Opinion
No. CV01 081 05 89
August 25, 2005
MEMORANDUM OF DECISION
The petitioner, Kenneth Lambert, alleges in his petition for a Writ of Habeas Corpus, filed originally on August 23, 2001 and amended on July 30, 2004, that he was denied the effective assistance of counsel and his rights to due process of law. Specifically he claims that his conviction in the Judicial District of Hartford under Docket Number CR-96-0088756, for criminal attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49(a)(2) and assault in the first degree in violation of General Statutes §§ 53a-59 and 53-202k, violated his Federal and State Constitutional rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 8 and 9 of the Connecticut Constitution. Consequently, the petitioner demands that his convictions be vacated and the matter remanded to the trial court for further proceedings.
This matter came on for trial before this Court on May 4, 2005 at which time testimony was received from: his trial counsel, Attorney William Gerace, Robert O'Brien, Miriam Heslop, Deborah Marqnardt, and Attorney John Watson. The court also reviewed 51 exhibits entered into the record and, by agreement of the parties, took judicial notice of State v. Lambert, 58 Conn.App. 349 (2000). As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition is denied.
Having reviewed all of the testimony and evidence, this Court makes the following findings of fact:
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Hartford under Docket Number CR-96-0088756, when he was convicted for criminal attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49(a)(2) and assault in the first degree in violation of CT Page 11738-hm General Statutes §§ 53a-59 and 53-202k.
2. On or about August 6, 1996, the petitioner was represented by Attorney William Gerace, who continued his representation of Mr. Lambert through to trial, conviction and sentencing.
3. The underlying facts of this case show that "At the time of the crimes, the defendant and the victim, a seventeen-year-old woman, were neighbors in the same apartment building in Hartford. Both were drug users and engaged in the sale of drugs.
4. "On June 21, 1996, the victim asked the defendant if he would sell some crack cocaine for her and the defendant agreed. The following day, June 22, 1996, between 11 p.m. and 11:30 p.m., the defendant asked the victim if she would go with him to Windsor while he picked up the money he owed her and more drugs. She consented and they left in a blue Dodge Neon parked beside the apartment building.
5. "After driving for ten to fifteen minutes, the defendant stopped the car at a remote area in north Bloomfield and got out. The defendant walked to the victim's side of the car, opened the door, grabbed her by her arm and pulled her out. He then went back into the car and reached under the front seat. When the defendant got out, the victim noticed that he was holding a gun.
6. "The defendant told the victim to run, but before she could move he began firing the gun at her. Two shots struck her in the abdomen. As the victim turned and started to run, the defendant continued shooting at her until she collapsed to the ground. The victim asked the defendant to take her to a hospital, but the defendant refused, and instead kicked her and jumped on her. Sometime before midnight, the defendant departed.
7. "The victim, wounded by five gunshots, remained in the area for the next thirty hours until she was discovered on the morning of June 24, 1996, and taken to a hospital. There, she underwent surgery and recuperated for two and one-half months. The incident left her with permanent injuries in several parts of her body.
8. "The day after the victim was discovered, the police found the blue Dodge Neon parked in front of the defendant's apartment building. Subsequent testing revealed gunpowder residue on the exterior of the passenger side of the vehicle. The victim later identified the defendant from a photographic array as being her assailant." State v. Lambert, 58 Conn.App. 349, 351-52 (2000). CT Page 11738-hn
9. After a trial to the jury and his conviction for criminal attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49(a)(2) and assault in the first degree in violation of General Statutes §§ 53a-59 and 53-202k., the petitioner was sentenced on March 17, 1998 to a total effective sentence of thirty-two years to serve and is currently in the custody of the Commissioner of Correction.
10. Additional facts shall be discussed as necessary.
Discussion
The standard which the court must apply to the petitioner's claims of ineffective assistance of counsel is well-established. "A petitioner's right to the effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, § 8, of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel . . . The right to counsel however, is the right to effective assistance and not the right to perfect representation.
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, cert. denied, 268 Conn. 907, cert. denied sub nom., Toccaline v. Lantz, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
"To establish the first prong of the Strickland test, the petitioner must first establish that his attorney's performance was `not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . .' The court must be mindful that `[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged CT Page 11738-ho action might be considered sound trial strategy.' Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 798-99.
"Turning to the prejudice component of the Strickland test, `[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt' . . . A court `hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury . . . [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.' Strickland v. Washington, supra, 466 U.S. 695-96" (Internal citations omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 854-56 (2005).
"A court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim . . . In this context, a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome." (Internal citations and quotation marks omitted.) Nieves v. Commissioner of Correction, 51 Conn.App. 615, 620, cert. denied, 248 Conn. 905 (1999).
It is inappropriate for a habeas court to examine the performance of a trial defense counsel and put it under microscopic scrutiny. "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 CT Page 11738-hp 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, supra, 466 U.S. 688.
In his amended petition, the petitioner's first count consists of 97 numbered paragraphs in support of his ineffective assistance claim. In over 20 paragraphs of count one, the petitioner essentially focuses on trial counsel's alleged failures with respect to medical, forensic and physical evidence that was produced at trial. The petitioner, in a multitude of ways, assails trial counsel's alleged failure to discover and review medical and forensic records in a timely manner, to cross-examine adequately witnesses relevant to medical, forensic and physical evidence, and to object to the admissibility of medical reports.
With respect to the medical testimony, the petitioner has failed to show that these alleged failures were in any way manifested in trial counsel's performance during trial. As Attorney Gerace noted both during the habeas trial and at the criminal trial, the gravity and seriousness of the victim's wounds were beyond dispute. When the state's attorney initially considered introducing medical records of nearly 1000 pages, the court (Barry, J.) noted with approbation Attorney Gerace's comment, "May I suggest that this case is not going to turn on whether those injuries are serious." As such, apparently only a few medical reports were made full exhibits and the petitioner has made no attempt in this court to establish any reasonable basis for objecting to their admission.
Notwithstanding the plethora of allegations, the petitioner's main criticism lies in the allegations that trial counsel failed to procure a defense expert medical witness. Through Attorney John Watson, the petitioner claims that such an expert was necessary to challenge the state's medical witnesses, who testified that it was possible for the victim's wounds to have been inflicted on Saturday, June 22, 1996 which was the state's claim. Attorney Gerace focused on cultivating some reasonable doubt that the victim was in fact assaulted on Saturday night, since the petitioner had no alibi for that evening, but rather that she was likely assaulted on Sunday, June 23, 1996, when the petitioner had an alibi.
The petitioner, however, does not dispute the fact that trial counsel thoroughly cross-examined the state's medical witnesses on the issue of the range of time when the wounds were inflicted. Attorney Gerace reinforced Dr. Barba's testimony that the only definitive evidence regarding the time of the assault was that the wounds were inflicted at CT Page 11738-hq least 12 hours before she was found on Monday morning, June 24, 1996, that her wounds were life-threatening and that she could die at any moment. Although the state was able to elicit testimony from the doctor that it was possible for the wounds to have been inflicted on Saturday night, due to the victim's youth and the fact that no major blood vessels were damaged, a jury could reasonably question the state's evidence regarding the time of the assault based on Attorney Gerace's overall defense. For example, trial counsel thoroughly cross-examined the victim, challenging her recollection of the timeframe of events, exploiting her testimony that she stated to a relative that she might be shot by a member of the Latin Kings, as well as her prior conflicting statements regarding the timing of the assault. In closing argument, trial counsel also appealed to the jury's common sense given that the victim sustained multiple gunshot wounds which shattered her elbow and hip, and had bullet holes in her bladder, rectum and bowels. Attorney Gerace also underscored the fact that one of the state's witnesses, Sargeant Beardsley, did not believe the victim's account of the timing of her injuries, based on the officer's experience as an EMT, his discussions with the emergency room doctor and his discussion with a building superintendent where the victim lived. Given all of the above, this court cannot find that this defense strategy was below the standard of reasonable competence expected of a criminal trial attorney.
Moreover, the petitioner roundly criticizes trial defense counsel for his failure to produce a defense medical expert. Yet this court notes that no such medical expert was produced by the petitioner in this habeas proceeding. As such, even if, arguendo, Attorney Gerace's performance was deficient, but this court cannot find that there is any prejudice to the petitioner in his failure to produce an expert at trial.
With respect to the forensic testimony, the petitioner produced Robert O'Brien, from the State Police Forensic Science Laboratory, who testified at the criminal trial as well as at the habeas trial. Mr. O'Brien testified, in part, to the results of forensic testing done on the car, leased by Miriam Heslop and used by Kenneth Lambert, which the victim stated was similar to the one which transported her to Bloomfield, where she was assaulted. In both cases, Mr. O'Brien testified that the presence on the passenger side of the car of the following three elements, barium, lead and antimony, was consistent with gunshot residue. The testimony the petitioner elicited through direct examination in this habeas proceeding, however, was no more effective in diluting the significance of this objective evidence than was the testimony elicited by Attorney Gerace. Attorney Gerace, an experienced criminal trial attorney, conducted cross-examination by highlighting the fact that the various elements can be found in other materials, and attempted to CT Page 11738-hr suggest that there might be chain of custody problems with the securing of the car for testing. But in the end, neither Attorney Gerace nor the petitioner in the habeas trial, was empowered to undermine this key piece of objective evidence. At the criminal trial and in the habeas trial, the credible evidence established that the car implicated by the victim and in the ostensible care and control of the petitioner and his girlfriend over the weekend of the assault, manifested gunshot residue consistent with the victim's account of the incident. The petitioner was unable to show that there was some other source for all three elements, including antimony, the rarest of the three, which would otherwise explain away this link between the petitioner and the victim. In combination with the victim's positive identification of the petitioner, this kind of objective evidence is extraordinarily difficult to overcome.
Attorney Gerace also credibly testified that he had no incentive to push for forensic reports because in his experience, negative test results are neutral and not exculpatory in their effect on the evidence while positive results could be very damaging and problematic. Moreover, he believed that insisting on a continuance under these circumstances or for any other purpose would only allow the state more time to prepare. Having practiced criminal defense work for over 25 years and having tried as many as 100 jury trials, Attorney Gerace was aware of the fact that prosecutors labor over heavy case loads and that their preparation time is inherently limited. In general, he viewed giving more preparation time to the state as almost per se problematic to the defense.
In this case in particular, Attorney Gerace was concerned that with more time, the state would realize and exploit the fact that the petitioner, although a resident of Hartford, was born and grew up in a house on 10 Old Windsor Rd. in Bloomfield, CT. This residence, where the petitioner's mother continues to reside, where Mr. Lambert continued to receive mail and was, in fact, arrested on June 25, 1996, was in relatively close proximity to where the victim was found. The court notes that there was a good deal of quibbling at the habeas proceeding as to whether the area where the victim was found, which was near a building on the edge of an industrial park on Belden Road, was contiguous with the area behind 10 Old Windsor Rd. As such, the petitioner introduced a Mapquest, internet-produced map of the relative distance between 10 Old Windsor Rd and Belden Rd. Yet, the reliability of the map notwithstanding, there appears to be good basis for Attorney Gerace's concern regarding the potentially damaging effect of the state realizing and exploiting the proximity of the two locations. From a birds' eye perspective, the mapquest diagram suggests that the distance between the two areas is less than a half-mile. The distance between the two locations, via travel by roads, is clearly longer but that fact does not CT Page 11738-hs diminish the significance of the victim being found in a remote area, which is also conceivably familiar to the petitioner. In any event, irrespective of the actual distance, this court certainly appreciates the implications of this potential evidence and Attorney Gerace's concerns were therefore well-founded.
As such, this court cannot find that trial counsel's failure to seek a continuance for the late production of forensic tests amounts to deficient performance, nor can it find that trial counsel's performance at trial manifested a lack of preparation or appropriate investigation of the petitioner's case. On the contrary, the court, having thoroughly reviewed the trial transcripts and listened carefully to the testimony at the habeas trial, finds that trial counsel was well prepared and thoroughly investigated the case. At one point, the state's attorney had claimed surprise over evidence which Attorney Gerace noted he had discovered in a review of the state's file. In sum, the petitioner cannot establish, in a fair review of trial counsel's overall performance, that Attorney Gerace's investigation, preparation and performance at trial was below the standard of reasonable competence.
The petitioner also criticizes trial counsel's failure to produce Americo Santiago as a witness, who evidently indicated to the police that she saw the victim at her apartment on Sunday, June 23, 1996. Attorney Gerace, however, credibly testified that Ms. Santiago, when questioned by his investigator, was apparently equivocating and was now uncertain about whether she saw the victim that day. As such, he made the decision not to call Ms. Santiago as his witness at trial. This court is well aware that the decision to call witnesses and to assess the impact of their testimony can be a difficult judgment call for an attorney. Indeed, there is hardly an experienced trial attorney who having prepared for trial and spoken to a witness, then produces that witness who testifies in a way completely opposite to what trial counsel anticipated. Here, Attorney Gerace's investigation indicated that he was prepared for the likelihood that Ms. Santiago's testimony might be unhelpful, or even worse, damaging by her equivocation on a central issue. He had good reason to avoid offering her as a witness and exploited the fact that the substance of her statement came out, at least initially, with no limitation. Moreover, Attorney Gerace was also able to underscore Sgt. Beardley's own doubts with respect to the timing of the assault, such that the officer represented that the assault occurred on Sunday, June 23, 1996 in his search and seizure application to the court. As such, this court simply cannot find that Attorney Gerace's decision here, as well as his overall strategy in undermining the victim's assertion regarding the date and timing of the assault, amounted to deficient performance. Notably, the petitioner too has failed to produce Ms. Santiago, whose testimony he CT Page 11738-ht claims was pivotal. As such, even if the failure to produce Ms. Santiago was, arguendo, deficient performance, the petitioner has failed to establish that he was prejudiced by trial counsel's decision here.
The petitioner also presented testimony from Miriam Heslop regarding her version of the events of Saturday evening. His apparent claim is that trial counsel failed adequately to prepare Ms. Heslop for alibi testimony relating to Saturday, June 22, 1996. The credible evidence, however, is that Attorney Gerace had already asked the petitioner as to whether he had an alibi for that evening and in response, the petitioner offered none. Moreover, in the arrest warrant application prepared by Sgt. Beardsley, Ms. Heslop had evidently reported to investigators that Kenneth Lambert had used her car over the preceding weekend and that she could not articulate when the petitioner was using the car and where he had gone with it. In contrast, at trial 18 months after the incident, and then at the habeas proceeding which was nine years after the incident, Ms. Heslop recounted with a great deal of detail what she and the petitioner were doing for the entire weekend, and specifically, where the car was at various times. At the criminal trial, she testified that she had let the petitioner use her car on Sunday and that they went out after 11:00 p.m. until 3:00 a.m. She also testified that on Saturday, she had had the car parked where she worked on Saturday from 3:00 p.m. to 11:00 p.m., whereupon she testified that she returned home to the petitioner. At the habeas trial, she testified to additional facts, specifically that she stayed for an hour with the petitioner who was at her home with her sister, Khadijah, following her return from work Saturday night. Subsequently, she went out in the early morning hours with her friend, Regina Greene, until after 3:00 a.m. whereupon she returned home to the petitioner. Moreover, she testified that she had her car the entire day on Saturday and through to the early Sunday morning hours when she was with Ms. Greene. The court, however, does not credit Ms. Heslop's testimony. given her relationship to the petitioner. Even more significantly, the petitioner himself never proffered this account or anything like it when Attorney Gerace, in his letter dated December 24, 1997, specifically asked him for an alibi for Saturday, June 22, 1996. It defies common sense that the petitioner, if he had had the above alibi available, would have failed to ensure that Attorney Gerace was informed of it. There is no credible evidence that the petitioner had been unable to communicate with Attorney Gerace about the availability of Ms. Heslop as an alibi witness for the events on Saturday, June 22, 1996, or indeed, the availability of Ms Heslop's sister, Khadijah, as a corroborating witness, or Ms. Heslop's friend, Regina Green, from whom this court also did not hear testimony. As such, this court views Ms. Heslop's testimony with skepticism and finds that Attorney Gerace reasonably relied on the petitioner's representation that he had no alibi. CT Page 11738-hu
In machine gun fashion, the petitioner has made numerous other allegations incorporated in the 97 paragraphs of his first count, in addition to the ones addressed in the court's discussion above. With respect to those allegations, as well as those allegations in Count 2 and Count 3, the petitioner has made no serious attempt to establish any of those allegations by way of evidence or legal authority. Moreover, this court notes that the jury heard from a victim, who not only knew the petitioner before the incident but could positively identify him. She could describe and identify the car to which he had access as one which was used to transport her to Bloomfield where she was shot multiple times. The jury and this court also heard testimony relating to the gunshot residue found on the identified car, which powerfully corroborates the victim's testimony. Nothing presented by the petitioner in this habeas proceeding undermines this court's confidence in the outcome of the petitioner's criminal case.
Given all of the above, the petitioner has failed to meet his burden under the Strickland standard of showing ineffective assistance of trial defense counsel and his petition must be denied. Accordingly, the Petition for a Writ of Habeas Corpus is denied.
N. Elgo, Judge CT Page 11738-hv