Opinion
No. CV 97-0400369S
File Date: February 13, 2007
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
In this habeas corpus proceeding, the petitioner has alleged ineffective assistance of trial and appellate counsel and a denial of his state and federal constitutional rights to a fair trial. This claim is based on the trial court's allowing the opinion testimony of a police officer identifying him from photos and a bank videotape.
On November 8, 1996, the petitioner was sentenced after a jury trial to a total effective sentence of forty-five years, suspended after thirty-five and five years' probation. The jury convicted him of assault in the first degree, assault in the second degree of a victim 60 years old or older, robbery in the first degree, conspiracy to commit robbery in the third degree, burglary in the first degree, and conspiracy to commit burglary in the third degree. He was acquitted of other charges.
His convictions were affirmed by the Appellate Court on September 29, 1998 in State v. Watson, 50 Conn. App. 591.
STANDARD OF REVIEW
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.
Connecticut courts have addressed this test and elaborated upon a petitioner's burden in asserting such claims:
"The right of a defendant to effective assistant 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, 559 A.2d 206 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge. ( Strickland, supra.)
The petitioner's claims must be evaluated in light of these standards.
DISCUSSION I
To properly evaluate the allegations against trial counsel in this case, it is necessary to consider that the defense was essentially mis-identification. The elderly victims made sympathetic witnesses and defense counsel had to avoid the appearance of "picking on" them. There is no question that these victims were assaulted and robbed.
Therefore, the tactics suggested by the petitioner when he addressed the court in this proceeding had its risks. For example, he proposed a defense, which could appear to a jury to be: "I didn't do it, but no matter who assaulted you, you are lying because you couldn't see what you claim you saw from where you were.
Counsel who endorsed such an approach would be a prime candidate for a malpractice charge and an ineffective assistance claim.
However, even if one ignores the basic premise that counsel's strategic or tactical decisions are not subject to challenge ( Strickland, supra), the petitioner has not demonstrated how the defense would have profited by using the tactics he suggests. These include introducing the 911 tape, using photographs to show the garage door was probably open at the time of the offense and more vigorously, questioning the victims and their neighbors.
All of these persons testified and were effectively cross-examined by trial counsel.
Our Appellate Court has addressed the issue of counsel's failure to call a witness or introduce evidence. "The failure of the petitioner to offer evidence as to what [a witness] would have testified is fatal to his claim." Adorno v. Commissioner of Correction, 66 Conn.App. 179, 186 (2001), quoting Nieves v. Commissioner of Correction, 51 Conn.App. 615, 623 (1999). The petitioner also argues trial counsel failed to "adequately argue how difficult it would have been for the petitioner to allegedly go to the gas station, find an accomplice, and return to the victim's home, all within an hour's time."
The court notes the petitioner bases this claim on his having to "find an accomplice". In this age of a cell phone in every pocket, such a claim is almost an invitation to disaster and leaves a wide open door for the prosecution to suggest how the petitioner could have done all this in an hour! The habeas trial testimony as to times and distances to and from the gas station does not lend support to this theory. And, the court can envision little worse than having this attempt result in the jury being shown that it was quite possible to do this in an hour.
The decision to concede that the petitioner was at the ATM, again tactical, can easily be defended by noting the consequences had the petitioner denied being there and then have his presence proven by the state.
The court has considered trial counsel's testimony and has scoured the trial testimony.
Of particular note is an exhaustive suppression hearing wherein trial counsel attempted to suppress the identification of the petitioner's car and its photos and a later identification of the petitioner.
Remarkably, he also objected to the police identification of the petitioner from photographs. The objection was overruled but now forms the basis for the petitioner's claims addressed below.
It is the conclusion of the court that the petitioner has not met his burden on either prong of the Strickland test. Rather, the court concludes his trial counsel put on a high level criminal defense.
While this was characterized as a weak case, the court observed, as it examined the evidence, that it derived considerable vigor from the fact that it was based on the testimony of so many lay persons with no relationship to the petitioner or the victims. And, these witnesses gave testimony which began to form the links in a chain.
The claim of ineffective assistance of trial counsel is denied.
II
The petitioner claims ineffective assistance of appellate counsel because she failed to raise on appeal the court's admitting the testimony of two police officers. In that testimony, they were permitted to identify the petitioner from a photograph and a videotape. As noted above, trial counsel's objection was overruled.
Appellate counsel testified before this court that she felt she had little chance to prevail on this issue and had much stronger issues with a greater chance for success. She pointed out that there was no case law to support the petitioner's view. Actually, the case now relied on by the petitioner to support this claim was decided nine years later, viz., State v. Finan, 275 Conn. 60 (2005). This would have been a case of first impression at the time it arose in the petitioner's appeal.
In order to prevail on this claim, the petitioner must establish:
"(1) that his appellate counsel's performance fell below the required standard of reasonable competence or competence displayed by layers with ordinary training and skill in the criminal law, and (2) that this lack of competency contributed so significantly to the affirmance of his conviction as to have deprived him of a fair appeal, thus causing an unreliable conviction to stand. See Valeriano v. Bronson, 209 Conn. 75, CT Page 2879 84-86. If the issues not raised by his appellate counsel lack merit, the petitioner cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation. Accord Williams v. Manson, 195 Conn. 561, 564 (1985)." Sekou v. Warden, 216 Conn. 678, 690 (1990).
One can hardly fault counsel when that judgment is only questioned because of a case arising nine years later.
III
Again, relying on the Finan case, the petitioner argues that allowing the police identifications violated his due process rights under the United States and Connecticut Constitutions.
In their briefs, counsel for both parties agree that new constitutional rules of criminal procedure will not be applicable to cases which had become final before the rule in question is issued. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1061, 1075 (1989).
Counsel also agree that a new rule of constitutional law does not apply in cases on collateral review unless it falls within one of two narrow exceptions. Saffle v. Parks, 494 U.S. 487, 486, 110 S.Ct. 1257, 1259 (1990).
These exceptions should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. It requires the observance of those procedures that are implicit in the concept of ordered liberty. This second exception has also been described existing for "watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding.
The petitioner argues first that this claim is not a new rule in that it existed as "a common law rule" prior to 1996. No authority is cited for that claim and the Code of Evidence was not codified in 1996 when the underlying trial occurred. There was no case law to support such a view.
This claim must be rejected.
The second claim advanced here is that this situation falls within the second exception discussed above, that it involves the fairness and accuracy of the trial. The court has read the federal cases cited by the parties in addition to Teague and Saffle. That reading does not support the view that this case fits into either of the exceptions and the claim must be rejected.
While the petitioner stresses that he was never identified at the scene of the crime, thereby rendering the police identification significant, he overlooks the remaining evidence in that case. In particular, his possession of a virtual "one of a kind" vehicle and its identification, plus the circumstantial evidence elicited from the lay witnesses, constituted a substantial body of evidence warranting a conviction. The police identifications were not clinching factors.
It is this body of evidence which compels the court to conclude that even if the Finan decision were applied to this case, the petitioner's conviction was a logical and reasonable result. Therefore, the petitioner was not prejudiced by the admission of the police testimony.
CONCLUSION
The petition is denied on all counts.
The court comments in closing that Attorney Kirstin Coffin and Attorney Yamini Menon are to be commended for the quality of their trial briefs. Attorney Coffin representing the petitioner made an effective attempt to advance his cause in the face of serious weaknesses to the actual claims.