Opinion
No. CV00-0003476
August 13, 2003
Memorandum of Decision
The petitioner, Edward Vines alleges in his petition for a Writ of Habeas Corpus initially filed on November 21, 2001 and amended for the final time on May 19, 2003, that his 2000 conviction in the Judicial District of Stamford under Docket Number CR98-0123310 for one count of robbery in the first degree in violation of CGS § 53a-134 was obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He claims, in part one of his single-count petition that his court-appointed attorney, Wayne Keeney improperly advised him to stop taking his psychotropic medications and that this led to his making an outburst in the courtroom in front of the jury that prejudiced his chances before that jury. In the second part, he claims that his counsel should have called one Hafi Edge as a witness in his case. Finally, in the third part, the petitioner alleges that he was deprived of the effective assistance of counsel because Mr. Keeney had also represented Hafi Edge in a separate criminal proceeding. As a result of these three alleged errors by his trial defense counsel, the petitioner has alleged that he was denied the effective assistance of counsel. Consequently, the petitioner demands that his conviction be set aside and the matter remanded to the trial court for further proceedings.
The petitioner was originally tried in May 1998 at which time he was convicted of tampering with a witness and sentenced to eight years by the Court, Nigro, J. The jury was unable to reach a verdict as to three counts of robbery in the first degree and a mistrial was declared as to those counts. The petitioner was retried on those counts in 2000. The result of that trial was a conviction for one count of robbery in the first degree and an acquittal as to two counts. The 2000 robbery in the first-degree conviction is the subject of this habeas petition. No challenge has been raised before this Court as to the 1998 conviction for witness tampering.
The petition contains but a single count alleging that his trial defense counsel was ineffective, however, there are three separate bases stated within that count upon which relief could be predicated.
This matter came on for trial before this Court on May 13, 2003 and again on July 15, 2003 at which time testimony was received from: the petitioner; his trial defense counsel, Attorney Wayne Keeney; Mr. Hafi Edge; Dr. Martin Chaplin, Ph.D.; Mr. Torrick Johnson. Numerous items of documentary evidence were received into evidence, including, inter alia, the transcript of the petitioner's trial (twelve volumes in all), extracts from the petitioner's medical records, and several letters written by the petitioner were admitted into evidence and considered by the Court. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact (further facts will be related as necessary to resolve specific claims).
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Stamford/Norwalk, under Docket Number CR98-0123310, entitled State v. Vines, in which he was originally charged with three counts of robbery in the first degree in violation of CGS § 53a-134.
2. The petitioner's first trial in May 1998 resulted in the jury being unable to reach a unanimous verdict as to the three counts of robbery in the first degree. Consequently, a mistrial was declared as to those counts. Notwithstanding the failure to reach a verdict on those counts, the petitioner was convicted of two counts of tampering with a witness in violation of CGS § 53a-151.
3. The petitioner was sentenced to a total effective sentence on the two counts of eight years to serve by the Court, Nigro, J. on August 10, 1998.
4. Attorney Wayne Keeney, a special public defender, was appointed to represent the petitioner for his second trial on the charges of robbery.
5. On April 20, 2000, the jury returned a verdict of guilty as to one count of robbery in the first degree and not guilty to the other two counts.
6. On July 7, 2000, the Court, Freedman, J. sentenced the petitioner, to a prison term of twenty years, concurrent to the previously adjudged eight-year term.
7. The petitioner suffers from mild depression and has been diagnosed with an antisocial personality disorder.
8. On August 31, 1999, the petitioner was prescribed Depakene (250 mg) to help with his impulse control and volatile behavior.
9. The petitioner was frequently non-compliant with taking his prescribed medications. At least one lab test taken during the period in which he was supposed to be taking his medications showed that the level of Depakene had dropped below a therapeutic level.
10. Shortly before his retrial in April of 2000, the petitioner voluntarily stopped taking his medications altogether because he felt he wasn't seeing enough of Dr Martin Chaplin. Mr. Downey, his primary therapist, recorded this in the petitioner's medical record.
11. There has been no evidence produced that would support a conclusion that the discontinuation was for any reason other than that recorded in the petitioner's medical record. Specifically, it has not been proven that the petitioner stopped taking his medication at the urging, behest, or direction of his trial defense counsel, Attorney Keeney.
12. The count of robbery in the first degree involved the theft of a watch from a Mr. Daryl Petit in which the petitioner, his cousin, Curtis Vines, and Torrick Johnson were alleged to have committed the theft.
13. Mr. Hafi Edge was a criminal defendant in an unrelated matter that was also pending in the Judicial District of Stamford. Attorney Wayne Keeney represented Mr. Edge in that matter.
14. Mr. Edge was present in the lockup at the Stamford Courthouse on two occasions when both Torrick Johnson and Edward Vines were also present.
15. According to Mr. Edge, on one of those occasions, Torrick Johnson stated that he had been involved in the Petit robbery and that Curtis Vines was also involved. Mr. Edge stated that Johnson said he had taken the watch and made no mention of the petitioner's involvement or non-involvement.
16. The petitioner brought this to the attention of Attorney Keeney and asked that Mr. Edge be called as a witness on his behalf.
17. Torrick Johnson was a co-defendant with the petitioner and testified at the habeas trial that he would have refused to testify at the Vines trial because he would have exercised his right to silence under the 5th Amendment of the Constitution of the United States.
18. Attorney Keeney declined to call Mr. Edge as a witness because he felt that he would be a poor witness, had poor credibility, and, since the petitioner had already been convicted of tampering with a witness, would have allowed the prosecution to raise that issue at the re-trial.
19. Additional facts shall be discussed as necessary.
Discussion
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition, having already been convicted, is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is innocent, but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).
The Claim of Ineffective Assistance of Counsel due to Conflict of Interest
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's trial defense counsel, the petitioner must satisfy both prongs of the test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
The rule where there is a demonstrable conflict of interest is slightly different, however. "[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." Cuyler v. Sullivan, 446 U.S. 335 at 349-50 (1980). The key to this, however, lies in the demonstration of an actual conflict of interest inherent in the counsel's representation. "[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance." Cuyler v. Sullivan, 446 U.S. 335 at 350 (1980). With their decision in Cuyler, the Supreme Court eliminated the Strickland requirement that a petitioner must demonstrate prejudice where he or she can demonstrate an actual conflict of interest that affected the representation.
With this standard in mind, it is clear that when one examines the evidence in this case that habeas relief is not warranted. It is, of course, true that Attorney Keeney did represent both Hafi Edge and the petitioner in criminal matters pending before the Superior Court in the Judicial District of Stamford. However, it is important to note that there is no connection between the two incidents that led to the charges against each man. Mr. Edge and the petitioner were not co-defendants and were not acquainted with each other. The facts in this case involved the decision by Attorney Keeney not to call Mr. Edge as a witness. This is not the situation where the state had called Mr. Edge as a witness, thereby leaving Attorney Keeney in the potentially untenable position of having to breach attorney/client privileges with one client for impeachment purposes in order to serve the needs of a second client. To the extent that Attorney Keeney may have used any privileged information obtained through his representation of Hafi Edge, it worked to the benefit of the petitioner when he declined to call Mr. Edge as a witness. There being no clear conflict of interest between Mr. Edge and the petitioner, this Court finds that the petitioner has failed to prove an actual conflict of interest in Attorney Keeney's representation. The standard enunciated by the Supreme Court in Strickland is therefore, the applicable standard to be applied in this case. Now it is necessary to examine Attorney Keeney's tactical decision to not call Hafi Edge as a witness and determine if this constitutes ineffective assistance of counsel.
Attorney Keeney testified that he did not believe that Hafi Edge would be a good witness for the petitioner to call. He based this decision in part upon his representation of Mr. Edge. It must he made clear that at no time did Attorney Keeney violate his attorney-client responsibilities in regard to Mr. Edge. He simply used what could colloquially be called "insider knowledge" to avoid a potential impeachment disaster that could have hurt the petitioner at his trial.
The Claim of Ineffective Assistance of Counsel Due to Failure to Call Hafi Edge as a Witness
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. In this regard, the Court notes that counsel for the petitioner has argued that the failure to use Hafi Edge as a witness was deficient performance by Attorney Keeney. It is true that "of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have." United States v. Cronic, 466 U.S. 648 at 654 (1984). Nevertheless, one must bear in mind that "[t]he right of a defendant to effective assistance [of counsel] is not, however, the right to perfect representation." State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (1989). He must also show "`that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.' Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 59 A.2d 206 (1989)." Williams v. Bronson, 21 Conn. App. 260, 263 (1990).
It is, therefore, incumbent upon a habeas court, knowing the outcome of the trial "[to] not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but . . . evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000). This Court must, therefore, determine if the trial defense counsel's tactical decision to forego calling Hafi Edge as a witness fell below the range of competence expected of attorneys with ordinary training and skill in criminal law. Strickland, supra at 687.
Moreover, it is not even necessary to consider whether a trial counsel's performance was deficient if the habeas Court is satisfied that there was no prejudice to the defendant by the actions or inactions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
In the instant case, the petitioner complains that failing to call Hafi Edge was deficient performance. "Judicial scrutiny of counsel's performance must be highly deferential, and a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Chace v. Bronson, 19 Conn. App. 674 at 678 (1989). Attorney Keeney testified that he was concerned about calling Hafi Edge because first of all, from his own knowledge of Mr. Edge, there were serious doubts that could be raised about his credibility. Secondly, Attorney Keeney was concerned that this testimony could lead to the jury finding out that the petitioner had been convicted of witness tampering in connection with the same case. In fact Attorney Keeney is convinced that had he called Hafi Edge, not only would the petitioner not have been exonerated on the one count of which he was found guilty, he would have been convicted on the two counts of which he was ultimately acquitted. This Court will find that there is a sufficient tactical basis for the decision to avoid calling Hafi Edge. There has been no deficient performance by Attorney Keeney in that regard.
At the habeas trial, Attorney Keeney testified that Hafi Edge was surly and was an outright liar. In fact, he had lied to Attorney Keeney.
The Claim of Ineffective Assistance of Counsel by Instructing The Petitioner to Discontinue Medication
The petitioner has alleged that he stopped taking his medication, Depakene, at the direction of his trial defense counsel, Attorney Wayne Keeney. During the trial of this case, apparently the petitioner became agitated over something that his Attorney had done or failed to do. A dispute arose and culminated with the petitioner angrily overturning the defense counsel table, nearly striking the state's attorney. All of this disruptive behavior took place within full view of the jury. After order was restored, Attorney Keeney moved for a mistrial that was denied by the Court. The petitioner now seeks to blame his trial defense counsel for this incident by alleging that his decision to discontinue the Depakene which had been prescribed to improve impulse control was the result of Attorney Keeney ordering him to stop the medication. Unfortunately for the petitioner, the evidence simply does not support that allegation. While Attorney Keeney may have had some concerns about the medication causing diurnal sleepiness, he never told the petitioner to stop taking his medication. In fact, it is clear from the testimony of both the petitioner and Dr. Chaplin that the decision to stop taking Depakene was a unilateral decision on the part of the petitioner and was motivated by reasons other than his pending trial. Consequently, there is no basis for granting this petition.
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 Count I of the petition must be denied.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge