Opinion
No. CV98-412150-S
November 9, 2005
MEMORANDUM OF DECISION ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS
The petitioner was the defendant in a criminal case in the judicial district of New Haven. After a jury trial the petitioner was convicted of assault in the first degree in violation of General Statutes § 53a-59(a)(1) and § 53a-8, carrying a pistol without a permit in violation of General Statutes § 29-35, and risk of injury to a child in violation of General Statutes § 53-21(1). On September 5, 1997 the petitioner was sentenced by the court (Licari, J.) to a total effective sentence of thirteen years in prison. The convictions were affirmed on direct appeal. State v. Woods, 58 Conn.App. 816 (2000), 257 Conn. 761 (2001). The petitioner remains in the custody of the respondent pursuant to said sentence. The petitioner was represented at trial by Attorney Christopher DeMarco.
The petitioner, by counsel, filed a three-count amended petition for a writ of habeas corpus on August 29, 2000, and the respondent filed a return on October 3, 2000. This court conducted an evidentiary hearing on the petition on July 26, 2005. The witnesses were Attorney Robert Berke and Mr. DeMarco.
The Supreme Court opinion stated that the jury reasonably could have found the following facts.
On November 23, 1995, at approximately 2 p.m., a group of young men from the Westville Manor housing complex (Westville Manor) in the city of New Haven walked to the nearby Rockview Circle housing complex (Rockview Circle). The group included Tavarie Atkinson, Vincent Clark, Isaac Long, Keith Miller, Keeshawn Moore and Lawrence Washington. When the group arrived at Rockview Circle, Clark purchased some marijuana.
CT Page 14064-ho
Thereafter, the defendant approached the group and began arguing with Moore. Because there previously had been a conflict between the group from Westville Manor and a second group of men from Rockview Circle, the defendant asked Moore what he and his friends were doing at Rockview Circle. As the defendant was arguing with Moore, Long pulled Moore away. At this point, Atkinson observed the defendant remove something from his waistband. Clark observed that the object that the defendant had removed from his waistband was a handgun. Clark also observed the defendant load the handgun. The members of the Westville Manor group then began to flee. Clark, however, stumbled and fell as he was attempting to flee and, as he was getting up, witnessed the defendant hand the gun to a person identified as Vashawn Lewis. Clark then heard gunshots. While he was running away, Clark heard Atkinson yell that he had been shot. Atkinson eventually arrived home and, thereafter, was transported to the hospital, where he was treated for a gunshot wound to the leg.
State v. Woods, supra, 765.
The three counts allege, respectively, ineffective assistance of trial counsel, newly discovered evidence, and actual innocence. The second count was withdrawn on the record at the commencement of trial. There was no evidence offered in support of the third count and it is not referred to in the petitioner's post-trial brief. The court deems it to have been abandoned.
The first count of the amended petition alleges that the petitioner's incarceration is illegal because the convictions were obtained in violation of his right to effective assistance of counsel, as guaranteed by the sixth amendment to the federal constitution and article first section eight of the state constitution. It is claimed in the petition that Mr. DeMarco was ineffective in that he failed to conduct a sufficient investigation into the legal issues in the case; in that he failed to conduct a sufficient investigation into the witnesses available to support the defense; in that he failed to properly prepare himself for trial; in that he failed to adequately and effectively cross-examine the state's witnesses; in that he failed to properly object and to preserve issues for appeal; and in that he failed to present a proper defense or call any defense witnesses. CT Page 14064-hp
The petitioner is entitled to receive effective assistance of trial counsel.
The petitioner's right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. "The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chace v. Bronson, 9 Conn.App. 674, 678, 564 A.2d 303 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263, 573 A.2d 330 (1990). "In order to prevail in a habeas corpus challenge, the petitioner `must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962)." D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984).' Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989)." Sherbo v. Manson, 21 Conn.App. 172, 180-81, 572 A.2d 378 (1990). "In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal." Magnotti v. Meachum, 22 Conn.App. 669, 674, 579 A.2d 553 (1990); see Biggs v. Warden, 26 Conn.App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).
"`A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . 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 v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989)." Fair v. Warden, 211 Conn. 398, CT Page 14064-hq 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct. 512, 108 L.Ed.2d 514 (1989).
"With regard to the performance component of this inquiry, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Aillon v. Meachum, supra, 211 Conn. 357. "The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct 1558, 71 L.Ed.2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980). "`What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation.' Peoples v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981)." Levine v. Hanson, 195 Conn. 636, 649, 490 A.2d 82 (1985)." Giannotti v. Warden, 26 Conn.App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); see also Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' . . . [C]ounsel is CT Page 14064-hr strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; see also Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Williams v. Warden, 217 Conn. 419, 586 A.2d 582 (1991). Robert Jeffery v. Commissioner of Correction, 36 Conn.App. 216, 218-20.
Although the amended petition alleges six specific areas of alleged ineffectiveness, the only claims made in the petitioner's post-trial brief are that Mr. DeMarco failed to raise various issues because he did not cross-examine the victim, Tavarie Atkinson, and that his cross examination of the attending hospital surgeon, Dr. Thomas Sweeney, was inadequate. There was no credible evidence in support of the other allegations of ineffectiveness as set forth in the amended petition, nor have these claims been pursued in the post-trial brief, and they are deemed to have been abandoned.
At the criminal trial it was the state's theory that after the argument started between the two groups the petitioner pulled a gun from his waistband, loaded it, gave it to Vashawn Lewis, who then fired several shots, one of which struck the victim Tavarie Atkinson in the left leg. In connection with the shooting the petitioner was charged with the crime of assault first degree as an accessory. That was the factual claim which was presented by the state, argued to the jury by the assistant state's attorney, and as charged by the court to the jury.
The petitioner claims in his post-trial brief that Mr. DeMarco was deficient in failing to cross-examine Atkinson because if he had he could have raised several issues. These issues are alleged to concern the transfer of the gun from the petitioner to Lewis, the location of the entry and exit wound on Atkinson's leg, whether at the time of the shooting Atkinson had been smoking marijuana which affected his ability to observe and recall what happened, whether Atkinson "ever really" saw the petitioner with a gun, whether the petitioner was backing away and thus intending to leave the area and deescalate the situation, whether Mr. DeMarco should have used the two statements given by Atkinson in which he said he did not know who shot him to further undermine his credibility, and that Mr. DeMarco should have developed by cross-examination that Atkinson did not identify the petitioner as being involved in the shooting for five months after the shooting, and then gave a statement nearly identical to the statement of another witness, Vincent Clark. CT Page 14064-hs
Mr. DeMarco was admitted to the bar in Connecticut in 1988 and began trying felony criminal cases in 1991. He served as a special public defender from 1992 to 2000 and it was in that capacity that he represented the petitioner. The criminal trial in this case occurred in 1997.
The victim, Atkinson, had given two pretrial statements to the police. In one statement he said in one part of the statement that he saw Lewis take the gun from the petitioner, and in another part of the same statement he said he saw the petitioner give the gun to Lewis. On June 5, 1997, shortly before the trial began, Atkinson deleted from his first statement that he saw Lewis take the gun from the petitioner, leaving in the statement that he saw the petitioner give the gun to Lewis. The petitioner claims that Mr. DeMarco should have cross-examined Atkinson with respect to how the gun was transferred from him to Lewis. However, before the jury in the criminal trial, Atkinson did not testify about seeing the gun transferred from the petitioner to Lewis. At one point he said he "guessed" that he saw the petitioner with a gun. He testified that he did not see who fired the gun and that he did not see Lewis with the petitioner. Mr. DeMarco testified that a tactical reason not to cross-examine Atkinson on that point was to avoid opening the door for the state to offer evidence on redirect concerning the prior statements to the police when the witness had not placed Lewis at the scene, and had not testified that the petitioner gave the gun to Lewis. He felt that by leaving the evidence from Atkinson the way he testified on direct would show that the state was not proving that the crime occurred in the manner claimed by the state. When asked by petitioner's counsel why he did not cross-examine Atkinson concerning the changes made in his statement Mr. DeMarco testified "I decided at that point I have got a victim on the stand who's saying that he did not see a transfer at all between the defendant and Vashawn Lewis and I was probably going to leave it at that."
Although the petitioner in his post-trial brief refers to Mr. DeMarco's decision not to cross-examine Atkinson as a failure to cross-examine the "key witness in the case," a reading of the trial transcript shows that the key witness in support of the state's theory concerning the petitioner's connection to the shooting was Vincent Clark. It was Clark who testified without hesitation that he saw a gun in the petitioner's hand and demonstrated how the petitioner put a bullet in the chamber of the gun. He further testified that he saw Lewis getting the gun from the petitioner, followed quickly by shots being fired, and when he looked back Lewis still had a gun in his hand. Mr. DeMarco extensively and adequately cross-examined Clark. CT Page 14064-ht
The petitioner also claims that Mr. DeMarco should have cross-examined both Atkinson and Dr. Sweeney concerning how the victim could be running away with his back to the shooter and have a bullet enter the front of his leg and exit at the back of his leg. The evidence did not establish that the bullet entered the front and exited at the rear of his leg or that Atkinson was struck while running away. Atkinson testified at one point that when the shots were fired "the way I was facing the gunshot came to me." Atkinson also pointed to the entrance and exit wounds on his leg, they were in a chart in the hospital record that was shown to the jury, and the operative report described the entrance and exit wounds as being on the lateral and medial thighs. Dr. Sweeney described the two wounds as being located "mid thigh and sort of on each side." The location of the entrance and exit wounds was not in serious dispute. The claim by the petitioner that further cross-examination of Atkinson and Dr. Sweeney on this point would have developed relevant evidence which would have been helpful to the petitioner is total speculation.
The remaining issues that the petitioner claims in his post-trial brief should have been raised in a cross-examination of Atkinson allegedly would have had a bearing on his credibility. In view of the limited nature of Atkinson's testimony concerning the conduct of the petitioner, as discussed earlier, the tactical decision not to cross-examine the victim is presumed to be sound trial strategy. What evidence such a cross-examination would have produced is speculative at best and may have had the ramifications on re-direct examination that counsel wished to avoid.
The petitioner has failed to overcome the presumption that Mr. DeMarco's decision not to cross-examine Atkinson was sound trial strategy. As the Appellate Courts have said several times "it is all too tempting for a defendant to second guess trial counsel's assistance after conviction . . ." Jeffrey, supra 219. The petitioner has also failed to prove that the cross-examination of Dr. Sweeney by Mr. DeMarco was deficient under all of the circumstances of the criminal case.
In addition to proving that Mr. DeMarco was deficient in the ways alleged, which the court has found the petitioner has failed to prove, the petitioner must also prove that he was prejudiced by his attorney's performance. "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." Strickland v. Washington, supra, 687. After considering the entire record offered in this habeas trial, the court finds that the petitioner has failed to prove that he was prejudiced as a result of Mr. DeMarco's conduct, as alleged in his post-trial brief. CT Page 14064-hu
The amended petition is dismissed. CT Page 14064-hv