Opinion
No. CV00 043 85 95
December 5, 2003
MEMORANDUM OF DECISION
The petitioner ("Smith") filed his amended petition for a writ of habeas corpus through special public defender Richard C. Marquette, Esquire of Hamden, Connecticut on February 5, 2003 (pleading #108). Smith was found guilty by O'Keefe, J. of the crimes of robbery in the first degree (General Statutes § 53a-134), assault of a victim sixty or older in the first degree (General Statutes § 53a-59a) and assault of a victim sixty or older in the second degree in violation of General Statutes § 53a-60b. O'Keefe sentenced Smith to an effective sentence of 20 years. Smith was represented by attorney Beth Merkin (assistant public defender).
Smith appealed the conviction on the grounds that there was insufficient evidence in the record to support the court's conviction, in violation of his right to due process under the federal constitution and article first, § 8 of our state constitution. Smith argued on appeal that the state failed to present sufficient evidence to prove his identity as the person who committed the crimes. He also contended that the evidence was insufficient to sustain his conviction of assault in the first degree of a victim sixty or older because the state did not prove that he acted recklessly or that he evinced an extreme indifference to human life. (See 57 Conn. App. 290, 295, 296).
The appellate court upheld the conviction.
Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. CT Page 13415
In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.
Id. at 296 (citations omitted, internal quotation marks omitted).
The habeas petition focused on ineffective assistance of counsel in that Merkin failed to introduce among other things favorable evidence of innocence even though such evidence existed and was easy to access; in that she failed to adequately defend against the state's case by using police documents that indicate that Smith could not have been the perpetrator; failed to obtain sufficient familiarity with the case and to conduct a proper pretrial investigation and failed to attempt to retrieve a Police Data Sheet that would have given credibility to the defense at trial. (Prosecutorial misconduct.)
Our appellate court stated the following factual background of the trial:
On December 9, 1996, at approximately 5:30 p.m., the victim Jean Deich, an eighty-four year old woman, was to have attended a Christmas party at a restaurant on Blake Street in New Haven. Deich weighed 105 pounds and stood four feet, eleven inches tall. As she exited a vehicle at the sidewalk in front of the restaurant, the defendant grabbed her pocketbook, punched her in the pelvis, causing her to fall, and dragged her until he pulled the purse from her.
At the same time that the victim was getting out of the car, Donna Diaz, a nurse employed at the Hospital of St. Raphael, was driving one of her daughters home from school when she stopped at a red light at the intersection of Blake and Valley Streets. On her left was the restaurant on Blake Street.
While waiting at this intersection, Diaz observed the defendant start to run across the street, behaving in a nervous manner. Diaz characterized the defendant as nervous because "he was looking around and he was running across the street," and she stated that he "ran directly across the street to where the lady was." Diaz then observed the defendant grab the purse from the victim, who offered no resistance. After he was in possession of the purse, he punched the victim in the pelvis and then she fell down and could not get up. After the defendant ran away with the victim's purse, Diaz instructed her daughter to lock the car doors and she proceeded to assist the victim.
Andre Pender also witnessed the robbery and assault. Pender was operating a van and had stopped at the red light at the intersection of Blake and Valley Streets directly behind Diaz's vehicle. He observed that the victim's pocketbook was on her right shoulder, and that she was facing the car when the defendant "snagged the pocketbook" and "yanked [the victim] to the ground." Pender observed that the defendant" had a problem when he yanked the pocketbook from her; it didn't come off real easy, and he pulled her to the ground." When the defendant pulled the victim to the ground, "he was dragging her."
Pender was holding a glass bottle of soda in his hand when he witnessed the crime. As the defendant attempted to escape by running toward a bridge, Pender got out of his car and hit the defendant on the side of the face with the bottle. He then chased the defendant to a nearby bridge trying to get the pocketbook. When Pender caught the defendant, he gabbed the pocketbook and slipped and fell because of ice on the ground. The victim was admitted to a hospital and was diagnosed with as having a fractured hip. Her treating physician, John Shine, explained that the victim's injury" was a more serious" type of hip fracture. It could not be repaired with steel pins. Instead, he had to take out the ball of her femur, the round ball of the bone, and put in a prosthesis. The victim remained at the hospital for approximately one week, after which she was transported to a nursing home. Shine also explained that the risk of death to a person sustaining a hip fracture and going through hospitalization was in the realm of 2 to 3 percent. CT Page 13417
Later the same night, Russell See, a sergeant with the New Haven police department, observed the defendant, whom he believed fit the description of the person alleged to have committed the crimes, at the McConoky Terrace housing project, which was just under one mile away from the restaurant on Blake Street. See knew the defendant from prior incidents. The defendant first identified himself to See using the alias "Ivan Thompson," but when confronted, the defendant subsequently admitted that his name was Michael Smith. The defendant denied that he had been in the area of the crime. He was released at that time.
Two days later, on December 11, 1996, Pender was contacted by a member of the New Haven police department and asked to view a photographic array. The array contained ten photographs, one of which depicted the defendant. When shown the array, Pender selected the defendant's photograph as that of the person who had committed the crimes. He said he was 100 percent sure of his identification. He had no trouble selecting the defendant's photograph, and there was no doubt in his mind that the person depicted in the photograph was the person who had committed the crimes. During the trial, Pender also identified the defendant in court as the person who had committed the crimes.
On December 12, 1996, Diaz was shown the same array of ten photographs. She could not be 100 percent sure about any particular photograph. She was, however, able to narrow the photographs down to two, one of which depicted the defendant. Diaz testified at trial that "the two [photographs] that were remaining on the table were too similar for me to eliminate one of them. The two individuals looked too much alike to me. "She further explained, however, that "it [was] definitely one of these two guys." During the trial, Diaz also was given an opportunity to make an in-court identification. When shown the defendant, she testified, "I think it is the man. Very well dressed now compared to then. Very well nourished now compared to then. With a nice suit on and clean shaven and a nice haircut." She further testified that "[t]o the best of [her] ability," she thought the defendant was the person who committed the crimes and that she was "90 percent" certain of the identification. She testified that "this individual is very well nourished compared to the individual I saw that night. But the face is the face, it is the same, and the height is the same."
State v. Smith, 57 Conn. App. 290, 292-95 (2000).
In the petitioner's post-trial brief, Attorney Marquette criticizes Attorney Merkin because she did not believe Smith was innocent and failed to investigate for exculpatory evidence that could have been introduced to establish a reasonable doubt that Smith was the perpetrator. Counsel further argues that Merkin's failure to introduce certain available other police reports particularly Exhibit 7, booking information as a ground for ineffective counsel. Counsel for respondent asked the habeas court to take judicial notice of three full exhibits introduced at petitioner's original criminal trial (Exhibit 1 in habeas trial); state's Exhibit 11 (the photograph signed by witness Andre Pender, criminal trial transcript, p. 90), state's Exhibit 12 (the booking photo of Michael Smith on December 13, 1996, criminal trial transcript, p. 93) and defense Exhibit 8 [also habeas Exhibit 6] (the warrant data sheet, criminal trial transcript pgs. 130-31). Habeas trial transcript of October 1, 2003 at 59-66.
In order to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) defense counsel's performance was not reasonably competent or within the range of competence expected of attorneys with ordinary training and skill in criminal law; Strickland v. Washington, supra at 466 U.S. 687-88; and (2) but for counsel's substandard performance, there is a reasonable probability that the result of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. 694. Under this analysis, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice. Bunckley v. Commissioner of Correction, 222 Conn. 444, 445 (1992). The burden of proof is upon the petitioner. Ostolaza v. Warden, 26 Conn. App. 758, 760-61, cert. denied, 222 Conn. 906 (1992). He must establish the underlying facts that form the basis of the claimed violations by a fair preponderance of the evidence. Arey v. Warden, 187 Conn. 324, 331 (1982); Blue v. Robinson, 173 Conn. 360, 370 (1977).
To satisfy the first prong of the Strickland test, the petitioner must show that his counsel made errors so serious that he was not functioning as the counsel guaranteed by the sixth amendment. Bunckley v. Commissioner of Correction, 222 Conn. 444, 455 (1992). Counsel's representation must be shown to have fallen below an objective standard of reasonableness considering all of the circumstances. Strickland v. Washington, 466 U.S. at 687-88. The right to counsel, however, is the right to effective assistance and not to perfect or error-free representation. Commissioner of Correction v. Rodriguez, 222 Conn. 469, 478 (1992).
In order to satisfy the second prong of the Strickland test, the defendant must prove that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Bunckley v. Commissioner of Correction, 222 Conn. at 455.
This second prong is satisfied if the defendant can demonstrate that there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Siano v. Warden, 31 Conn. App. 94, 98, cert. denied, 226 Conn. 910 (1993).
Merkin testified that at the time of trial she introduced Exhibit 6, the warrant data sheet and strongly pointed out the irregularities in some of the investigation as to Smith's appearance, height and weight. Even though Judge O'Keefe asked Merkin if she had any other documents to contradict the identification of the perpetrator, she only provided the warrant data sheet which gave her the information as to the identification of Smith. Although Merkin testified that to introduce the other documents now claimed by Smith would have helped to question the identification of Smith, Judge O'Keefe still had the out-of-court identification of Smith and in-court identification of Smith by Pender and the identification of Diaz (see facts outlined in criminal trial). Judge O'Keefe heard about the discrepancies and he had the warrant data sheet and his own observations at trial as testified by the two eyewitnesses.
The respondent in this habeas trial argues that testimony of other witnesses in the habeas case does not establish that the trial witnesses "falsified" any information as alleged in paragraph 8 of the amended petition. Smith testified at the habeas case that he was fixing his car at the time of the incident (Tr. September 16, 2003 at 127). He did not testify at the criminal trial. Smith did use his alibi defense through the testimony of his girlfriend Louise Maybry (Maybry at p. 139). He agreed Judge O'Keefe had an opportunity to evaluate the credibility of the alibi and he also agreed that he had a prior conviction of robbery. Id. at 139.
As for Count Two of the amended petition, the introduction of the warrant data sheet was in fact introduced at trial so that the issue of prosecutorial misconduct was not proven.
Count Three alleges that the petitioner also claims that he is actually innocent. In Sommerville v. Warden, 229 Conn. 397, 422 (1994), it was held that a claim of actual innocence is cognizable by way of a petition for habeas corpus.
Sommerville did not decide as to the standard of proof but held that the standard is higher than a petition for new trial. In Miller v. Commissioner of Correction, 242 Conn. 745 (1997), the court held that the proper standard for actual innocence is two fold; the petitioner must establish by clear and convincing evidence taking into account both the evidence adduced at the original trial and the evidence adduced at the habeas trial that the petitioner is actually innocent and that no reasonable fact finder would find the petitioner guilty of the crime. Id. at 747. The standard of proof of actual innocence is quite high. Based upon the evidence adduced at the original trial and the evidence at the habeas trial this court is not clearly convinced that a fact finder would find the defendant not guilty.
The court finds that Smith has not proven that his attorney at the original trial was ineffective or that she fell below the standard of reasonable competence expected of attorneys with ordinary training and skill in criminal law Strickland v. Washington, 466 U.S. 687-88, or that her representation was so substandard that the result would have been different.
The evidence sought to be introduced as to the identification of the perpetrator would not change the result. The original trial had positive identification in and out of court as to the perpetrator and the significance of the police booking sheet and fingerprint cards is of minimal impact when compared to the other evidence in the original case.
Accordingly, the petition is denied.
FRANK S. MEADOW, JUDGE TRIAL REFEREE.