Opinion
No. CV 05 4000655 S
October 3, 2008
MEMORANDUM OF DECISION
The petitioner, Lucis Richardson, filed this petition for a writ of habeas corpus on August 25, 2005, challenging the legality of his confinement. He was arrested on February 29, 1996 and charged with felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134(a)(3), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134(a)(3) and § 53a-49(a)(2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134(a)(3) and § 53a-48(a). After a jury trial, the petitioner was acquitted on count two for robbery and found guilty on counts three and four, attempt and conspiracy to commit robbery, respectively. The jury did not reach a verdict on the first count of felony murder, and the court declared a mistrial as to that count. The petitioner was sentenced on March 2, 1999 to twenty years incarceration on count three and seventeen years incarceration on count four, to be served consecutively for a total effective sentence of 37 years incarceration. The petitioner appealed his convictions to the Appellate Court, which affirmed the convictions. See State v. Richardson, 66 Conn.App. 724, 785 A.2d 1209 (2001).
See Docket No. CR 96 0485220.
The petitioner was retried on the felony murder count several years later and found guilty by a jury on October 4, 2002. He was sentenced to fifty years incarceration, to be served concurrently with his previously imposed sentences. The petitioner appealed this conviction, which was upheld by the Appellate Court. See State v. Richardson, 86 Conn.App. 32, 860 A.2d 272 (2004), cert. denied, 273 Conn. 907, 868 A.2d 748, cert. denied, 545 U.S. 1107, 125 S. Ct. 2550, 162 L.Ed.2d 281 (2005).
In the present matter, the petitioner alleges, in a two-count second amended petition filed December 1, 2006, that his trial counsel, attorney Kevin Randolph, was ineffective in (1) failing to have the petitioner evaluated by a psychiatrist to determine his mental state prior to a hearing on a motion to suppress statements made by him to police, (2) failing to acquire the petitioner's school records, which would have revealed the petitioner's learning disability that rendered him unable to understand the statement he signed, and (3) failing to hire a private investigator to investigate the case and interview state's witnesses in order to determine their motivation for testifying against the petitioner.
The matter came before the court for a trial on the merits on June 10, 2008, at which time the petitioner orally withdrew count two, regarding the failure to hire an investigator. Testifying at the habeas trial were Janet Washo, a teacher employed by the Department of Corrections, Christine Murphy, director of special education for the Department of Corrections, and the honorable Kevin Randolph, petitioner's trial counsel. The parties submitted various exhibits including a transcript of the hearing on the motion to suppress in the underlying criminal trial the petitioner's school records, a psychological evaluation of the petitioner, transcripts of the underlying trial, and the petitioner's signed statements to the police.
Attorney Randolph was appointed as a Judge of the Superior Court since the time of the petitioner's criminal trial.
FINDINGS OF FACTS
The underlying facts are taken from the Appellate Court's decision in State v. Richardson, supra, 66 Conn.App. 724. "The jury reasonably could have found the following facts. Colin Williams, a Hartford taxicab driver, was stabbed on Martin Street in the early morning hours of February 24, 1996. On the prior evening of February 23, the defendant, along with Danixsa Sanchez, Robin Ledbetter and Phillip Milling were together at the apartment of the defendant's aunt, which also is on Martin Street in Hartford, when the defendant asked Ledbetter `if she was down' to rob a taxicab driver that night. She replied, `[Y]eah.' The defendant and Ledbetter wanted to rob a taxicab driver who had been working for a while after the shift change because he would then have more fares. Ledbetter, after calling the taxicab company to find out when the shift changed, waited until 1:30 a.m. and then called for a taxicab, giving the defendant's telephone number as the callback number. Ledbetter armed herself with a ten inch knife, which she secured in her pants leg with the aid of a bandanna. The defendant armed himself with a drill that he told Sanchez looked like a gun and that he would use to put to the driver's head when demanding money.
"At about 2 a.m., while the defendant and Ledbetter went outside to wait for the taxicab, Michael Grate, a gymnasium assistant at Quirk Middle School walked by them. Recognizing the defendant as a former student, Grate asked the defendant what he was doing out so late and warned him to stay out of trouble. When the taxicab arrived, Ledbetter and the defendant entered the vehicle. The defendant then put the drill to the driver's head while demanding money. When the driver grabbed Ledbetter, she stabbed the driver with the long knife. The defendant and Ledbetter then returned to the apartment. The victim was found shortly after 2 a.m. by the police. He was transported by ambulance to Saint Francis Hospital and Medical Center, where he died about one and one-half hours later.
"At about 5 a.m., Hartford police officers interviewed the defendant at his home after tracking down the location of the callback number to the Martin Street apartment, where the defendant lived. The defendant told the police that he knew nothing about the murder but that two others, whom he identified as `the Joker' and `Robin' Ledbetter, had been visiting at his apartment just a few hours earlier. The police then left.
"Later that afternoon, at about 4:30 p.m., three officers returned to the defendant's apartment. They asked the defendant, in the presence of his aunt, if he would be willing to come with them to the police station to provide them with more information about the people he had earlier identified as Joker and Robin, and with any other information he might have about the robbery and murder of the taxicab driver. The police assured the defendant that he was not a suspect, but merely a witness . . .
"While he was at the station, the defendant looked at an array of photographs and, in further interviews there, gave the police an oral statement implicating Ledbetter and Joker, who later was identified as Milling, as the persons who had attempted to rob the taxicab driver. He also indicated that along with Ledbetter and Milling, his girlfriend, Sanchez, also was present at his home that night. The defendant provided the police with Sanchez' telephone number. The police called Sanchez, then went to pick her up and drive her to the station for questioning about the events of the previous evening. At some point during that evening, the defendant's statement implicating Ledbetter and Milling was reduced to writing by the officers and signed by the defendant. Sanchez also gave a statement implicating Ledbetter and Milling. In contrast, Sanchez admitted at trial that it was the defendant and Ledbetter who had attempted to rob the taxicab driver . . .
"Ultimately, on February 26, the police interviewed Ledbetter, who not only confessed to commission of the crimes, but told the police that it was the defendant who had committed the crimes with her and not Milling, whom the defendant wrongfully had accused.
"On February 29, the defendant waived his Miranda rights and gave a fully voluntary statement to the police, in which he confessed to his involvement in the crime, describing how he and Ledbetter wanted money, and how he had used the drill by putting it behind the driver's head and then using it to hit him. He then detailed how Ledbetter stabbed the driver.
"Prior to trial, the defendant filed a motion to suppress all oral and written statements he had allegedly made to the police, together with any fruits thereof. At a pretrial suppression hearing, the court denied the motion. In its oral memorandum of decision, the court made only limited factual findings and, although the court did not explicitly conclude that the defendant was not in custody at the time that he made the statements, that determination is implicit in light of the fact that the court denied his motion to suppress. At trial, the state introduced both the defendant's February 24 and February 29 statements, and the testimony of Sanchez and Milling as part of its case-in-chief." State v. Robinson, supra, 66 Conn.App. 727-30.
At the habeas trial, the petitioner presented the testimony of education professionals employed by the department of correction, Washo and Murphy. Both testified that the petitioner has problems with understanding and processing information related verbally. Washo testified that the petitioner was, as of 2002, reading at a sixth grade level. Murphy discussed the petitioner's exhibit 2, a psychological evaluation from 1992, and explained the information processing problems the petitioner had. The petitioner had last attended public school in 1994, at which time his verbal and vocabulary skills were at a second grade level. Murphy also testified that the petitioner's auditory processing deficiencies might have made it difficult for him to understand the officers' advisements and instructions when the petitioner waived his Miranda rights, and that his comprehension would have been affected by the rate at which the instructions were spoken and the external environment of the room.
Judge Randolph testified that he had sought to suppress the petitioner's February 24 statement on the basis that he was in custody at the time but had not been advised of his Miranda rights, and the February 29 statement on the basis that the petitioner had not properly been advised of his Miranda rights. While he did not expressly advance the argument that the petitioner's young age, lack of sophistication and lack of intelligence rendered his waiver not knowing, intelligent and voluntary, both the prosecution and the court discussed this issue on the record.
The transcript of the hearing on the motion to suppress held October 27, 1998 indicates that various officers involved in the questioning of the petitioner testified, including Officers Steven Grabowski, Stephen Looby, Robert Dionne, and a paralegal with the state's attorney's office, Barbara Struzenski. Their testimony was largely consistent and attests that, on February 29, 1996, several officers executed an arrest warrant while the petitioner was at the Hartford Superior Court on other charges, and interviewed the petitioner in a basement room of the court. Struzenski testified that she was taking notes on a laptop as Dionne and Grabowski asked the petitioner questions, and that the petitioner appeared calm and compliant and indicated that he wanted to tell the truth. She also testified that she would frequently read back the petitioner's statement aloud to ensure that it was correct. (Exh. 1, pp. 63, 84-86.)
At the same hearing, the petitioner contrarily testified that, on February 29, the officers did not read or explain his rights to him and simply told him to "sign some papers." He denied having given a statement and claimed that he merely signed some papers. (Exh. 1, pp. 91-100.) The court, McMahon, J., reasoning that the conduct of the police officers was reasonable and that the petitioner's testimony was "totally incredible," denied the motion to suppress both statements.
Additional facts will be discussed as necessary.
DISCUSSION
"A criminal defendant'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 . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008).
"The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within of reasonable assistance . . .
"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 factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365 (2008).
The petitioner's sole claims are that his trial counsel was ineffective in failing to have the petitioner evaluated by a psychologist to determine his mental state prior to the motion to suppress, and failing to obtain the petitioner's school records which would have shown that the petitioner was suffering from a learning disability that rendered him incapable of reading at a sixteen-year-old level, resulting in his inability to understand what was contained in the statement he gave to the police.
"Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant's experience with the police and familiarity with the warnings . . . his level of intelligence, including his IQ . . . his age . . . his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation." (Internal quotation marks omitted.) State v. Linarte, 107 Conn.App. 93, 99-100, 944 A.2d 369 (2008). "[I]n most circumstances, the level of competency required to waive a constitutional right is the same competency required to stand trial." State v. Ross, 273 Conn. 684, 715, 873 A.2d 181 (2005) (Dranginis, J., concurring), citing Godinez v. Moran, 509 U.S. 389, 398, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). In the present case, the petitioner underwent a full psychological evaluation regarding his competency to stand trial and was found to be able to understand the proceedings against him. (Exh. F.) This evaluation occurred just under nine months after the date of his confession. There is no indication that the petitioner's mental state or competency changed in any respect from February 1996 to November 1996. Therefore, a psychological evaluation of the petitioner would have been of no benefit at his suppression hearing because there existed a psychological evaluation attesting that the petitioner was mentally competent to stand trial and, therefore, was mentally competent to waive other constitutional rights such as the right to remain silent.
"To be valid, a waiver must be voluntary, knowing and intelligent . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case." (Citation omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 50, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). "[A]n express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case . . . [and] in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated." (Internal quotation marks omitted.) State v. Stephenson, 99 Conn.App. 591, 600, 915 A.2d 327, cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007).
In the present case, there are express written waivers signed and initialed by the petitioner that support the validity of the waiver. While the petitioner now claims he did not understand the contents of the statement and could not intelligently have waived his Miranda rights, the trial court considered his "lack of intelligence" and "lack of sophistication" in denying the motion to suppress. The only question before this court, therefore, is whether the school records and testimonial evidence submitted in this habeas trial would have convinced the criminal trial court otherwise.
It is clear from this evidence that the petitioner has some learning disabilities and difficulty with written and auditory comprehension. Nevertheless, the testimony and evidence presented is insufficient to convince this court that trial counsel was ineffective in failing to present this evidence at the hearing on the motion to suppress, as it does not unequivocally indicate that the petitioner was unable to understand his rights as explained to him by the officers who took his statement. "The overall intelligence quotient of one making a voluntary confession is one factor to be considered, but it is not in and of itself, determinative . . . [T]he fact that [a] defendant was somewhat deficient in mental ability, had a psychiatric disorder, and was upset emotionally, [does not] necessarily render his statements inadmissible." (Citations omitted; internal quotation marks omitted.) State v. Madera, 210 Conn. 22, 43-44, 554 A.2d 263 (1989). Moreover, although the present petitioner claims he was unable to read the statements, "while [illiteracy] is a factor to be considered, there is no requirement that a person be literate before his confession may be received into evidence." Id., 44.
Janet Washo and Christine Murphy testified in explanation of the school records and petitioner's diminished cognitive capabilities at the habeas trial, but neither conclusively testified that the petitioner would not have been able to understand his rights at the time he gave the February 29 statement. The police officers testifying at the suppression hearing uniformly stated that they verbally went over the petitioner's rights with him, and that the typist recording his statement would read back portions of the statement to the petitioner as she was taking it down to ensure it was correct. The trial court concluded that the waiver was knowing, intelligent and voluntary after a full suppression hearing, and the evidence presented here is insufficient to convince this court otherwise. In short, the petitioner has failed to demonstrate that his counsel's conduct in not subpoenaing the petitioner's school records or having him evaluated by a psychologist was unreasonable because there is no indication that such conduct would have been prudent or beneficial to the petitioner. Cf. State v. Linarte, supra, 107 Conn.App. 93 (defendant knowingly waived right to remain silent and right against self-incrimination despite having very low IQ and "a congenital and severe impairment in [l]anguage [p]rocessing"). Therefore, he has failed to establish deficient performance.
Additionally, even if counsel's performance had been deficient, the petitioner has failed to establish that he was prejudiced thereby. Assuming arguendo that the motion to suppress had been successful, there was ample evidence to convict the petitioner even absent his statements attesting to his participation in the robbery of the cab driver. The call to the taxicab company had been made from the petitioner's apartment and at the petitioner's instruction. Robin Ledbetter testified that the petitioner was involved in the attempted robbery with her, and Danixsa Sanchez and Phillip Milling testified to actions and statements by the petitioner before and after the robbery strongly corroborating his participation. Michael Grate identified the petitioner as being at the location of the taxicab pickup immediately before the crime occurred. Given this compelling evidence, all of which was presented at trial, there is not a "reasonable probability that . . . the result of the proceeding would have been different"; Andrades v. Commissioner of Correction, supra, 108 Conn.App. 512; had the petitioner's statement successfully been suppressed. Thus, the petitioner has failed to establish both deficient performance and prejudice resulting from trial counsel's actions.
CONCLUSION
Having failed to establish that he received ineffective assistance of counsel, the petitioner's petition for a writ of habeas corpus is hereby DENIED. The petitioner shall submit a judgment file to the court within thirty days.