Petitioner from testifying in his defense at trial.
At the hearing on this matter and in his post-trial brief the petitioner narrowed the ineffective assistance claim in the First Count further. In his brief the petitioner argues that:
Attorney Sweeney did not conduct any investigation into the facts relevant to Petitioner's case. The only action claimed by Trial Counsel was a brief drive by of the crime scene. No investigator was hired to conduct a thorough review of potential defenses to the prosecution of the Petitioner. Trial Counsel did not visit the Petitioner in jail to discuss the case but rather limited visits to the "bull pen" during court dates. Trial Counsel failed to locate, pretrial, interview and call at trial material witnesses that would have provided exculpatory evidence for the Petitioner; more specifically, Iesha Kyles.
The remaining third count raises a claim of actual innocence.
The court will first discuss the legal standards and requirements of an ineffective assistance and actual innocence claim and then review the trial transcript and the habeas transcript. At the habeas trial Attorney Sweeney, the petitioner, and Iesha Kyles testified.
I.
The petitioner's first claim is that he did not receive the effective assistance of counsel. A criminal defendant has a right to the effective assistance of counsel under the Sixth Amendment to the federal constitution at all critical stages of a criminal prosecution. In Duperry v. Solnit, 261 Conn. 309, 335 (2002) the court, relying on Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984), said that:
. . . [T]he United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland the petitioner must show that: (1) defense counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that but for defense counsel's deficient representation, the result of the proceeding would have been different.
The court will discuss the first requirement of an ineffective assistance claim — did the representation fall below an objective standard of reasonableness. Then the court will discuss the second aspect — given ineffective assistance was there prejudice.
(1)
The Strickland court discussed in some detail the nature of the effective assistance counsel must provide. At pages 687-88 the court said perfection is not required, what is being talked about is reasonably effective assistance. Also an "objective standard of reasonableness" must be applied. Reasonableness is to be determined by examining all of the circumstances. At page 689 CT Page 2761 Strickland went on to say that: "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Here, as in Strickland, one of the matters in issue is the duty to investigate and the Strickland court at pages 690-91 made the following observations concerning this obviously necessary component of effective representation.
. . . [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. However, regarding the duty to investigate, it should also be noted that our court in Siemon v. Stoughton, 184 Conn. 547 (1981) said that: "failure to conduct an adequate investigation is not a matter of trial tactics." Id., page 557. The court also cited several cases from other jurisdictions which have held "that inadequate pretrial investigation is sufficient to constitute ineffective assistance of counsel." Id., page 556., cf. Siano v. Warden, 31 Conn.App. 94 (1993) where ineffective assistance found in situations where counsel failed to call doctor who would have supported defendant's position that he could not have physically done the crime. Other failure to investigate cases leading to conclusions of ineffective assistance are Rowley v. Warden, 2001 Ct.Sup. 9540 (Judicial district of New Haven). Cases cited by petitioner on this issue are Profitt v. Waldron, 831 F.2d 1245, 1249 (CA. 5, 1987); Deutscher v. Whitley, 884 F.2d 1152, 1159 et seq. (CA. 9, 1989); Crandell v. Bunnell, 144 F.3d 1213, 1217 (CA. 9, 1998). Also see other failure to investigate and failure to present witness cases. Douglas v. Hendricks, 236 F.Sup.2d 412, 431 (D.N.J., 2002); Murrell v. Frank, 332 F.3d 1102, 1118 (CA. 7, 2003); Anderson v. Johnson, 338 F.3d 382, 390 (CA. 5, 2003); cf. Bell v. Cone, 535 U.S. 685, 700 (2002); also see Quilling v. U.S., 243 F.Sup.3d 872, 883 (S.D.Ill., 2002).
In determining whether an attorney's performance fell below an objective standard of reasonableness the Strickland court noted that the "[p]revailing norms of practice as reflected in American Bar Association Standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) ('The Defense Function') are guides to determining what is reasonable, but they are only guides." 466 U.S. at page 688.
The court did note that: "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Indeed the court went on to note "detailed guidelines `could distract counsel from the overriding mission of vigorous advocacy.'"
As to the requirement placed upon defense counsel to investigate the ABA Standards for Criminal Justice (3d ed.) state the following:
4-1.1 Duty to Investigate (A) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to the facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcements authorities. The Duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty.
The relevant portion of the commentary to § 4-1.1 says:
Facts form the basis of effective representation. Effective representation consists of much more than the advocate's courtroom function per se. Indeed, adequate investigation may avert the need for courtroom confrontation. Considerable ingenuity may be required to locate persons who observed the criminal act or have information concerning it. After they are located, their cooperation must be secured. It may be necessary to approach a witness several times to raise new questions stemming from the facts learned from others . . . The effectiveness of advocacy is not to be measured solely by what the lawyer does at trial; without careful preparation, the lawyer cannot fulfill the advocates' role. Failure to make adequate pretrial preparation and investigation may also be grounds for finding ineffective assistance of counsel.
Two final observations, however, should be made. As noted earlier with ineffective assistance claims in general, where such claims are based on inadequate investigation it is also true that: "The issue, therefore, is not what counsel should have done to constitute the proper representation of the defendant considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time, the defendant received effective assistance of counsel." Gentry v. Warden, 167 Conn. 639, 647 (1975); Suite v. Ralls, 167 Conn. 408, 432 (1974). On the other hand although it is true that a heavy measure of deference must be given to defense counsel's decisions: "This measure of deference . . . must not be watered down into a disguised form of acquiescence." Profitt v. Waldron, supra 831 F.2d at page 1248.
(2)
The second prong of the standard used to determine if counsel was ineffective requires that the petitioner show that "there is a reasonable probability that but for defense counsel's deficient representation the result of the proceeding would have been different." Strickland at 466 U.S. page 688. Thus to show prejudice there must be a reasonable probability that because of counsel's deficient performance confidence in the outcome is undermined and also a reasonable probability that the jury would have had a reasonable doubt regarding guilt. Id., pp. 694-95. See also Dupery v. Solnit, 261 Conn. 309, 335 (2000); Fair v. Warden, 211 Conn. 398, 407-08 (1989).
(3)
In applying the tests set forth in Strickland — (1) deficient performance, and (2) the deficient performance prejudiced the defendant, the court made the following observation regarding these two inquiries:
. . . [T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one . . . The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.
In State v. Salazar, 707 P.2d 944 (Ariz. 1985), the court, following Strickland, said that . . . "we deem it appropriate to apply the prejudice component first. Thus, assuming arguendo that counsel's performance was ineffective, we examine whether there was a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., pp. 945, 946. The court went on to hold, id., page 947, that: "As the defendant has failed to show that the alleged ineffective assistance of trial counsel caused any prejudice, we need not reach the performance question." Also see People v. Kipp, 18 Cal.4th 349, 367, 956 P.2d 1169 (1998); 21a Am.Jur.2d, "Criminal Law," § 1225, page 490.
II.
The petitioner also makes a claim of actual innocence. Player v. Commissioner of Correction, 73 Conn.App. 556, 559 (2002) defines the standards to be applied in evaluating such a claim:
[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 . . . To prevail on a claim of actual innocence, the petitioner must satisfy two criteria. First, [he] must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, [he] must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime. (Citation omitted; internal quotation marks omitted.)
Miller v. Commissioner of Corrections, 242 Conn. 745 (1997). In Miller the court said that the clear and convincing burden "is sustained if the evidence induces in the mind of the 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." Id., page 794; the standard "requires an exceedingly persuasive case that (the petitioner) is actually innocent." Id., page 795.
III. (a)
Guided by the foregoing general principles the court will now try to apply them to the facts of this case in order to analyze the petitioner's ineffective assistance claim. In order to do that it is necessary to concentrate on the argument the petitioner actually makes in his post-hearing brief regarding deficient performance by defense counsel. What is in fact before the court?
At the habeas trial the petitioner stated that he wanted to testify but defense counsel strongly urged him not to do and in effect failed to permit him to do so. In the first count alleging ineffective assistance the petitioner makes a variety of claims besides the one just mentioned. It is said defense counsel did not conduct a sufficient investigation into legal issues, failed to file a motion to set aside the verdict or effectively cross-examine the State's key witness, Herring. But none of these matters were discussed in the petitioner's post-hearing brief nor was there any focus on how any of the claimed lapses constituted ineffective assistance in the actual factual context of this case or how these alleged failures resulted in prejudice under the Strickland standard.
These observations also apply to some aspects of the failure to investigate claim — no investigator was hired, failure to visit the petitioner in jail which apparently is offered to show lack of adequate preparation or failure to follow investigative leads which the petitioner might have offered, failure to locate, interview, and call witnesses (in the plural) "that would have supplied exculpatory evidence." But at the actual hearing on this matter the petitioner presented only the testimony of Iesha Kyles as the one witness not contacted, who if called a "reasonable jury . . . could have found that Carlyle Herring acted alone without any involvement of Mr. Griffin." The petitioner goes on to argue that in light of Kyles's exculpatory testimony "the result would have been different" if she had testified. The court cannot consider any general, non-specific claim that there was a failure to interview or call other witnesses besides Kyles; affidavits or sworn testimony must be presented describing the testimony of any such witness, State v. Arakawa, 61 P.3d 537 (Haw. 2002). It has been said that "a habeas court cannot even begin to apply Strickland standards to . . . a claim (of failing to conduct a proper pretrial investigation) unless and until petitioner makes a (specific, affirmative showing as to what the missing evidence or testimony would have been," U.S. Ex Rel. Partee v. Lane, 926 F.2d 694, 701 (CA. 7, 1991). In other words . . . "evidence about the testimony of a putative witness must generally be presented in the form of actual testimony of the witness or an affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim," U.S. v. Ashimi, 932 F.2d 643, 650 (CA. 7, 1991).
(b)
This habeas petition then appears to only come down to a claim that defense counsel's failure to interview Kyles and call her as a witness during the trial was deficient and resulted in prejudice under the Strickland test.
As noted in its general discussion concerning the Strickland test of ineffective assistance, courts can, and this court initially, will assume arguendo deficient performance regarding Kyles and move first to the prejudice component of the test. In particular this approach has been applied when there is a specific claim that defense counsel failed to investigate and interview or call witnesses during trial, Douglas v. Hendricks, 236 F.Sup.2d 412, 431-32 (D.NJ, 2002), cf. Goeth v. Stewart, 49 Fed Appx. 113. Also see William v. Commissioner of Correction, 41 Conn.App. 515, 518-23 (1996). There the prejudice component could not be met where the purported exculpatory testimony of a witness not called was found to be "unworthy of belief," see also Murrell v. Frank, 332 F.3d 1102, 1118-20 (CA. 7, 2003).
The evidence that Kyles would have given as reflected in her habeas testimony and which is claimed to be strongly exculpatory must be considered in light of the totality of evidence that was before the trial jury, Strickland at 466 U.S. page 695, Williams v. Commissioner of Corrections, 41 Conn.App. at pp. 522-23, State v. Salazar, 707 P.2d at page 946. It is also true that the strength or weakness of the case is an important factor in determining whether a particular error, assumed or established, caused prejudice, Strickland, id. page 696, Anderson v. Johnson, 338 F.3d 382, 393 (CA. 5, 2003), cf. Murrell v. Frank, 332 F.3d 1102, 1117-18 (CA. 7, 2003).
With these observations in mind the court will first review the trial testimony.
Ian Brown was called by the State; he drove the car in which Ira Lawrence was a passenger and in which he was shot and Lawrence received wounds resulting in his death. Brown testified that he supplied the defendant, whose nickname was Little James, with drugs every other day. Brown carried a beeper and he would know it was time to deliver drugs when Kyles's number appeared on his beeper. He would then drive to Button Street and pull up across from 50 Button Street where the defendant lived. Sometimes the defendant would take delivery of the drugs but sometimes he would have other people pick up the drugs for him; Brown said he did not know the names of these other individuals. On the night of the shooting, December 13, 1995 he got beeped at his girlfriend's and Kyles's phone number appeared on his beeper which was his signal to drop off drugs at Button Street. On the way there he picked up Ira Lawrence. Brown was driving a rental car, a blue Grand AM. He did not use his car because it would have been seized by the police if he were to be arrested. Every other week he changed the rental car. When he got to Button Street a man he later identified as Herring approached the car and asked if he was Rider. Herring said he was Coco's brother and was sent by Little James (the defendant's street name) to get "his stuff." Brown testified he did not recognize Herring and had asked him who he was. At one point during the trial the following occurred:
Q. (State's Attorney)
On previous occasions, on days before this day of the shooting when people would come up to the car that you didn't recognize, would you go through the same type of thing to make sure they had been sent by Little James?
A. (The defendant)
Sir, yes sir.
Herring then got into the car and they drove around the block. Brown said "the arrangement was he was sent to get an ounce" of cocaine. Brown gave Herring the drugs but he did not have any money. Brown asked for his drugs back but Herring pulled a gun and demanded the drugs, money, and Brown's cellular phone. Brown complied but Herring shot twice wounding Brown and fatally wounding Lawrence. Brown then drove Lawrence to a hospital.
The police came to the hospital and Brown said he had been robbed but didn't mention drugs or money directly and said he went to Button Street because he got a beep from Kyles.
Defense counsel brought out that after seeing Kyles's number on his beeper he called her and she asked him to come over. When he got to Button Street, he tried to call her again. The witness's serious criminal record was also brought out as was his rather heavy involvement in drug dealing. On cross examination Brown said he did not know how many people knew he was a drug dealer and hoped he would not get arrested for his testimony about his drug dealing which netted him about $1000 per week. In a statement to the police he did not at first tell them he called Kyles back after her number appeared on his beeper and didn't mention Little James. Later in the statement he said he did in fact call Kyles back and she said come by and see me.
Carlyle Herring was also called as a witness by the State. Herring said he knew the defendant "since juvenile," knew that he lived at 50 Button Street and had been there three or four time since the shooting on December 13, 1995. He went to the defendant's apartment at 6:00 p.m. on that night, the defendant's mother and a man named Marquis Beverly were also there.
Herring said Griffin and he engaged in small talk and he mentioned a man named "Ryder"; Herring never heard that name before. Griffin said Ryder sold ounces of cocaine. Griffin talked Herring into robbing Ryder; he had beeped him and he could be robbed of money and drugs. Griffin said Herring should do the robbery because Ryder didn't know him. Griffin left the apartment with Kyles and then returned without her. When he came back he said he had set the robbery up by paging Ryder; Griffin had no phone in his house. Griffin gave Herring a weapon.
Herring says that he and the defendant left the apartment and went to the driveway of Kyles's house across the street. Griffin told him when Ryder came he would point out the car; Herring did not know the kind of car Ryder was driving at the time. Kyles was home and he threw pebbles at her window while he was waiting for Ryder. At some point Griffin told Herring "This is Ryder's car. This is Ryder's car"; the car stopped in front of the Kyles's house. Griffin went back up the driveway to hide. Herring approached the car and said: "Yeah, I know Little James." He got in the car and they rode around the block. Herring's narrative of the robbery and shooting parallels that of Brown (Rider/Ryder). He got drugs, money, and a phone and admitted to the shooting.
The car pulled off and Herring said he and Griffin ran into Griffin's house; Griffin had re-crossed the street while Ryder was driving around the block and he came out of an alley next to his house to join Herring in running to his apartment.
Herring did not realize that as he was running into Griffin's house he dropped some money. When they got to the apartment Herring said he gave Griffin what he had taken and Griffin, who lived on the third floor, went to a second floor apartment and hid it.
Marquis and Griffin went to the street after the police came; Herring stayed in the Griffin apartment where they found him in a bedroom.
On cross examination defense counsel brought out that before he gave a statement to the police Herring had heard from "quite a few people" that Griffin told the police he, Herring, was involved in the shooting. Herring gave the statement on January 22, 1996, the day he was arrested.
Herring said he was angry when he heard Griffin implicated him in the crime "because he's the one that set it up, why would he snitch on me."
At the time of his testimony the 19-year-old Herring had pled guilty to felony murder, assault and robbery. The judge taking his plea told him he would receive thirty years if he cooperated and testified truthfully but the judge also had the option of sentencing him to 25 years but he could not get less than that.
The defendant's mother was also called as a witness by the State. After testimony that was somewhat confusing she was shown a statement given to the police the night of the shooting in December 1995; her trial testimony took place June 10, 1998. There was no dispute that she heard shooting and called out for her son being concerned for his safety. She was in her bedroom watching television at the time. Her refreshed memory was that when she called for her son, "Biz" (Marquis Beverly) answered not her son. Mrs. McPherson agreed to the following characterization by the state's attorney . . . "it was Biz that answered, then you heard the door . . . then you heard footsteps on the stairs that lead to the street, although you don't know who was on them, and then you heard your son say: I'm right here, Ma?" Upon cross examination defense counsel brought out the fact that seconds only passed between these events, the witness had the television on and her bedroom did not directly abut the hallway. But her recollection as refreshed above was not changed by any of the examination.
The mother also testified that the day of the shooting "Biz," Kyles, her son, and Herring who she knew as "C.L." were in the apartment. But she only met Herring the first time that day and he had never been to her apartment before to her knowledge — she was at home most of the time during the day.
It is against this evidentiary background that the prejudice component of Strickland must be examined in relation to the failure to locate and interview Kyles and present her testimony at trial. Her trial testimony would presumably be what she would have told defense counsel if he had contacted her and what she testified to at the habeas proceeding.
At the habeas proceeding Kyles testified that on or about December 13, 1995 she knew Ian Ryder Brown and Ira Lawrence. Ryder was described as a close friend whom she dated although he was married; she said she knew him for a couple of months. He saw her every other day. On December 13th she locked herself out of the house and stayed at the defendant's apartment during the day. At one point she said she was there a couple of hours. She returned to her house when it started to get dark and her uncle got home. She paged Ryder at her house; Griffin was not present and did not tell her to page Ryder. She denies ever paging Ryder because Griffin wanted drugs from him. She testified she never told Griffin she had paged Ryder.
Kyles said she paged Ryder because she needed money and told him that and she further denied having seen Brown known as Ryder that night.
When she was at the defendant's apartment during the day she saw Marquis Beverly there whose nickname is "Biz" and she saw "C.L." known as Carlyle Herring. That night she saw Herring again, he threw a rock at her window at the side of the house and responded affirmatively when asked if she was going to be home. She did not see Herring again.
To her knowledge the defendant and Ryder dealt drugs; that was part of their relationship. She said she gave two statements to the police right after the incident; in the second one she told the police she paged Ryder from her house to ask him for money.
Defense counsel never contacted her before trial, although she was available from the date of the incident to 1999 in New Haven. She moved out of state then but returned in 2003.
The Assistant State's Attorney cross examined Kyles. Kyles told her she met Herring for the first time on December 13, 1995 and learned his name after that. She never saw Herring with Griffin before then. She had known Griffin for years and was a good friend of his. She realized her beeper number was on Ryder's pager. When shown a statement she gave the police on December 16, 1995 she changed her previous testimony and agreed that she did not tell Ryder she wanted to borrow money — she would rather ask him in person. She also told the police that while she was with the defendant on December 13th, they smoked marijuana and drank alcohol. She admitted using drugs and Ryder would sometimes give her drugs. She repeated that she knew Ryder and the defendant were drug dealers, that Ryder would deliver drugs to Button Street, and it was not a secret that Ryder would have money on him.
She then said when she got back to her house she heard people outside in the driveway area. She had a conversation with Mr. Allen, whose house she lived in, concerning this and said he told her to look out the window to see who it was. She denied telling Allen that someone she saw looked like "L.J.," the nickname of the defendant. In her statement to the police she said there was more than one person in the driveway area. In fact both sides agreed to have her statements to the police as full exhibits, not for their truth but just as having been given. The State conceded defense counsel had those statements. On cross examination it was also brought out that although Kyles was now saying she called Ryder for some money she did not wait outside for him, although he said he was coming to Button Street soon. Kyles responded to the effect that Ryder would come to the door and ring her bell; he had done that in the past. Ryder suspected she had set him up for the robbery but she denied doing so.
Taking into account the foregoing trial testimony through the perspective of the absence of what Kyles's testimony would have been had she testified at trial the court cannot find the prejudice component has been met by the petitioner i.e., that (1) confidence in the outcome of the trial is undermined and (2) there is a reasonable probability that the jury would have a reasonable doubt regarding guilty because of the alleged deficient performance. The court finds this to be so whether a preponderance of the evidence or a clear and convincing standard of proof is placed on the petitioner for the prejudice component.
For one thing the case cannot be described as a weak one. In fact the trial testimony strongly suggests the complicity of Griffin in setting up and planning this robbery. The shooter was with Griffin for a fairly substantial period of time before the shooting. There is nothing to indicate Herring knew or had reason to know who Ryder Brown was let alone that he carried large quantities of drugs or money on him, or even that, if he knew all those things, that he would know the kind of car Ryder was driving. It must be assumed the petitioner knew the type of rental car Ryder would be driving; he changed it every other week but Griffin saw Ryder every other day driving over to Button Street where the petitioner lived. A quantity of money was found near the entrance porch of Griffin's house right after the robbery. Herring, the shooter, was found in the back bedroom of the Griffin apartment by the police after the shooting. From reading the trial transcript the petitioner's mother seemed like an honest and nice person faced with the unsettling prospect of offering testimony against her son. In an indirect way she did. After hearing shots, which no one contests were the ones fired at Brown and Lawrence, she naturally called out for her son from the room in the apartment where she was watching television. Her son did not answer immediately only Marquis Beverly ("Biz") did so, she heard footsteps on the stairs and then her son ran into the room assuring her that he was all right. This corroborates Herring's testimony that Griffin had gone outside with him — why would he do that but to spot the Ryder car for Herring?
Also Ryder Brown was an admitted drug dealer who brought drugs over to Button Street and presumably other locations. His trade required him to be suspicious. He changed rental cars every other week so any particular car he was driving would not be noticeable to the police. One can even speculate that he picked up Lawrence on the way to Button Street for some kind of protection for his operation. He would not let anyone into his car let alone approach it for the purpose of buying drugs without some assurance of who they were. Where would Herring have gotten the code word "Little James sent me" but from Griffin? Why would Griffin have told Herring the code phase unless he wanted to set up a robbery? How would Herring have known this code phrase would enable him to get in the vehicle driven by Ryder Brown whom he did not know?
Furthermore the testimony of Herring and Brown as a whole was articulate and their stories did not contradict each other. Their testimony was not seriously weakened by the actual cross-examination that took place nor has there been a suggested line of cross-examination that would have been more helpful to the petitioner.
As previously noted considering the foregoing the case against the petitioner was not a weak one. There was substantial direct evidence and circumstantial evidence linking the petitioner to these crimes. There was no forensic evidence to do so but in no case the court has read was this considered a prerequisite to a trial court's concluding the case against a petitioner in a habeas setting was "strong" for purposes of applying the Strickland prejudice component.
The foregoing observations militate strongly against finding that the petitioner has met the prejudice component and when Kyles's habeas testimony is thrown into the mix the conclusion does not change.
It is no doubt true that Kyles's habeas testimony is exculpatory as given and as considered standing along — she explicitly says that the defendant did not know she called Ryder to come to Button Street. She testified she beeped Ryder at her house and never told Griffin she did so. The petitioner argues: "If Ms. Kyles were to have testified, the State's main theory of how Mr. Griffin set the robbery up would have been destroyed." The credibility of Herring and Ryder Brown would have been destroyed. Also the way the relationship between Ryder Brown and Kyles was portrayed necessarily would have increased the exculpatory value of Kyles's testimony if she had testified.
The problem with the testimony that would have been presented by Kyles if she testified is that, whether or not it is internally consistent and by itself is exculpatory in some abstract sense, in light of all the evidence in the case it just does not make any sense.
To adopt her testimony in the way suggested by the petitioner would, according to the petitioner, have in all probability led the jury to conclude Herring planned and perpetrated this robbery on his own. But how could that be? It would mean that planning to rob someone Herring, (1) by sheer coincidence came upon a drug dealer with a fairly large supply of drugs and money, (2) invented a code word to get into the dealer's car and (3) even if he on his own, knew Ryder was a drug dealer with money, he also somehow surmised he was driving a blue Grand AM that night. Also the court has reason to doubt the credibility of Kyles. She had an every other day relationship with Brown so why would she set him up? But she had only known Brown two months at the time of the robbery and had been a friend of Griffin for a substantial period of time even at the time of the robbery on December 13th. She had therefore motives to help Griffin out at the time of her habeas testimony as she would have had, even if to a lesser extent, had she been called at trial.
At the habeas proceeding Kyles testified that Herring threw rocks at her window to ask if she would be home that evening. It is also true that at some time before the Ryder car pulled up in front of her house she heard more than one person outside in the driveway area. If it was close to the time of the robbery and shooting, that would corroborate Herring's story at least to the extent that he claims he was not the only person in the immediate area of the driveway. If it was a more substantial period of time before why would he have left the Griffin apartment — on the odd chance a drug dealer would drive by? And if he had left the apartment, why did he run back in after the robbery? Perhaps more to the point on direct Kyles said when she beeped Ryder she told him she wanted to borrow money. This would give her a reason to call Ryder Brown not tied to any request by Griffin to have her beep Brown to deliver drugs to him. But in a statement to the police, which she admitted was true on cross-examination, she told the police that she did not tell Brown why she wanted him to come to Button Street.
It is true that when Herring used the code phase to enter the Brown car preliminarily to robbing him, Brown could have surmised Griffin gave it to him and why would Griffin run that risk? But Griffin used others to pick up his drugs from Brown and could always have said this individual got the idea to do the robbery on his own; this is a plausible scenario given the fact that teenage drug dealers who had been smoking marijuana and drinking planned this inept robbery. The petitioner's scenario is just not plausible.
Therefore the court concludes the petitioner has not met the prejudice component of the Strickland test and the habeas petition must fail.
(c)
The court will also make some observations concerning the deficient performance component of the Strickland test.
In this case the deficient performance argument is based on the argument that "failure to call at trial or speak with Iesha Kyles was objectively unreasonable and was not sound trial strategy." In a failure to investigate case this can be a difficult issue to analyze and the Fifth Circuit case of Anderson v. Johnson, 338 F.3d 382 (CA. 5, 2003), at least for this court, underlines why. In that case the court affirmed the district's court's granting of habeas relief. The Court of Appeals described the case, which involved the shooting of a woman, as a weak one. The defense lawyer failed to interview an eyewitness who submitted an affidavit in support of the petitioner to the effect that "Roland Anderson was nowhere around the scene of this shooting." Apparently there were some doubts about the credibility of this witness but the court said:
Moreover, in Bryant, we squarely rejected the argument made by the State here — that a failure to interview witnesses is excusable as a strategic decision if the witnesses would not have been credible. Acknowledging that a lack of credibility might support "a strategic decision" not to call a witness to testify at trial, we explained that a witness's character flaws cannot support a failure to investigate. Without so much as contacting a witness, much less speaking with him, counsel is "ill-equipped to assess his credibility or persuasiveness as a witness."
Not surprisingly, other courts have also concluded that the" failure to conduct any pretrial investigation generally constitutes a clear instance of ineffectiveness." Although they remain mindful that "the range of reasonable professional judgments is wide," courts recognize that "[i]neffectiveness is generally clear in the context of a complete failure to investigate because counsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when [he] has not yet obtained the facts on which such a decision could be made." Strickland simply "does not require . . . defer[ence] to decisions that are uninformed by an adequate investigation into the controlling facts and law." Id. p. 392.
The court went on to note that:
Counsel conceded that he relied exclusively on the investigative work of the State and based his own pretrial `investigation' on assumptions divined from a review of the State's files. Given the gravity of the charges, and the fact that there were only two adult eyewitnesses to the crime, it is evident that "a reasonable lawyer would have made some effort to investigate the eyewitness' testimony" "and that trial counsel's representation was deficient." Id. at page 392, also see Bryant v. Scott, 28 F.3d 1411, 1418 (CA. 5, 1994).
Here defense counsel's investigation consisted of driving by the shooting scene and reviewing statements taken by the police from his client, Iesha Kyles, Woodrow Allen, and Herring. He never talked to Kyles and never called her at trial. As in CT Page 2777 Anderson the statements Kyles gave to the police, especially the first one could have been used to impeach her if her habeas testimony had been presented at trial. But as Anderson notes this standing alone would not justify a complete failure to interview the woman who was accessible to counsel at the time of trial.
The court can think of no justifiable reason for counsel not to have interviewed Kyles. But that being said, the posture of the issue presented by this case is the failure to interview her and call her as a witness at trial. This compound observation is to the point because the second statement of Kyles basically parallels the alleged exculpatory version of events brought out at the habeas proceeding — Kyles said Griffin, Herring and "Biz" did not know she had beeped Ryder Brown to come over to Button Street.
However, the court is reluctant to reach the legal conclusion that under the case law failure to interview and call Kyles meets the deficient performance component of Strickland given the facts of this case. In other words we do not have the simple failure to interview an exculpatory eyewitness to a crime as it was occurring which was the situation in Anderson. Here calling this particular witness may have led to the State presenting evidence which would have been devastatingly harmful to the petitioner. This is so because of a statement given the police by Woodrow Allen. The strategy available to the defendant in this case was to try to undermine the testimony of Herring by showing that he had a powerful motive to implicate Griffin to save his own future. He was a teenager at the time of these matters, he had confessed to a murder, assault first and a robbery, he faced one hundred years yet the offer made to him was a sentence of thirty years and possibly twenty-five years, if he testified truthfully at the trial against Griffin. The specter of Allen's testimony would have compromised that strategy.
If Kyles had been called as a witness by the petitioner, the State would have had strong reason and may have felt some compulsion to call Allen as a witness whether or not defense counsel interviewed him. Kyles lived in Allen's house at 53 Button Street. His statement indicates that at the time it was given in December 1995 he was a reputable individual who had lived at 53 Button Street for some twelve years. He was the Block Watch Captain for his street. He was employed by Amrail at Union Station in New Haven.
Kyles in her statements and habeas testimony was somewhat vague about the times in relation to the shooting at which she heard a commotion outside 53 Button Sweet or when she saw Herring outside a window of 53 Button Street after he threw a rock at it to gain her attention — this was an hour before the shooting according to the second Kyles statement.
Woodrow Allen said the following in his statement to the police one day after the crime regarding a disturbance outside 53 Button Street where he and Kyles lived:
Q. Alright and when you looked out you heard the argument and was anyone arguing from any other place aside from the car?
A. No, couldn't see nobody well somebody was talking back to him, I couldn't tell whether it was coming out of the house or from the side of the house or from the hallway.
Q. And all you heard was again, what did you hear?
A. Well I heard somebody using the terms you know like mother fucker, so and so, what the fuck you talking about man and shit like that you know and um I just walked away because you hear it all the time you know it's well you know later for it and I went back in the house.
Q. And then uh did Iesha come down at any point?
A. No, she didn't come down then. When Iesha came downstairs the same I jumped up when we start hearing gunshots.
Q. Do you recall how many gunshots you heard, sir?
A. I heard, I thought I heard about four, it could have been more but I know I heard four anyway.
Q. Alright you heard four gunshots and then Iesha came down from upstairs.
A. Yeah, she came running downstairs 'cause she was scared, she didn't know whether somebody shootin' at the house or something you know.
Q. And what did she tell you when she heard the gunshots?
A. She said what's going on did you hear that, I said yeah I heard it and she was looking out the window and then uh she went back in toward the bathroom and she came back and she said somebody's out beside the house.
Q. And which side of the house would this be?
A. This would be coming from my bathroom it would be on the left side in my driveway and I asked her I said who is it, she said I don't know. I said go look and she didn't want to go so she run and she peeked out there and she said it looks like L.J.
Q. Did she say L.J.?
A. Uh yeah.
Q. Or did she say another name sir?
A. She said at first she said L.J. I think it's the way she said it.
Q. Do you know?
A. I said um well look and see and when she went back and looked then the person who it was came out of the driveway like I said on the diagram here they came out and went right around and across and then came back up this way over here by uh 50 and the house on the left of 50 which is like a driveway between two houses.
"L.J." from the remainder of Allen's statement and the trial testimony is uncontrovertibly the street name of the petitioner. Also the last answer of Allen corroborates Herring's testimony of where Griffin emerged from after the shooting when Ryder Brown pulled off from Button Street.
As indicated the State on rebuttal would have had good reason to call Allen to rebut any notion suggested by Kyles, that at some time before the shooting, men she could not identify were outside the window of the house she was staying at or that Herring was but he was alone. Even if Allen had taken the stand and repudiated the statement he gave to the police, that statement could have been used to impeach him in front of the jury and the mere impeachment would have had dire consequences for Griffin despite any cautionary instructions.
There is no indication that Allen was available at the time of trial but why on earth would defense counsel run the risk of the State going out and look for him if he had called Kyles.
For these reasons the court is somewhat reluctant to find deficient performance but in any event for the reasons previously discussed concludes the prejudice component has not been established by the petitioner. Therefore the petitioner has not established his right to habeas relief because of the ineffective assistance of counsel.
IV.
On the petitioner's claim of actual innocence and applying the standard set forth in Miller v. Commissioner of Corrections, 242 Conn. 745, 794, 795 (1997), also see Player v. Commissioner of Correction, 73 Conn.App. 556, 559 (2002). The court would refer to its earlier discussion on the prejudice component of the Strickland test. Given that discussion the court could obviously not find that actual innocence had been established by clear and convincing evidence or that no reasonable fact finder could find the petitioner guilty.
In reaching this decision the court has not relied upon the statement of Woodrow Allen, James Griffin, and only has relied upon those references to prior statements made during Kyles's testimony.
Corradino, J.