Opinion
No. CV 00 0597690
Filed: November 15, 2006.
Memorandum of Decision
The petitioner, Edward Wright, alleges in his petition for a Writ of Habeas Corpus amended for the third time on September 19, 2006, that his convictions were obtained as a result of the ineffective assistance of his trial defense counsel in violation of the Sixth and Fourteenth amendments to the United States constitution and Article first, § 8, of the Connecticut constitution. Specifically, the petitioner claims that trial counsel: (1) failed to properly investigate certain physical evidence through blood testing and (2) failed to adequately cross-examine and impeach the credibility of an eyewitness.
Trial for this matter was on September 19, 2006. Testimony was received from the petitioner and his trial defense counsel, Attorney Claude Chong. Transcripts of the petitioner's criminal trial, as well as other documents, were also received into evidence. For the reasons set forth more fully below, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
Findings of Fact
Based upon a full review of the testimony and evidence, this Court makes the following findings of fact:
1. The petitioner was the defendant in a criminal case in the judicial district of New Britain, under Docket Number CR 97-181, entitled State v. Wright. The petitioner was charged with attempted murder in violation of General Statues §§ 53a-49 and 53a-54a, assault in the first degree in violation of § 53a-59(a)(1), and burglary in the first degree in violation of § 53a-101. Attorney Claude Chong represented the petitioner throughout the criminal proceedings.CT Page 21168
2. The jury could have reasonably found the following facts to be true regarding the underlying offense: "For approximately one year prior to the incident that gave rise to his conviction, the defendant had been romantically involved with Jane Cadorette. About one week before the incident, Cadorette terminated the relationship. Although the defendant and Cadorette had jointly leased an apartment at 6 Park Street (apartment) in Bristol, the defendant had not resided in the apartment for one week prior to the incident. Most of the defendant's personal possessions had been removed from the apartment, and Cadorette had taken all of his clothing to the home of his new girlfriend, Jennifer Long.
Cadorette spent the evening of September 6, 1997, with Verrand Little, the victim, a man with whom she had had a romantic relationship for approximately eight years prior to her relationship with the defendant. The victim spent the night with Cadorette in the apartment. At about 8 a.m. on the morning of September 7, 1997, while Cadorette and the victim were still asleep in the bedroom, the defendant entered the kitchen of the apartment by dislodging a chair that had been wedged under the doorknob. Cadorette awoke and called the police.
The defendant entered the bedroom by breaking down the door, which was locked and also secured with a chair. Upon entering the bedroom, the defendant shouted to Cadorette, 'You got what you wanted, bitch.' The defendant began to fight with the victim. During the altercation, the victim's head hit and broke through a wall, and the doors to a closet were knocked down. The defendant went to the kitchen, where he got a knife and the glass container of a blender. The defendant returned to the bedroom and hurled the glass container at the victim, but did not strike him. The defendant then stabbed the victim several times.CT Page 21169
As the defendant was leaving the apartment, two police officers arrived and ordered him to return to the apartment, where they handcuffed him and placed him on the kitchen floor. The defendant became belligerent, kicking, fighting and screaming invectives and threats at the victim and Cadorette. The defendant said things such as, 'I'll get you,' 'I'll kill you,' 'I should've killed you' and 'I'm going to kill you when I get out.'
Emergency medical personnel who attended the victim found that he had sustained wounds to his hands, shoulder and back. When he stabbed the victim in the back, the defendant also punctured the victim's lung, causing it to collapse. The victim sustained a total of five stab wounds, lost a significant amount of blood and had difficulty breathing. He was removed from the scene by Life Star helicopter." State v. Wright, 62 Conn.App. 743, 746-47, 774 A.2d 1015, cert. denied, 256 Conn. 919, 774 A.2d 142 (2001).
3. After a trial the jury found the petitioner guilty of attempted murder in violation of General Statues §§ 53a-49 and 53a-54a, assault in the first degree in violation of § 53a-59(a)(1) and attempted murder and assault while on pretrial release in violation of § 53a-40b. A judgment of acquittal was entered as to the charge of burglary in the first degree.
4. The petitioner received a total effective sentence of eighteen years incarceration. His conviction was affirmed on appeal.
5. The petitioner testified in his own defense at the criminal trial. He claimed that when he entered the bedroom, Little hit him in the face with a baseball bat and that he staggered out of the bedroom and into the kitchen. When the petitioner saw that Little was coming after him with the bat, he grabbed a knife and glass blender container to protect himself. At some point during the fight, the petitioner dropped the knife. Little was injured in the back by knife when he rolled onto it while it was on the floor. After that occurred, the petitioner grabbed the knife and dropped it on the kitchen floor before he attempted to exit the apartment. The petitioner testified to the same at the habeas trial.
6. Additional facts will be discussed as necessary.
Discussion of Law
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 the legal status of 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 [this] Court as one who is 'innocent,' but on the contrary as one who has been convicted by due process of law." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 422-23, 641 A.2d 1356 (1994).
Deprivation of Effective Assistance of Counsel
In order to prevail on the issue of whether there has been ineffective representation by trial defense counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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." Id., 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." Id. 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 necessarily result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for new counsel to attempt to relitigate the case in a different manner. It is an indisputable fact that many times if one had foreknowledge of certain events, different courses might well have been taken. Thus, "[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." (Internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn.App. 313, 317, 759 A.2d 118 (2000).
I. Blood testing
The petitioner first claims that trial counsel failed to have blood that was found on the baseball bat tested for DNA. At the habeas trial the petitioner testified that when he entered the bedroom Little picked up a baseball bat and hit him in the face. This assertion was the crux of the petitioner's self-defense claim at the criminal trial. The petitioner did indeed sustain a broken nose during the incident; however, the only proof offered at the criminal trial indicating that the injury was caused by a baseball bat came from the petitioner's own testimony. Now the petitioner maintains that had Attorney Chong tested the blood on the bat, the test would have revealed that the blood on the bat belonged to him; further, the petitioner asserts this corroborates his trial testimony.
To prevail on this claim, the petitioner must show that testing the blood would have been helpful to his case. This he cannot do. It was stipulated at the habeas trial that the lab was unable to detect DNA on the bat; thus, the results of the test were inconclusive. Without DNA evidence, the petitioner cannot meet his burden of proof.
II. Failure to adequately cross-examine and impeach witness testimony The petitioner next claims that Attorney Chong was ineffective for failing to effectively impeach Jane Cadorette's testimony with a prior inconsistent statement and felony conviction. a. Deficient Performance Aside from the victim, Verrand Little, Cadorette was the only eyewitness to the incident. At the criminal trial, Little testified that he did not hit the petitioner with a bat during their altercation. His testimony did not waver on this point. The petitioner's testimony was also unwavering; however, he asserted that Little picked up a bat immediately after he entered the bedroom and hit him in the face with it. As mentioned above, the basis of the petitioner's self-defense claim was that he grabbed the knife only because Little attacked him with the bat. Cadorette's testimony did not necessarily support either version of events. She repeatedly testified that she could not remember whether Little picked up the baseball bat and hit the petitioner.A month before the criminal trial, however, Cadorette did not have such a problem with her memory. On January 5, 1999, Cadorette gave a statement to an investigator for the defense. (Pet. Ex. 1.) In this statement Cadorette stated that although she could not recall who started the fight she was sure that Little picked up the bat before the petitioner went into the kitchen to grab the knife. (Pet. Ex. 1.) Attorney Chong did not use this prior statement to impeach Cadorette's testimony.
The statement was typed and signed only by the investigator.
"As an evidentiary matter, evidence of a witness' prior inconsistent statement is admissible to attack the witness' credibility." (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 554, 673 A.2d 1117 (1996); see also Conn. Code Evid. § 6-10(a). "Impeachment of a witness by the use of a prior inconsistent statement is proper only if the two statements are in fact inconsistent." (Internal quotation marks omitted.) State v. Bermudez, 95 Conn.App. 577, 584, 897 A.2d 661 (2006). Inconsistencies may be shown by contradictory statements, omissions, changes of position and denials of recollection. State v. Whelan, 200 Conn. 743, 748-49 n. 4, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).
Attorney Chong testified at the habeas trial that the petitioner's case came down to an issue of credibility. On his cross-examination of Cadorette, Attorney Chong tried many times to elicit testimony regarding Little's use of the baseball bat during the fight. He hit a wall each time with her repeated denials of recollection. Cadorette's prior statement might have been an effective way to discredit her testimony and potentially weaken its influence on the jury. Attorney Chong gave no explanation as to why he chose not to try and use the statement, and this Court cannot find any tactical advantage that would be gained from such a decision. Even if the trial court, in exercising its broad discretion on the matter, decided that the statement was inadmissible, a reasonably competent defense attorney would have at least attempted to utilize the statement for impeachment purposes. Attorney Chong's performance at this point was therefore deficient.
This, of course, assumes that the trial judge would have found the trial testimony of Cadorette to be inconsistent with the statement to the investigator. While the pretrial statement could certainly have been used to refresh her memory (see Conn. Code Evd. § 6-9), however it would not have been available for impeachment or substantive use.
The petitioner next argues that Attorney Chong failed to impeach Cadorette with a prior felony conviction. General Statutes § 52-145(b) allows for the introduction of a prior conviction for the purpose of affecting a witness's credibility, so long as the crime is punishable by more than one year in prison. State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S.Ct. 793, 83 L.Ed.2d 786 (1985); Conn. Code Evid. § 6-7(a). "In determining whether to admit evidence of a conviction, the court shall consider: (1) the extent of the prejudice likely to arise; (2) the significance of the particular crime in indicating untruthfulness; and (3) the remoteness in time of the conviction." (Internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 738, 888 A.2d 985 (2006); see also Conn. Code Evd. § 6-7(a).
A record of Cadorette's prior arrests and convictions was admitted into evidence at the habeas trial. (Pet. Ex. 2.) The record reflects that in December 1989 Cadorette was convicted of larceny in the third degree, a class D felony under General Statutes § 53a-124(c). A class D felony committed on or after July 1, 1981, requires a term of imprisonment between one and five years. General Statutes § 53a-35a(7). Although Cadorette only received a sentence of one year suspended and two years probation for her conviction, larceny in the third degree is punishable by more than one year in prison. It may therefore be used to impeach a witness, provided that the considerations articulated above have been met.
Public Acts 1982, No. 82-271, changed larceny in the third degree from a class B misdemeanor to a class D felony.
Under those considerations, it is likely that Cadorette's conviction would have been admitted by the trial court for impeachment purposes. "[C]rimes involving larcenous intent imply a general disposition toward dishonesty or a tendency to make false statements . . . Consequently, [c]onvictions of this sort obviously bear heavily on the credibility of one who as been convicted of them." (Citations omitted; internal quotation marks omitted.) State v. Askew, 245 Conn. 351, 363-64, 716 A.2d 36 (1998). Here Cadorette was convicted of felony larceny, a crime involving larcenous intent. See id., 364. It is therefore highly relevant to the issue of credibility, the factor on which the petitioner's trial hinged. Indeed, the trial court allowed the petitioner's prior robbery convictions to be admitted for limited purposes based in part on the fact that the required intent implies a propensity for deceitfulness.
Concerning the remoteness of Cadorette's conviction, the Connecticut Supreme Court has "endorsed a general guideline of ten years for conviction or release from confinement for that conviction, whichever is later, as an appropriate limitation on the use of a witness' prior conviction." State v. Skakel, supra, 276 Conn. 738-39; see also State v. Nardini, 187 Conn. 513, 526, 447 A.2d 396 (1982). "[C]onvictions having special significance upon the issue of veracity [however, may] surmount the standard bar of ten years . . ." (Internal quotation marks omitted.) State v. Skakel, supra, 739; see also State v. Nardini, supra, 526. For Cadorette's conviction, there were two factors in favor of admissibility. First, the petitioner's criminal trial was held in February 1999; thus, Cadorette testified at the petitioner's trial within ten years of her conviction. Second, Cadorette's larceny conviction relates directly to the issue of veracity.
Based on the above considerations, it is exceedingly likely that Attorney Chong could have used Cadorette's prior conviction to impeach her testimony. Attorney Chong admitted at the habeas trial that he would normally use prior convictions to discredit a witness; however, he did not provide a reason as to why he failed to do so in the petitioner's case. As discussed above, the outcome of the petitioner's trial was based on the witnesses' credibility. Attorney Chong's representation was therefore deficient for his failure to impeach Cadorette with her prior felony conviction.
Attorney Chong could not recall whether he had the record of Cadorette's convictions at the time of the criminal trial.
The petitioner has, therefore, satisfied the first part of the Strickland test.
b. Prejudice
Although the petitioner has proven deficient performance under the first part of the Strickland test, he must also prove that he was prejudiced by counsel's substandard representation to prevail on his ineffective assistance claim. This, he cannot do.
In the instant case the petitioner entered the transcript of his criminal trial into evidence, allowing this Court to review the evidence and ascertain whether the outcome would have been different had Cadorette's testimony been properly impeached. Based on the circumstances of the petitioner's case, it is reasonable to conclude that the impeachment of Cadorette would have had some impact on the jury. Cadorette's felony conviction would have likely offset any harm caused to the petitioner by the admission of his prior felony convictions. It may have also created for the jury a general lack of trust in her testimony. Cadorette's prior inconsistent statement likely diminished the reliability of her version of events. It is arguable that the statement could have also placed Little's credibility at issue because it directly contradicts his assertion that he did not even touch the baseball bat during his fight with the petitioner. However even if the jury chose to believe that Little did in fact pick up the bat at some point, there was no evidence presented at the criminal trial indicating that he actually hit the petitioner with it.
Cadorette never stated, either in her statement to the investigator or during her testimony at the criminal trial, that she saw Little hit the petitioner with the bat. Moreover, the petitioner's own medical expert testified that his broken nose was more likely caused by a fist than with a baseball bat. (Resp. Ex. J, pp. 304-05.)
With all of that in mind, the jury would be left to determine whose version of events to believe, and it is highly unlikely that the petitioner's version would have been credited over Little or Cadorette's. This is especially true when one considers the petitioner's credibility, which was adversely affected by the outlandish accusations he made against the police officers involved in his case while on the stand and the highly credible testimony of a rebuttal witness presented by the state.
First, the petitioner made various allegations of misconduct against the police during his testimony. The petitioner asserted that Officer Regina Steperd, who responded first to the scene with another officer, planted blood on the knife that he used to stab Little:
[T]hen Officer LaMothe . . . went through the house. And, then he went into my bedroom, and I was — and he said, it's a stab victim in here.
Then Ms. — Officer Steperd [said], yeah, there's a knife in here on the floor with a blade, but there ain't no blood on it. Then she picked the knife up, and she took the knife with her into the bedroom, and then came back out and set it on the kitchen counter, right there where I was leaning at, and then said, oh there's blood on the knife now.
(Resp. Ex. J, p. 238.) He also stated that Detective Charles Gelzinis fabricated most of his voluntary statement and that he never swore to the truth of that statement before signing it: CT Page 21176
[State]: Here's my question to you, Detective Geizinis, it's your testimony today, made this [statement] up. Correct?
[Petitioner]: Obviously he did.
[State]: Okay. And, you [testified] That you never read it, so when he said that he gave it to you to read, he was making that up to. Correct?
[Petitioner]: Yes.
[State]: And, when he said he read it aloud, he was making that up too, right?
[Petitioner]: Right.
[State]: And, then when his supervisor came in, and said that you swore to the truth of that, he was lying too, right?
[Petitioner]: He didn't swear me of nothing.
(Resp. Ex. J, p. 247.) In fact, the petitioner went so far as to claim that that there was a "major conspiracy to frame" him from the beginning of the criminal investigation. (Resp. Ex. J, p. 248.) Certainly, a reasonable jury would question the veracity of the petitioner's entire testimony based on these implausible and inflammatory accusations.
The integrity of the petitioner's testimony was further weakened by the state's presentation of a witness to rebut a portion of the testimony that the petitioner gave during direct examination. The petitioner testified that he had been staying with Cadorette at the apartment the week prior to the incident and only stayed overnight at his friend Warren Brown's house the night before the incident occurred. This testimony was effectively discredited by rebuttal witness Jennifer Long. Long testified that she was the petitioner's girlfriend at the time of the incident and that the petitioner had been staying at her apartment the preceding week. This testimony was consistent with that given by Cadorette regarding the status of her relationship with the petitioner.
Based on the petitioner's damaged credibility and the overall strength of the state's case, it is unlikely that the outcome of the criminal trial would have been different. This Court therefore finds that the petitioner has failed to sustain his burden of proving that he was prejudiced by counsel's deficient performance.
Accordingly, the petition for a Writ of Habeas Corpus is denied. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.