Opinion
No. CV 00-0598785
April 3, 2003
MEMORANDUM OF DECISION ON PETITIONER'S WRIT OF HABEAS CORPUS
The petitioner, Jermaine Woods (hereinafter "Woods"), was convicted after a jury trial in the Superior Court for the Judicial District of Waterbury of murder in violation of CGS § 53a-54a and received a sentence of fifty years imprisonment. The petitioner took a direct appeal to the Connecticut Supreme Court, which affirmed the conviction in State v. Woods, 250 Conn. 807 (1999).
On May 10, 2000 the petitioner filed a petition for a writ of habeas corpus, which petition was amended on March 15, 2002, and which claimed ineffective assistance of trial counsel in the First Count and actual innocence in the Second Count. For the reasons hereinafter stated, the petition is granted as to the First Count, but denied as to the Second Count, and a new trial is ordered.
FACTS
In State v. Woods supra, the Court stated, inter alia that:
The jury reasonably could have found the following facts. In the early morning hours of November 5, 1994, the defendant and the victim, Jahmal Hall, began arguing in the vicinity of North Main and East Farm Streets in Waterbury. Domingo Alves, a close family friend of Hall, placed himself between Hall and the defendant. Alves put his hands out, one toward Hall and one toward the defendant, in an effort to separate them. Hall stood calmly, but the defendant kept rushing against Alves, trying to reach Hall. Alves then lightly put both his hands on the defendant's chest to stop him from advancing. The defendant removed a gun from his pocket. When Alves saw the gun, he took a step back from the defendant. Hall stood still and appeared to be frightened. The defendant shot Hall once in the torso, then ran to his car. While driving away, the defendant told his cousin, James Bryan, who was waiting in the car, "I told him stop messing with me." Jahmal Hall later died from the gunshot wound.
This area was a popular spot for people to socialize after the surrounding bars and clubs closed for the night, and there were approximately 100 people in the area on the night of Hall's murder.
Id. 809.
At trial, the defendant claimed that he had shot Hall in self-defense. He testified that, on the night in question, he had been drinking and dancing at clubs with Bryan. According to the defendant, Hall had given him a dirty look after the defendant danced with Hall's ex-girlfriend. The defendant claimed that, later that night, as he started to drive home, Hall yelled obscenities at him. The defendant then stopped the car and went to talk to Hall. The defendant further testified that a group with at least three large men, including Alves, who were friends with Hall, surrounded the defendant and began pushing and shoving him. The defendant testified that he had taken out the gun to scare these men away. According to the defendant, the gun then had discharged, either because someone had banged into it or because the defendant's finger had slipped on the trigger. After the gunshot, the defendant ran to his car. The defendant stated that he did not know whether the bullet had hit anyone until the day after the shooting, and that he had not intended to injure anybody.
William Henry Reid also testified for the defense. Reid stated that he had seen the defendant and Hall arguing on the night of the murder. Reid stated that a group of four or five individuals, all the same size as or larger than the defendant, had approached the defendant and Hall. According to Reid, those individuals had surrounded the defendant and began clutching and grabbing at him. Reid testified that he had heard a gunshot and had seen the defendant run to his car.
During the habeas trial, the petitioner testified that these men who were crowding around him were known to the petitioner as guys who were known to "jump guys." (Htr. (which is used here and hereafter for "habeas transcript") 6-26-02 at p. 31.) The petitioner also testified at the habeas trial that at some point the petitioner believed that these three men were approaching him in a threatening way. He testified that he removed a pistol from his pocket and began waving it at the men in an attempt to halt their movements toward him. The petitioner went on to testify that one of the men who was surrounding the petitioner, Derrick Davies, jumped at him (Htr. 6-26-02 at 36-37.) The petitioner got nervous and discharged the gun. Id. at 39.
The first trial ended in a hung jury and was declared a mistrial. The second trial commenced on January 9, 1997. Attorney Jayne Kennedy (hereinafter referred to also as "Kennedy"), then a member of the Public Defender's office for the Judicial District of Waterbury represented the petitioner at each trial. Although Attorney Alan McWhirter, the Director of Public Defender Services in Waterbury was involved in the first trial, he was not involved in the second trial. Prior to the commencement of the second trial, Attorney Louis Avitabile (hereinafter also "Avitabile") was asked to represent the petitioner by the petitioner's family, but they were unable to pay his retainer. However, Avitabile advised Attorney Kennedy during the trial. Following the commencement of jury selection, Avitabile met with the petitioner. According to Avitabile this meeting took place on the Sunday before Martin Luther King's birthday (January 19, 1997). Avitabile had already learned that the petitioner may have had some organic brain damage (Htr. 8-2-02 p. 116, lines 18-27). Avitabile advised Attorney Kennedy that in addition to the self-defense defense, they should have a defense of diminished capacity under CGS § 53a-13. This was based not only upon the information Avitabile had as to possible organic brain damage, which was later confirmed by Dr. John Felber, the psychiatrist presented at the habeas trial by the petitioner, but also after interviewing the petitioner. Avitabile advised Kennedy that they should advance a defense of diminished capacity. In fact, evidence of diminished capacity was introduced in the trial. Attorney Gregory St. John, an attorney who previously represented the petitioner, testified as to petitioner's inability to comprehend certain things, the results of a bubble test, a test to determine a level of intelligence, was introduced, and an attempt was made to introduce his school records. Kennedy admitted this at the habeas trial based upon the following dialogue between the Court and Attorney Kennedy:
They were not admitted because of late disclosure to the state, but a witness was permitted to talk about them.
THE COURT: But you had to introduce the bubble test, St. John's testimony and the school records in order to have evidence to be able to say to Judge Murray, there is evidence in here of diminished capacity; therefore I want a charge on diminished capacity; because if you didn't have that in there, Attorney Eschuk would say, `there is no evidence'?
THE WITNESS: `Yes'
Kennedy did ask for a charge on diminished capacity, and it was given by the trial court. Accordingly, there was evidence of diminished capacity as agreed upon by Kennedy and Avitabile and which was admitted into evidence and which convinced Judge Murray to charge on that point. The question then remained as to whether or not an expert witness, namely a psychiatrist, should have evaluated the petitioner and testified as to his diminished capacity.
This was Avitabile's response at the habeas trial:
THE COURT: Now, wouldn't that have stimulated you or Attorney Kennedy to get an evaluation?
THE WITNESS: Again, at that point in time I felt it was too late and she probably felt the same way. I mean, as a practical matter during the trial she was having a difficult time with Judge Murray. At one point the trial had to be called — a recess of the trial because she was crying and upset. It was a difficult thing for her. And so for her — and the other thing is, unfortunately, I was not second chair, I was not there, I wasn't in the conferences, so I don't know what she did to try and get the reports in or what occurred. All I tried to do was help from outside of the courtroom, basically. And that's the position that I was in.
(Htr. 8-2-02 p. 117.)
Both counsel at the habeas trial agreed that Attorney Avitabile was a competent, effective and experienced criminal defense attorney.
Attorney Visone, the petitioner's attorney, pursued this questioning of Avitabile by asking:
Q: So basically your testimony is that had you not gone past the time period under the Practice Book of giving notice to the prosecution of an intent to call an expert witness, based on all the information you had, based on information from Attorney St. John, based on what you saw when you interviewed Jermaine Woods, that you certainly would have at least hired a psychiatrist to evaluate to see where that went? Had the Practice Book not precluded you, that's another question of whether —
A. I mean if, you know, I had gotten into the case and the people had retained me and I had been involved with the case, the first time I met him, I think at that point in time I may have asked him for more time at that point in time. But the first time I met him the trial had already started. That was the problem.
Htr. 8-2-02, pp. 117-18.
Then, on page 119, Attorney Visone asked:
Once you spoke to Attorney St. John and you felt in your mind that diminished capacity was a viable defense, and that if you had time under the Practice Book to get an expert witness, have him evaluated, present expert testimony at trial, if you were in charge of that trial, if you had been hired, would you have done that?
Avitabile answered: Yes.
Over the State's objections, the defense at the criminal trial called a representative of the Waterbury Adult Education Department to testify that the petitioner had done poorly on a test administered by that department, and an attorney who had represented the petitioner to testify that he had experienced some difficulties with the petitioner's cognitive abilities. The defense was not permitted to introduce a school evaluation of the petitioner dating from 1982. See footnote 1. Attorney Avitabile was called as an expert witness by the respondent in the habeas trial.
Both Attorney Kennedy and Attorney Avitabile testified that they did not ask the Court for an extension of the time period for notifying the State of its intent to call an expert simply because they felt that the court would have denied such a request. (Htr. 7-16-02 p. 48; Htr. 8-2-02 p. 102, line 21.) Upon questioning of Attorney Avitabile by the habeas court, Attorney Avitabile agreed with the Court that the Practice Book rule gives the judge the discretion to fashion an appropriate remedy in a situation like this. (Htr. 8-2-02 p. 103-04.) Further, Avitabile/Kennedy were not certain that Judge Murray would have denied this request, and Kennedy should have at least tried to get an extension of time. Additionally, a denial of such a request under the circumstances could have been an issue on appeal.
STANDARD OF REVIEW
The "right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984). In Strickland v. Washington, supra, the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: The defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness, id. 687-88; and (2) that defense counsel's deficient performance prejudiced the defense, id. 694. As for the second prong of Strickland supra, the Petitioner is required "to demonstrate that there is a reasonable probability that the result of the proceedings would have been different had it not been for counsel's deficient performance. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Copas v. Commissioner of Correction, 234 Conn. 139, 154-55 (1995).
In addition, the habeas court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency and inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions, their interest or lack of interest in the case, and in the case of expert witnesses, their qualifications and experience as well as all of the above-mentioned factors which applied to all witnesses.
The Court has reviewed its notes from the habeas trial, the transcripts of its testimony, the exhibits from said trial, and the post-trial briefs of the parties. Based upon the totality of the evidence this Court makes the following findings.
A. First Count — Ineffective Assistance of Trial Counsel
1. The fatal flaw in the performance of Attorney Kennedy was the failure to have the petitioner evaluated by a psychiatrist, and the failure, under the circumstances, to ask for a continuance in order to have an evaluation of the petitioner by a psychiatrist which if granted, would have resulted in a psychiatrist finding that the petitioner was of diminished capacity, and if not granted, the failure to grant the continuance under the circumstances would have been a viable issue on appeal. Could Kennedy have obtained a psychiatrist who would so testify? Well, at the habeas trial, the petitioner presented the testimony of Dr. John Felber, a well-known psychiatrist who has been in the practice of psychiatry for more than fifty-seven years in Connecticut, who, in essence, testified that at the time of the commission of the crime petitioner was of pathologically diminished capacity in that his mental state caused him to exaggerate the threats against him, to be more fearful than the actual situation warranted, and, therefore, thought he was acting in self-defense or in response to the threat which to him was much larger than was taking place, and, that he, therefore, lacked the intent to commit murder. Two expert witnesses, the first, Attorney Allan McWhirter aforementioned as the Chief Public Defender in the Waterbury Judicial District testified that ". . . the only person that a judge is going to allow to render an opinion is probably going to be the psychiatrist." (Htr. 8-2-02 p. 77.) Attorney Avitabile in response to this Court's question which was: "The question then becomes, if you're going to use that defense shouldn't you go all out to use it and, therefore, have the petitioner or the defendant evaluated by a psychiatrist?"
See P.B. § 40-18 entitled "Notice by Defendant of Intention to Use Expert Testimony regarding Mental State; Filing Reports of Exam," reads as follows:
If a defendant intends to introduce expert testimony relating to the affirmative defenses of mental disease or defect, or of extreme emotional disturbance or another condition bearing upon the issue of whether he or she had the mental state required for the offense charged, the defendant shall, not later than forty-five days after the first pretrial conference in the court where the case will be tried or at such later time as the judicial authority may direct, notify the prosecuting authority in writing of such intention and file a copy of such notice with the clerk. The defendant shall also furnish the prosecuting authority with copies of reports of physical or mental examinations of the defendant prepared by an expert whom the defendant intends to call as a witness in connection with the offense charged, within five days after receipt thereof. The judicial authority may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.
(Emphasis added)." Also, see P.B. § 40-17 entitled: "Defense of Mental Disease or Defect or Extreme Emotional Disturbance; Notice by Defendant" which also permits such discretion by the judicial authority.
Attorney Avitabile's reply: "The answer to that would be if the judge would have allowed it then it would have happened, your Honor and it's something that we didn't move forward because we felt the judge — she didn't move forward — just giving her advice, she didn't move forward because I felt that the judge would not allow it under the circumstances of the evidence already having started, the matter being discovered at that point in time." Htr. 8-2-02 p. 106. In answer to the State's Attorney's questions inter alia, in referring to the use of diminished capacity as a defense, he replied: "I don't think you can ignore it once it raises its head." (Htr. 8-2-02 p. 109.)
It should also be noted that, as to the petitioner's school records, the person who brought them was allowed to testify only as to certain things in it, but the records were not admitted into evidence, and according to Avitabile it was: "Because I believe the judge ruled there was not enough prior disclosure for the State." This Court concludes that the failure to disclose these records in sufficient time to allow them to be introduced into evidence also supports the claim of ineffective assistance of counsel.
2. Avitabile became aware at the time he met with Woods that there was a possible issue as to diminished capacity. Kennedy, on the other hand, did not recognize this potential defense even though she had spent much more time with the petitioner having represented him during the first trial. She did not think of such a defense until she received advice from Avitabile. This can be ascribed to her inexperience because according to Attorneys McWhirter and Attorney Kennedy herself, this was her first murder trial. The reason given by Kennedy for not recognizing this defense, although she conceded that she should have obtained an evaluation from a psychiatrist, was that she would have to speak to him using short sentences, always trying to explain things to him in the simplest of terms. (Htr. 7-16-02 p. 34-55.) Kennedy also stated that petitioner was "slow" (Htr. 7/16/02 p. 35) and later testified that if someone is slow, he is of diminished capacity. Htr. 7-16-02 p. 40. This Court concludes that Kennedy knew or should have known of petitioner's diminished capacity and, therefore, should have moved immediately after the first trial to have him evaluated by a psychiatrist. This failure to act promptly once she determined petitioner was slow supports the conclusion of ineffective assistance of counsel.
Htr. 7-16-02 p. 55, line 11.
3. Copas v. Commissioner of Correction, 234 Conn. 139 (1995).
Although counsel for both parties made little if any mention of Copas, supra, in their briefs, this Court finds some similarities to the holdings in Copas. This Court is very familiar with Copas v. Commissioner of Correction because it presided over the retrial of the criminal case at which a defense of extreme emotional disturbance was raised. This Court notes that in Copas v. Commissioner, supra, the Supreme Court did not take up the issue of whether the habeas court properly concluded that Copas's attorney, Jerry Gruenbaum, provided ineffective representation of Mr. Copas. It is clear from the decision of the habeas court that it found that Attorney Gruenbaum was a self-described tax and corporate law specialist with little if any experience in criminal defense. Both the petitioner and his mother alerted Gruenbaum to the petitioner's long history of mental, emotional and substance abuse problems. Gruenbaum examined the petitioner's school records and spoke by telephone to a psychiatrist with whom the petitioner had previously met. Although on June 11, 1986, Gruenbaum filed a notice of intent to introduce expert testimony relating to the existence of a mental disease or defect, he never consulted such an expert. He had decided that, because the petitioner's metal disabilities did not rise to the level of insanity, no defense based on the petitioner's mental condition applied. Gruenbaum made no further attempt to investigate the petitioner's mental health and did not request an independent psychiatric evaluation. Furthermore, he did not mention any potential defense to the State's Attorney. Copas, Id. 142-43. "The habeas court determined that Gruenbaum had never requested an independent psychiatric evaluation because he did not feel that any psychiatrically-oriented defense applied. The Habeas Court also determined that Gruenbaum did not have sufficient knowledge of criminal law to make such an assessment. The habeas court noted that during his testimony at the habeas hearing, `[a]ttorney Gruenbaum was unable to define "extreme emotional disturbance." He was unable to set forth the elements of the crime of murder. It became apparent that trial counsel, at best, was confused about presenting an affirmative defense upon mental disease or defect . . . Mr. Gruenbaum's testimony at the habeas corpus trial indicated that he did not know or appreciate the difference between "insanity," "extreme emotional disturbance" and "diminished capacity."' Copas v. Commissioner, Id. 146-47. The habeas court then focused on Gruenbaum's performance pertaining to the petitioner's sentencing and concluded that `[T]rial counsel's conduct in preparing for and in his presentation of the sentencing hearing was not reasonably competent nor was it within the range of competence of Connecticut attorneys practicing criminal law in 1986.'"
The Court fully recognizes that Copas was a situation in which the defendant pleaded guilty at his criminal presentation whereas in the case at bar, the petitioner (defendant) was found guilty after a trial. However, with the exception of a slight difference between Hill v. Lockhardt, 474 U.S. 52 (1985) and Strickland, supra, the same principles of ineffective assistance of counsel apply.
The similarity between the case at bar and the Copas case is that in Copas, Gruenbaum had been made aware from the petitioner and his mother of the possibility of a mental disease, defect etc.; but did very little investigation, was not aware of the defense of extreme emotional disturbance and did not pursue a psychiatric evaluation of the petitioner. In the instant case, Attorney Kennedy, despite being with the petitioner during the first trial, should have but did not fully realize there was a potential diminished capacity defense until she heard from Attorney Avitabile. She did not appreciate such a defense even though she knew the petitioner was slow and knew that slow was the same as diminished capacity. She knew this during the first trial, but did not take any steps to have him evaluated by a psychiatrist for the second trial. Once she learned of the significance of petitioner's slowness or diminished capacity, she did not even attempt to seek time to have him evaluated by a psychiatrist.
Htr. 7-16-02, p. 40, lines 7-13.
Another similarity is that the Copas case was Gruenbaum's first major felony case, and the Woods case was Kennedy's first murder case. At least part of the habeas court's decision was based upon the failure of Gruenbaum to obtain an evaluation by a psychiatrist. In the case at bar, Kennedy was aware of a diminished capacity defense and presented some evidence, but she failed to have a psychiatric evaluation done of the petitioner.
"Consequently, the habeas court concluded that the failure by the petitioner's counsel to request a state funded expert mental health evaluation, in addition to his failure to identify and understand the petitioner's potential defenses, constituted substandard professional conduct. The habeas court ruled that Gruenbaum's failure to understand and investigate the petitioner's potential defenses had precluded any meaningful pretrial discussions with the state's attorney and that [t]here is a reasonable probability that, but for Gruenbaum's unprofessional errors, the result of the proceeding would have been different." Copas, id. 149. The habeas decision was affirmed by the Supreme Court.
Another similarity between this case and Copas is that at the habeas trial testimony was given by Dr. Kenneth Selig (hereinafter also "Selig") who is an adult clinical and forensic psychiatrist. "Selig testified that as a consequence of the petitioner's mental illness and the stressors he was experiencing in April 1986 the petitioner would likely have misinterpreted the intentions of others and would have become provoked in situations in which a healthy person would perceive no reason for provocation. Because of his atypical impulse disorder, the petitioner had a diminished capacity to control his behavior after provocation. Selig concluded, with a reasonable degree of medical certainty, that the petitioner was mentally ill and had suffered from a severely diminished capacity to control his behavior in April 1986. Gruenbaum's failure to investigate caused this mental illness to remain undetected." (Emphasis added). Copas, id. 159. This is similar to the findings of Dr. Felber.
Dr. Felber testified at the habeas proceeding that the petitioner's ability to correctly interpret abstract concepts of danger is virtually non-existent. "Concrete danger when somebody holds a knife to his throat, this he understands . . . concrete danger when somebody holds a knife to his throat, this he understands, and this he can appreciate, but if somebody threatens him with words his appreciation is much less good, with gestures his appreciation is again much less good, with a glance it is again less good, with an attitude without words . . . The importance is what did he experience at the moment of being surrounded by these people which then led to the incident which ended with the death of a person.
As I said before, his understanding and correct evaluation of the situation is gravely deficient. He is not able to correctly interpret a situation as to its dangerousness or as to its meaning in general when the situation is abstract. When it is concrete, the knife to his throat, he has no problems. When it is abstract like chill it, chill it, he does have a problem because chill it is abstract — a much more abstract manifestation or expression . . . than a knife to the throat . . . An abstract situation is a situation in which there is no image, in which there's no palpable concrete basis for perception. An abstract situation is a situation where the perception plays no role, but the comprehension is everything. This is where he's zero . . . the probability of an organic situation is great because this is the characteristic of an organic situation and not of an IQ situation . . ." Dr. Felber said that there was a high probability of his having organic brain damage, and the Court then asked him: "Can you say from one to ten?" Dr. Felber answered "eight." Htr. 6-26-02, pp. 141-49.
Dr. Felber testified that during his examination of the petitioner, the petitioner told him that an injury to his brain took place when he was about three years old. Htr. 6-26-02, p. 138.
Attorney Eschuk, the Assistant State's Attorney, asked Dr. Felber: "Doctor, you have testified in effect that you came to the conclusion that Mr. Woods is unable to assess the level of danger to him in certain situations?" Dr. Felber's answer was: "That is correct." (Htr. 7-16-02 p. 10.)
Dr. Felber testified that the petitioner on November 9, 1994, the date of the killing and at the time of the killing, was unable to assess the level of danger to him in the situation in which he was confronted by people around him of whom he was afraid, and that he had an exaggerated sense of fear based upon his misperceiving that he was being attacked. Dr. Selig stated in Copas ". . . that as a consequence of the petitioner's mental illness and the stressors he was experiencing in April 1986, the petitioner would likely have misinterpreted the intentions of others and would have become provoked in situations in which a healthy person would perceive no reason for provocation. Because of his atypical impulse disorder, the petitioner had a diminished capacity to control his behavior after provocation." The conclusions are similar.
4. Kennedy asked the trial court for an instruction on "mistake of fact." The trial court refused. This defense is available under CGS § 53a-6 (a) which provides in pertinent part:
A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense . . . or (3) such factual mistake is of a kind that supports a defense of justification. A mistake of fact exists when one makes an erroneous perception of the facts as they actually exist . . . The defense arises only where the defendant misperceives an objective state of existing fact . . .
(Emphasis added.)
From Dr. Felber's testimony, if he testified at the criminal trial, there would clearly have been sufficient evidence of mistake of fact at least to warrant a charge thereon. Kennedy's failure to bring a psychiatrist to testify as did Dr. Felber undermined a potential defense of mistake of fact.
For all of the reasons stated above, this Court finds that Attorney Kennedy's representation of the petitioner at the second criminal trial was ineffective, and that her performance fell below the acceptable standard of performance of criminal defense attorneys in the area. The first prong of Strickland, supra, has been fulfilled or met by the petitioner.
5. Was the Petitioner Prejudiced by the Ineffective Assistance of Counsel?
The short answer to this question is "yes." The second prong of Strickland in effect states that the petitioner has to prove that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. "Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." Lockhardt v. Fretwell, 506 U.S. 364, 369 (1993). ". . . the resolution of the `prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Copas v. Commissioner, supra. Id. 157.
Further: "Although the totality of this evidence (Dr. Selig's evidence) may not amount to a compelling extreme emotional disturbance defense, it need not approach that level of certitude because the petitioner must show only that a more favorable outcome was likely . . . We, therefore, conclude that the habeas court correctly determined that the petitioner was prejudiced by ineffective assistance of counsel at the time of his conviction. The petitioner has satisfied the prejudice requirement of the Hill-Strickland standard, and the habeas court, therefore, properly vacated the petitioner's conviction." Copas, Id. 165-67.
Based upon the evidence before this Court, namely the testimony of Dr. Felber, this Court finds that Dr. Felber is an articulate, experienced and knowledgeable psychiatrist and gives substantial credence to his findings. This Court gave the respondent time to have the petitioner examined and evaluated by a psychiatrist of his choosing. After a substantial period of time had elapsed, the respondent advised that he would not seek his own psychiatric examination and evaluation. This may have been because the ultimate determination of whether the petitioner was suffering from diminished capacity would be up to the finder of fact after hearing the testimony of all the psychiatrists, or it may be that the respondent could not find a competent psychiatrist to contradict Dr. Felber. In any event, this Court has before it only the testimony of Dr. Felber, and just as in Copas, this Court finds that but for counsel's errors, it is reasonably likely that a more favorable outcome of a new trial would be successful for the petitioner.
Accordingly, the First Count of the amended petition is granted.
B. Is the Petitioner Actually Innocent of the Crimes Charged?
This is the second claim of the petitioner, and the answer to that question is that this Court cannot enter a finding of actual innocence. The leading Connecticut case is Miller v. Commissioner of Correction, 242 Conn. 745 (1997), which provides for two elements to be considered in deciding a claim of actual innocence. The petitioner must convince the habeas court by clear and convincing evidence that the petitioner is actually innocent of the crimes of which he stands convicted (emphasis added). Second, the petitioner must establish that no reasonable fact-finder would find the petitioner guilty on a retrial.
If the sole psychiatrist at a new trial is Dr. Felber, this Court believes that it is highly likely that the petitioner would either be acquitted or at the very least receive a substantially less term of imprisonment. However, there may well be one or more psychiatrists presented by the respondent to contradict Dr. Felber. This is a question for the finder of fact.
Petitioner's Exhibit 2 in the habeas trial is a report from Dr. Felber dated February 28, 2002 which reads in pertinent part:
As a result of my exploration, I have formed the opinion that on November 5, 1994, date of the defendant's argument with Jahmal Hall which led to the fatal shooting, Jermaine Woods' mentation and mental capacity were pathologically diminished. This deficiency precluded his correct evaluation and realistic understanding of the situation and his own endangerment.
During the psychiatric interview, Mr. Woods' understanding of my questions was significantly limited and slow. In addition, he was unable to comprehend abstract concepts, his judgment was markedly impaired and his adjustment to reality shallow and superficial.
In my opinion, the extent of the defendant's mental impairment on November 5, 1994 precluded his appropriate evaluation of his endangerment, and his limited mentation rendered the need for self-defense self-evident.
Although this Court believes that the petitioner is entitled to a new trial, it cannot, from the evidence presented and the evidence likely to be presented, conclude that the petitioner is actually innocent by clear and convincing evidence or that in a retrial no reasonable fact-finder would find the petitioner guilty.
Accordingly, the Second Count of the amended petition claiming actual innocence is denied.
CONCLUSION
The petition for habeas corpus is granted, and a new trial of the petitioner is hereby ordered.
The petitioner is ordered conditionally released from confinement. He shall be absolutely discharged unless within thirty days from the date of this memorandum of decision, the State's Attorney for the Judicial District of Waterbury files with the clerk's office a written notice of intention to proceed with the retrial of the petitioner. A copy of any such notice shall be provided to the petitioner, to his counsel of record in this habeas proceeding, and to this Court.
The undersigned, sitting as the Habeas Court, shall retain jurisdiction to make, upon proper motion, a bail determination for the release of the petitioner while an appeal is pending and/or while the awaiting of a new trial if the State's Attorney chooses to proceed with a new trial.
Note: The Court appreciates the professionalism and dedication of both counsel during this trial.
EXHIBIT I February 28, 2002
Joseph Visone, Esq.
Attorney at Law
41 Miscoe Road
Mendon, MA 01756
PSYCHIATRIC REPORT RE: Jermaine Woods DOB April 8, 1975
Dear Mr. Visone:
At your request, I conducted a clinical psychiatric examination of your client, Jermaine Woods, at MacDougall correctional facility on December 11, 2001. In addition, I studied several legal documents concerning the case, among them the Supreme Court decision 250 Conn. 807, State v. Woods, (Conn. 1999). As a result of my exploration, I have formed the opinion that on November 5, 1994, date of the defendant's argument with Jahmal Hall which led to the fatal shooting, Jermaine Woods' mentation and mental capacity were pathologically diminished. This deficiency precluded his correct evaluation and realistic understanding of the situation and his own endangerment.
During the psychiatric interview, Mr. Woods' understanding of my questions was significantly limited and slow. In addition, he was unable to comprehend abstract concepts, his judgment was markedly impaired and his adjustment to reality shallow and superficial.
In my opinion, the extent of the defendant's mental impairment on November 5, 1994, precluded his appropriate evaluation of his endangerment, and his limited mentation rendered the need for self-defense self evident.
Psychiatric Report Jermaine Woods
Rittenband, JTR