Opinion
No. CV02-0469003S
January 30, 2008
MEMORANDUM OF DECISION RE HABEAS CORPUS PETITION OF PETITIONER
Before the court is the amended habeas corpus petition filed by the petitioner Kelwood White on July 16, 2002. The sole ground claimed by Mr. White is the ineffective assistance of counsel during his trial and conviction before Robaina, J. on September 23, 1998. The petitioner was found guilty, after a jury trial, of five counts of Violation of the Dependency Producing Drug Chapter, to wit: Sale of Narcotics by a non-drug dependent person, Connecticut General Statutes § 21a-278(b); two counts of Violation of the Dependency Producing Drug Chapter, to wit: Sale of Narcotics within 1,500 feet of a public housing project, Conn. Gen. Statutes § 21a-278a(b); and one count of Violation of the Dependency Producing Drug Chapter, to wit: Sale of Narcotics within 1,500 feet of a Public Elementary School in violation of Conn. Gen. Statutes § 21a-278a(b).
On December 4, 1998, Judge Robaina sentenced the petitioner to a total effective sentence of sixteen years in the custody of the Commissioner of Correction. Ex. 8 Resp. Ex. 7 sentencing transcript 12/04/98.
STANDARDS OF REVIEW
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be utilized in the evaluation of claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range normally exercised by competent criminal defense 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 and prevailing upon such claims:
"The right of a defendant to effective assistance is not, however the right to perfect representation." State v. Barber, 173 Conn. 153, CT Page 1435 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 as to the reasonableness of that counsel's assistance. Levine v. Manson, 195 Conn. 636, 640 (1985); 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 distortion 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). Further, strategic or tactical choices of counsel are not subject to challenge. ( Strickland, supra).
At trial before the court the petitioner insisted that "it wasn't me" who sold drugs to Detective Batts on at least six occasions, urging that a misidentification resulted in his arrest and conviction. The petitioner claimed that the first time he met Batts was shortly before his arrest when brought to the station. With respect to identification of the petitioner, the court heard from Detective Richard Batts of the Middletown Police Department and Marissa Evila who, according to Batts, initially introduced the petitioner to Officer Batts as someone she knew who wanted to purchase drugs from the petitioner.
Evila, according to Batts, was an informant in 1996 when she introduced the petitioner to Batts and was herself a heavy drug user. She testified that she was under the influence of drugs on a daily basis, and that her memory of day to day events during this period was unclear. Further she was unable to identify the petitioner in the courtroom. She attributed her inability to recognize the petitioner to the effects of her drug usage in 1996 as well as the passage of eleven years since the occurrence of the events at issue in the case. One of the petitioner's claims with respect to counsel's performance at trial is that he never called Ms. Evila to testify in his trial, and that if she had testified, the trial outcome would have been different on his theory that Ms. Evila's testimony could contradict or impeach the testimony of Detective Batts. The petitioner, however, ignored the fact that Ms. Evila had given two sworn statements (Ex.s E and F) both dated February 15, 1996 implicating "Fu" as the source of the drugs purchased by Detective Batts. The petitioner acknowledged that "Fu" was a street name used by him in his day to day activities at the time of his arrest and that his middle name was "Fuquan."
The failure of now-Judge Randolf to call Ms. Evila at trial was explained by him as a decision based on the fact that she was a confidential informant who had given two statements, both incriminating his client. Therefore, he thought it unlikely that she would change her testimony at trial. Furthermore, if she happened to contradict her statements, they could have been introduced under State v. Whelan, 200 Conn. 743, 746-47, 513 A.2d 86 (1986) for substantive purposes. Such a decision can certainly be identified as a "strategic or tactical choice" of Judge, then attorney, Randolf and, therefore, not subject to challenge under Strickland supra.
Detective Batts identified the petitioner as the individual from whom he purchased the drugs at trial and at the habeas hearing. The court finds that the petitioner has not sustained his burden of proof with respect to his claim of ineffective assistance of counsel.
Therefore, his Amended Petition for Writ of Habeas Corpus is denied.