Abernathy
v.
Commissioner of Corr.

Connecticut Superior Court Judicial District of Tolland at RockvilleMay 14, 2009
2009 Ct. Sup. 11732 (Conn. Super. Ct. 2009)

No. CV-05-4000660-S

May 14, 2009


THE COURT: The Court wants to thank counsel and all the witnesses for an orderly presentation of the evidence over the two-day period which commenced on April 7th of this year and concluded today, May 14. The Court has reviewed the exhibits, and in all candor has not read verbatim every word of the voluminous transcripts which have been admitted without objection into evidence; but the Court has reviewed those portions of the transcripts which the Court deems relevant on the claims pled. The transcripts which are in evidence and listed in the evidence inventory include many of the petitioner's exhibits 1 through 17, full exhibits, various trial dates commencing on or about January 21 of 2000 through February 15 of 2000 and post-trial proceedings including sentencing thereafter.

In addition, there were a number of documents submitted into evidence, including statements which the Court reviewed in full, including Petitioner's 18, a voluntary statement given by Mr. Dixon on October 27, `98; Petitioner's 19, the voluntary statement by Anthony Cannon given on October 23 of `98; and also Petitioner's 20, which was a statement given by Mr. Cannon, a second statement on October 26 of `98. In addition, the Court did review and will quote the factual summary set forth by the Appellate Court in the matter of State v. Abernathy, Appellate Court docket number 22198, release date of October 15 of `02. That was Respondent's Exhibit A in full.

Also admitted today in evidence was a waiver of rights form regarding Mr. Anthony dated October 27, `98. In addition, Respondent's C was a Supreme Court decision from the case of State v. Dixon. Respondent's D was the Appellate Court decision in the matter of State v. Dixon and I believe D was a sentence review of State v. Dixon.

In review of this claim — obviously the pleadings set forth the claims set forth by the petitioner under the case of Lebron v. The Commissioner. The petition, the essential allegations of which were set forth in the second amended petition, dated June 18, `07, sets forth certain claims, and the Court will make clear in its findings of fact. The following are findings of fact based upon the allegations set forth, which allegations are admitted on the part of the respondent as evidenced by the return filed on March 20th of `09.

The Court makes the following findings:

The petitioner, Mr. Eddie Abernathy, was the defendant in a criminal case known as State v. Eddie Abernathy, docket number CR-98-0529435, in Part A at Hartford, Connecticut. The petitioner was arrested on October 28, 1998 and charged by way of information with one count of felony murder in violation of Connecticut General Statute Section 53a-54c, one count of robbery in the first degree in violation of Sections 53a-49 and 53a-134, and on a third count of conspiracy to commit robbery in the first degree in violation of Connecticut General Statutes Section 53a-48, 53-134.

This Court further finds on December 4, 1998, Mr. Anthony was represented by Attorney John Forrest, and Mr. Forrest was trial counsel for Mr. Abernathy, waived the petitioner's right to a probable cause hearing.

The Court further finds that on January 5, 2000, jury selection began and concluded on or about January 18 of 2000. On or about January 24, 2000 a jury trial commenced. At that time, the petitioner stood trial along with a co-accused, Mr. James Dixon.

After a trial by jury on or about February 15 of 2000, the petitioner was found guilty of felony murder, robbery in the first degree, and conspiracy to commit robbery in the first degree.

The Court notes that Mr. Dixon was convicted of all charges except for a count of murder. The Court finds that on June 6, 2000, the presiding judge, the Honorable Michael Hartmere, sentenced the petitioner to a term of imprisonment of fifty years on count one, twenty years on count two, and ten years on the third count, each sentence to run concurrent with each other for a total effective sentence of fifty years to serve.

The Court finds that the petitioner appealed the judgment in the matter of State v. Abernathy unsuccessfully to the Appellate Court.

The Court finds that Mr. Forrest as trial counsel was employed as a special public defender. The Court finds that thereafter on his appeal the petitioner was represented by Attorney Neal Cohen of the Office of the Chief Public Defender's Office.

The Court finds that at the time the petitioner commenced this action that he was in the custody and remains in the custody of the Commissioner of Correction pursuant to a judgment in docket number CR-98-0529435.

Allegations are set forth in paragraph twelve of the petitioner's second amended complaint. Where it begins at paragraph twelve, the petitioner alleges that his trial attorney did not adequately seek severance of the petitioner's case with that of the codefendant James Dixon's case, and before detailing the specific allegations of the complaint and how the evidence bears upon each allegation, the Court will for the purpose of the record, indicate further facts as summarized by the Appellate Court in the matter State v. Abernathy in a decision offered by Judge Bishop, wherein Judge Bishop notes that the jury could have reasonably found the following facts — and I'm quoting from the Appellate Court decision — "On the evening of October 21, 1998, the defendant, James G. Dixon, Anthony "Tone" Cannon, Raymond "Flip" Hite, Michael Holmes, Tamica Easterling, Lucretia Williams, and others gathered at Tashika "Chicken" Contrell's apartment at 99 Willis Street in Hartford, where they drank liquor and smoked marijuana. Later that evening Holmes led the defendant Dixon, Cannon, and Hite into Contrell's bedroom, shut the door and proposed that they commit a robbery. After some discussion the five men exited the bedroom and entered the kitchen where they drank more liquor and smoked more marijuana. A while later at about ten p.m. the defendant Dixon and Cannon left the party together. The defendant had in his possession a black 9 mm. handgun and Dixon had in his possession a small chrome .25 caliber handgun. Three men entered a black Honda Prelude, which Cannon had acquired earlier that day and drove throughout Hartford, stopping to buy gasoline on Washington Street and to buy juice on Brook Street. Thereafter, the three men while driving on Green Street saw a man in the distance walking in the middle of the road. The defendant who was driving drove the Honda to the side of the road, conversed briefly with Dixon and turned off the engine. He then turned toward Cannon who was in the backseat, handed him a mask, and the black 9 mm. handgun and told him to rob the man walking in the middle of the road. Cannon accepted the handgun and put on the mask. He and Dixon exited the Honda together. As he approached the man, Cannon said, `What Up?' The man, Baze Burt Privette recognized Cannon's voice and responded, `Tone?' Cannon hesitated and asked Privette for a cigarette. Privette replied that he did not have one. Cannon then backed away from him, but Dixon, who had been standing to Cannon's right, did not. Rather, he drew a chrome .25 caliber handgun, held it to Privette's head and ordered him to `run everything.'

He then grabbed Privette and led him into an alley nearby. Halfway down the alley, Dixon shot Privette in the head killing him. He searched Privette's pockets and then ran out of the alley. He and Cannon entered the Honda and told the defendant what had occurred. The defendant ordered them to give him the mask and guns and to keep quiet. Dixon and Cannon complied.

Three men then drove away, toward the vicinity of Capital Avenue and Lawrence Street. All three men later were arrested and charged in connection with the incident. The defendant was charged with felony murder, aiding and abetting, robbery in the first degree and conspiracy to commit robbery in the first degree."

The jury returned a verdict guilty as to all counts and the Court rendered judgment accordingly, and this Court already has noted the sentence handed out by Judge Hartmere.

Back to the allegations, and before I review the allegations I'll review some standard boilerplate accepted law in this area of habeas corpus. The petitioner here has claimed ineffective assistance of counsel on the part of his trial attorney in a number of ways.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, (1984). The United States Supreme Court enunciated two requirements that must be met before petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the petitioner must show that counsel's performance was deficient; second, the petitioner must show that the deficient performance prejudiced the defense. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Santiago v. Commissioner of Corrections, 90 Conn.App. 420, pages 24 to 25. Cert was denied in that case, a 2006 decision.

The petitioner claiming ineffective assistance of counsel must prove deficient performance and prejudice, Ledbetter v. Commissioner, 275 Conn. 451, 458, a 2005 decision, cert. denied, 546 U.S. 1187, (2006).

To prove deficient performance, the petitioner must show that defense counsel's representation fell below an objective standard of reasonableness. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable, professional judgment. Omitting the quotation marks as cited by Ziel v. Commissioner of Correction, 89 Conn.App. 371, page 376. Cert. was denied, 2005 Appellate Court decision.

To prove prejudice the petitioner must establish that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different. And that's the Ledbetter case at page 458.

To the extent here there are claims of failure to object to certain evidence in this matter, the Court notes the decision of Levine v. Hanson. The decision of a trial lawyer not to make an objection as a matter of trial tactics, not evidence of incompetency, Levine v. Hanson, 195 Conn 636, 648, a 1985 decision. There is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and as a result of the exercise of professional judgment, Iovieno v. Commissioner of Correction, 67 Conn.App 126, 128, a 2001 decision of the Connecticut Supreme Court.

To the extent that the petitioner here sets forth claims of inadequate cross-examination, "An attorney's line of questioning on examination of a witness clearly is tactical in nature; as such the Courts will not in hindsight second guess counsel's trial strategy," State v. Drakeford, 63 Conn.App 419 at page 427, a 2002 decision.

Moving on to paragraph twelve of the second amended petition, the petitioner alleges that trial counsel did not adequately seek the severance of the petitioner's case with that of his co-accused, James Dixon. The petitioner claims the potential for prejudicial evidence to spill over to the petitioner's case was great.

In attempting to prove his claim, the petitioner presented testimony from Mr. Abernathy and also a professional attorney/witness, Mr. Leon Kaatz. In the course of this case, the Court obviously heard the testimony of the trial attorney, Mr. Forrest, called by counsel for the respondent.

It's clear from a review of the record in the transcripts and in the evidence, that there was a wealth of information that was made available to trial counsel and was in fact, reviewed, by Mr. Forrest. The Court accredits Mr. Forrest's testimony that there was an open-file policy during the period of time he represented Mr. Abernathy in Hartford, which policy provided that trial counsel would be able to review and in fact, did review and have access to all police reports, statements and material in the State's file.

This Court finds that Attorney Forrest, in fact, availed himself of that opportunity. In the course of doing so, Attorney Forrest obtained copies of statements of the three individuals allegedly involved in these crimes, specifically petitioner's 18, 19 and 20, for clarity, 18 being the statement of Mr. James Dixon, 19 and 20 being the two statements provided by Mr. Anthony Cannon, also significantly, a statement obtained by the petitioner himself, Mr. Eddie Abernathy, on or about October 27 of `98, which consists of a two-page statement, which is typed. Counsel reviewed these, considered these in the preparation of his case and his strategy and also employed the services of an investigator from the Office of the Public Defender. Counsel met with the client, discussed the evidence, the strengths and weaknesses, discussed strategy with his client, and at no time pursued a motion to sever or separate the trial of the matter of State v. Abernathy from State v. Dixon. The Court credits testimony of Attorney Forrest in this regard.

The Court also accredits the significant testimony from Attorney Forrest on the thought process and reasoning strategically on the reason for not seeking severance after tacitly considering the same. And specifically the Court accredits Attorney Forrest's knowledge of the substance of Mr. Dixon's statement, as well as Mr. Abernathy as well Mr. Cannon. And to paraphrase the testimony of Attorney Forrest, it is clear from the record that the account of the events of the night in question were substantially similar between Mr. Dixon and Mr. Abernathy.

In fact, with regard to Petitioner's 18, this Court has read the entirety of the statement and will not read into the record but suffice to say the takeaway from Mr. Dixon's statement is that Mr. Abernathy was totally blameless and not involved in any criminal enterprise on the evening of the event, that Mr. Abernathy, indeed, was placed at the scene, having been identified as the driver of the Honda Prelude, Mr. Dixon the front seat passenger and Mr. Cannon, also known as "Tone," in the rear seat.

At no point in the statement is it inferred that Mr. Abernathy, from review of Petitioner's 18, participated in was complicit in the planning or execution of any robbery or homicide of the eventual victim.

On the contrary looking at Petitioner's 19 and 20, Mr. Cannon in his statements pointed the finger of blame at both Mr. Dixon and Mr. Abernathy, and more particularly, identified Mr. Dixon as the shooter where Mr. Dixon as was argued by the respondent identified Mr. Cannon as the shooter.

The attorney for strategic purpose identified a number of reasons not to seek severance, not the least of which was the probable fact that neither defense between Mr. Dixon and Mr. Abernathy was adverse to one another. They were in the sense united and other than benign mere presence, there was nothing inculpatory on the part of Mr. Dixon's statement as regard to Mr. Abernathy. Counsel identified a number of trial strategy reasons to team up resources with Mr. O'Brien who represented Mr. Dixon. This would double the number of challenges of jury selection, not an insignificant factor in the process of selecting a criminal jury on a case of this magnitude.

There was nothing adverse, nothing conflicting in the defenses between Mr. Dixon and Mr. Abernathy.

The Court realizes and accepts the evidence that at some point during the trial of the case, Mr. O'Brien on the part of Mr. Dixon moved for severance unsuccessfully. This Court cannot read into the mind of Mr. O'Brien as to why strategically he saw fit on behalf of Mr. Dixon at the time to move for severance. What's more significant is the Court, Judge Hartmere, denied the motion even at the time of trial.

The Court accredits the attorney's testimony that he reviewed all the reports, having concluded there was nothing adverse between Mr. Dixon and Mr. Abernathy. There was little likelihood of any evidential spillover of negative evidence admissible on Mr. Dixon to spillover to Mr. Abernathy.

This Court will not engage in speculation as to what the jury considered in fact, notwithstanding the presence of juror notes. This Court must presume that the jury followed the Court's instruction, and there was limiting instruction; and the Court is getting ahead of itself a bit regarding the admissibility of the Dixon statement. This Court tacitly finds there was limiting instruction given by the trial judge, Judge Hartmere, at the time, and there's no reason for this Court to presume the jury did not follow the Court's instruction.

The trial attorney, Mr. Forrest, also realized that at the time he took on this case, Mr. O'Brien was a veteran trial lawyer. Mr. Forrest himself had tried a number of felony cases to verdict, not the least significant of which was a matter of State v. Arroyo, which Mr. Forrest tried to a not guilty verdict. This case involved a number of individuals, charged together in a murder. Mr. Forrest did not seek severance, and as a result of that decision and certainly other things in the course of that case, about which this Court is unaware, he obtained an acquittal.

This Court in listening to the testimony of Attorney Kaatz does not accredit the testimony of Mr. Kaatz, who testified without exception if faced with co-accused in the context of a felony murder case, that it would be incumbent upon trial counsel to move for severance.

Firstly, there is so many variables that can occur, such as the circumstance here where the co-accused, Mr. Dixon, was not adverse to Mr. Abernathy. In addition, it appeared to this Court that Mr. Kaatz was framing his opinion based upon a very limited and finite set of facts not recognizing the other evidence that occurred in the trial of the case implicating and inculpating Mr. Abernathy. This included the testimony of Lucretia Williams that Mr. Abernathy and others were at an apartment, and Mr. Cannon known as "Tone," and Mr. Dixon, known as "Gene" where these individuals had been drinking alcohol and smoking Ille, marijuana laced with PCP — excuse me — marijuana laced with formaldehyde, and there was discussion about a potential robbery.

In addition, given that testimony and also the testimony of Ms. Debnan — I'm probably mispronouncing her name — at trial — Ms. Debnan provided testimony against Mr. Dixon regarding possession of one of the weapons used here; and again, the Court recognizes the limiting instruction. If I recall the testimony and the evidence in this case, Ms. Debnan was not able to identify Mr. Abernathy, to quote the trial attorney, "They (Dixon and Abernathy) were arguing the same thing. That was a strategic decision."

The Court accredits Mr. Forrest's testimony that he informed Mr. Abernathy of this and Mr. Abernathy consented. The Court does not accredit the testimony of Mr. Abernathy that the jury was out for a five-day period, came back with questions or was distressed upon rendering a verdict, does not leave this Court to speculate on any aspect of prejudicial spillover. Again, having read Petitioner's B and testimony of Mr. Dixon and Mr. Cannon, the Court cannot conclude that there was spillover prejudicial effect, where there was other ample evidence of inculpability upon which the finder of fact, the jury, would return a verdict of guilty.

The Court finds the allegation in paragraph twelve unproven. The Court is familiar with and has read the decision of the United States v. Bruton, and actually the case is captioned Bruton v. The United States, 391 U.S. 123, 88 S.Ct. 1620, 1968 decision of the United States Supreme Court, wherein the Court held because of the substantial risk that the jury despite instructions to the contrary looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of a confession in that case in a joint trial violated the petitioner's right to cross-examination secured by the confrontation clause of the 6th Amendment. The Supreme Court tacitly overruled the decision of Deoli v. The United States. But for reasons already stated, there were tactical logical reasons to not seek severance formally by way of motion and ruling on the part of the trial attorney.

Suballegation thirteen in count one alleges that the trial attorney did not adequately explain to the petitioner the range of sentences that would be available to the Court in the event the petitioner was convicted as charged at the trial. The petitioner alleges that trial counsel did not communicate effectively with the petitioner with regard to the acceptance of a pretrial offer in preparation of the defense.

The trial counsel did not effectively advise the petitioner. I will address each of these claims as contained in paragraph thirteen. This Court credits the testimony of Attorney Forrest that he advised the petitioner of his exposure at the time of trial. This Court accredits the testimony of Attorney Gailor with respect to the on-record rejection of the offer — the plea offer, the one plea offer which was clearly made by the State at some point in the proceedings for twenty-five years to serve on murder, and that rejection was done on the record as was the custom at Part A at the time.

This Court tacitly concludes that it is unable to conclude there was any offer, so-called contingent upon Mr. Dixon accepting an offer of twenty-two years to serve, which offer would have involved fourteen years to serve for Mr. Abernathy. The Court accredits that the testimony by Attorney Gailor, as Senior Assistant State's Attorney, who at the time in Part A had substantial trial experience and pretrial experience handling an excess of thousands of cases where the State's Attorney clearly referenced informal discussion, as he termed it, if Mr. Dixon took twenty-two years on the plea, then there would be further discussion from Mr. Abernathy, that this Court makes no finding that any specific tacit conditional offer was made by the State's Attorney offering Mr. Abernathy fourteen years if Mr. Dixon accepted twenty-two. The Court does not accredit the testimony of Mr. Abernathy. The Court understands Mr. Abernathy could be a convicted felon. The Court views his testimony as self-serving. This Court does not accredit the testimony of Attorney Forrest to the extent that Attorney Forrest may have implied there was such an offer and this Court finds Attorney Forrest's testimony in that regard to be somewhat vague.

This Court does not find the allegation in paragraph thirteen that trial counsel did not effectively communicate to the petitioner with regard to the acceptance of a pretrial offer. This Court understands and accredits the testimony of all witnesses who said Mr. Forrest was somewhat abrupt. The conversation was short.

This Court acknowledges that when a case is at trial, it would not be surprising at all for the trial judge, then Judge Hartmere, to not in any way open the door to plea negotiations. It would be improper and inappropriate to suspend a trial for the purpose of reopening plea negotiations once evidence has commenced, to suspend a trial for any length of time other than an accept-or-reject scenario where a defendant is explained the consequences of the plea. And for reasons already stated, the only offer on the table was the twenty-five years on murder and no other offer. This Court finds the allegation in paragraph thirteen to be unproven.

With regard to the allegation in paragraph fourteen, trial counsel failed to adequately investigate the circumstances of the petitioner's statement to police. Said statement allegedly occurred while the petitioner had been incarcerated. The Court finds an absence of evidence on that issue. The Court does not accredit the testimony of Mr. Abernathy. In evidence is a waiver of rights; in evidence is a statement signed by Mr. Abernathy which is Respondent's B.

Notwithstanding the testimony of the petitioner that he, I believe, is dyslexic or has some type of reading impairment, the Court notes the term I have read to be circled on each page of the statement an initial — with the initials of EDA, which the Court refers as Mr. Abernathy's initials.

Indeed the Court notes that Petitioner's B states that Mr. Abernathy was present at the scene, and that was consistent with Mr. Abernathy's in-court testimony in this proceeding where he testified that he was present at the scene when asked the question.

Subparagraph fifteen alleges that trial counsel failed to object to testimony of a State's witness who was not on the witness list. The Trial Court allowed her to testify despite the State's failure to notify trial counsel of her testimony.

It's not clear whether the petitioner is talking about the testimony of Lucretia Williams or this Ms. Debnan with regard to Ms. Debnan. The Court accredits the testimony by Mr. Forrest and Mr. Gailor that although the witness was disclosed late, there was objection to the witness, which objection was overruled. Counsel was afforded an opportunity to prepare and have a delay in order to prepare for the testimony of Ms. Debnan.

With regard to Lucretia Williams to the extent this claim may involve that witness, it is unproven. Subparagaph sixteen alleges that trial counsel failed to properly cross-examine the State's witnesses. This Court has reviewed the transcript of the proceeding and find no deficiency in the cross-examination of the State's witnesses. Indeed the issues of bias, interest, prejudice, and motive to fabricate was explored by Mr. Forrest.

With regard to Mr. Cannon, in particular, counsel conducted a rigorous cross-examination.

Subparagraph seventeen alleges that trial counsel did not adequately investigate the factual basis for impeaching the prosecution witnesses. Although somewhat vague, this Court does not conclude based upon the evidence in this record, there is any insufficient preparation of impeachment material regarding any particular witness.

The Court notes that the petitioner claims that Mr. Cannon's testimony was perjured. That is a matter of argument. And again, even if this believed, there was other ample evidence upon which the jury could return a verdict of guilty for Mr. Abernathy.

This case anecdotally at most does not rest or fold on any one piece of evidence, but results from a tapestry weaved by the State of a number of witnesses, forensic evidence, a gun found in the sewer, historical evidence of dumping of bullets — different pieces of evidence which link the conspirators to one another. Notwithstanding the lack of incrimination in the Dixon statement, Petitioner's 18 in this proceeding, there was testimony at trial about historical events between many of the individuals in this case, some not mentioned by the Court, including the victim known as Burt which the jury could have considered certainly in reaching its verdict.

Paragraph twenty alleges that trial counsel did not adequately investigate the factual basis concerning the defense version of the incident giving rise to the charges. The reasons are he indicated in addition to those reasons of what this Court considers a substantive and substantial investigation. The record is clear, and the Court accredits both the testimony of Mr. Abernathy and Mr. Forrest that Mr. Abernathy and Mr. Forrest met on a number of occasions to discuss aspects of the case and to pursue leads and witnesses. And what's clear is that the strategy of the petitioner at the time of trial was to put himself at the location, again, as an uninvolved person lacking any criminality or criminal intent. And the caselaw as was quoted, in order to be guilty of felony murder or conspiracy, you must show something more than a mere presence. And the trial attorney determined after the testimony of Mr. Dixon that there was nothing to be gained — and I typed verbatim with interest the testimony of Attorney Forrest when he testified that he viewed the Dixon testimony to have gone very well — all the good things you want are in through Dixon — the attorney testified he explained to his client. You could only hurt yourself. Dixon was more believable than Cannon. You have nothing to gain and everything to lose if you testify. The attorney states he explained that to Mr. Abernathy, and it was Mr. Abernathy's decision to not testify and exercise his right against self-incrimination. The jury was told not to hold against the defendant his exercise of his right to silence. This Court will not infer that the jury did not follow the judge's instruction on that issue, or put another way, even if the Court did not instruct the jury, this Court will not make an inference that prejudice obtained to Mr. Abernathy where Mr. Cannon and Mr. Dixon both testified. It is a sound trial strategy for a criminal defense attorney having concluded that the evidence is in that is helpful to not recommend a defendant testify, where as in this case, testifying would have opened many doors, not the least of which is Mr. Abernathy's statement and his criminal history, which included felony convictions.

It is understandable, and this Court accepts and accredits again the testimony of Attorney Forrest, why he would not object to the testimony of Mr. Hite that he knew Mr. Abernathy as a drug dealer when again it is clear, the strategy was that Mr. Abernathy went down to that location with others to buy drugs, that even viewed in the worst scenario does not equate with conspiracy to commit a robbery or murder.

So it's a weighing of lesser of evils, and that process, an evaluative and qualitative strategic decision, was made by the trial attorney. This Court cannot conclude ineffective assistance of counsel of constitutional dimension based upon that thought process.

Finally, on this note, it is not uncommon for defense strategy to include not calling the defendant, not calling one witness, to base a defense entirely upon the cross-examination of the State's witnesses. The burden was and remains on the government, in this case, the State of Connecticut to prove each and every essential element in the offenses charged beyond a reasonable doubt.

And, as juries are told, it is not for the defendant to prove his innocence. The Court, again, will not presume the jury did not apply the law as was their sworn oath to do so.

Paragraph twenty-two alleges that trial counsel did not adequately investigate the law as it related to the petitioner's case. This Court finds that the claim to be unproven. If the petitioner is attempting to imply that counsel was not familiar with Bruton v. The United States, this Court tacitly accredits the testimony of Attorney Forrest that he was familiar with the case and did consider severance and dismissed the idea for the reasons already indicated.

Subparagraph twenty-four alleges trial counsel did not adequately present the petitioner's defense. This Court finds that claim to be unproven as a basis for this petition. The Court notes he was found guilty, so to the extent there was not an acquittal that's accurate; but as far as any conduct of counsel becoming part of that decision, this Court has no basis to conclude that there was any deficiency on the part of the trial attorney resulting in the outcome at trial.

Paragraph twenty-five alleges trial counsel did not adequately object to the introduction of the statement of the co-defendant, James Dixon, into evidence in violation of Bruton, in Bruton v. The United States.

For the record, in the event of an appeal, the Court will do what it did not intend to, I'm going to read the entirety of the Dixon statement into the record. This is the statement of Mr. Glen Dixon, and the purpose in doing so is to illustrate the benign aspect of any statements or reference to Mr. Abernathy with a lack of inculpation. That being so, introduction of the statement was consistent with the chosen trial strategy. They see Mr. Abernathy there with Mr. Dixon and Mr. Cannon for perhaps the purpose of buying drugs, but the statement is helpful to Mr. Abernathy.

The statement says as follows — and I'm reading the entirety — "I, James Glen Dixon, of 140 Rush Street, Apartment 134S, Hartford, Connecticut, I am at the Hartford Police Department giving this statement to Detective Jim Rovella and Detective Tim Pitkin. I know I'm under arrest for felony murder and robbery charges. I have then read my constitutional rights. And I signed the form agreeing to talk to detectives. I lived in Hartford Connecticut until I was twelve years old. I moved in 1989 to Alabama, where I was raised. About one month ago, I came back to Connecticut to take care of some business. I was staying at my cousin's house in Hartford on Broad Street where I was arrested tonight. Last week about Wednesday or Thursday I was with my cousin, Eddie Jr. and `Tone.' Eddie Jr. was driving a black Honda Prelude, and I was in the front passenger seat; and `Tone' was in the back of me on the passenger side. I don't even know whose car it was. `Tone' said the car was his or someone let him use it. I don't know the areas where Eddie Jr. drove, but `Tone' was looking to buy some weed. We checked two streets, but there was no one around. `Tone' said he knew a place. Eddie Jr. parked the car and stayed in the car. `Tone' wanted me to go with him because it was a bad neighborhood, and there was people being jumped on, meaning people being robbed. I got out of the car with `Tone.' I leaned back into the car and said something to Eddie Jr. while `Tone' walked ahead of me. We walked around the corner and `Tone' seen a guy talking on the street. `Tone' walked up to the guy, and they were talking because `Tone' knew the guy. I walked up on some step to the building. `Tone' had a hat on that I call a `toboggan.' It was a knit hat that came down. I guess they didn't want to do their business on the street, so `Tone' and the guy walked to the side of the building that I was standing on the front steps too. I heard them talking but didn't know what about. I heard the guy yell out `Tone's' name and then I heard the gun go off. I didn't know that `Tone' had a gun, but I didn't have one. I froze on the steps, and I saw `Tone' run past me. I started to run also because there was nothing I could do. We ran back to the car and `Tone' got into the car first and got in the backseat. I got in the front seat of the car. I told Eddie Jr. something bad had happened. `Tone' didn't say too much. `Tone' said he needed the car. Eddie Jr. drove close to DP (Dutch Point) and got out of the car. `Tone' took the car and left. About fifteen or twenty minutes later `Tone' came back to DP. `Tone' said the police had chased him and he had ditched the car. Afterwards, `Tone' told me he tried to burn the car but he didn't have no more matches. We split up after that. Later, I heard that `Tone' had been arrested for murder one and he had involved Eddie Jr. and me. I heard that `Tone's' girlfriend had been arrested, too. I heard that the police had arrested someone else with guns involving this case. The night the police came knocking on the door to Apartment 134S on Broad Street I was in the bedroom with a female friend of mine. I panicked and opened the window and then dove out of the window naked. The police were waiting for me. When I got to the Hartford Police Department I spoke with Detective Jim Rovella and Detective Tim Pitkin. When I first talked with them, I didn't tell them the entire truth. Detective Rovella asked me what I was wearing that night? I was wearing a black and blue sweater, bluejeans, Tommy Hilfiger hat and some sneakers. This statement is all true."

And it's signed by Mr. Dixon, and he initials the language which is State's — I've had the statement read to me, which is circled. So actually the statement by Mr. Dixon doesn't implicate Mr. Abernathy even purchasing drugs. It was I believe `Tone' who wanted to buy weed, is how Mr. Dixon put it. So there's nothing in the statement which in any way inculpates Mr. Abernathy.

That being so, this Court will not find ineffective assistance on any failure on the part of Mr. Forrest to not object to the introduction of the statement that was read into the record. This again, was consistent with the chosen strategy.

Paragraph twenty-six alleges that trial counsel did not allow petitioner to testify in his own defense. Trial counsel claimed an aversion to the jury becoming aware of the petitioner's criminal record. This Court finds this claim to be unproven. The Court accredits the testimony of the attorney in that there was discussion, and it was Mr. Abernathy's decision and his alone to chose to not testify.

This Court appreciates the tactical reason advanced by the trial attorney for Mr. Dixon to not testify. The Court also accredits the testimony that at the time Mr. Abernathy was approximately twenty-two years of age and likely under the rigorous cross-examination of Mr. Gailor, whom the Court had occasion to observe today. It's very possible Mr. Abernathy would have been highly discredited and any gain sought to be advanced would be far outweighed by the damage done by Mr. Abernathy testifying.

There's no basis to conclude that the trial attorney in any way prevented Mr. Abernathy from testifying. The Court finds that it was a joint decision and ultimately Mr. Abernathy's to choose not to testify in view of the case at the time through the eyes of the parties at the time, not in hindsight.

Clearly, the jury became aware of alleged bad acts on the part of Mr. Abernathy in the context of Mr. Hite's testimony that he knew Mr. Abernathy as perhaps a drug dealer. But it's notable that the petitioner and co-accused, for that matter, none of them stood trial for any drug-related offenses in this case.

This Court does not find the allegations in twenty-eight, twenty-nine to have been proven. The allegation of twenty-eight is that trial counsel was not competent. This Court specifically finds that Attorney Forrest approached this case in a professional manner and viewed the evidence, obtained the evidence, reviewed it with his client, discussed trial strategy and cannot be considered incompetent in any way that was established by this record by a preponderance of the evidence.

Allegation twenty-nine alleges trial attorney did not within the range of competence display by lawyers with ordinary training and skill, this Court finds that claim to have been unproven.

By the same token, the Court finds unproven allegation number thirty, that there was a reasonable probability but for trial counsel's errors and admissions, petitioner's trial would have been different. This Court specifically does not find deficiency proven under the Strickland analysis, and therefore, need not get to the issue of prejudice for the reasons already stated.

With respect to allegation thirty-one, that claim that he was abandoned in that alleges that but for trial counsel's acts and omissions it was reasonably probable that the proceedings in the Appellate Court would have been different, this Court has no basis to make such a finding just to find the evidence in the record.

This Court pursuant to the allegations in paragraphs thirty-two, thirty-three, etc. does not find any deprivation of any rights to the petitioner as guaranteed to him under the Connecticut Constitution and the United States Constitution, either his right to effective assistance of counsel under the Sixth Amendment or the U.S. Constitution or his right to cross-examination or his right to counsel under Article I, Section VIII of the Connecticut Constitution.

For the foregoing reasons, the Court is denying the petition for writ of habeas corpus. Judgment may enter in favor of the respondent.

I'm requesting that the clerk prepare and the marshal deliver to counsel for the petitioner notice of appeal rights. The record shall reflect the marshal is doing that at this time. I'm requesting a transcript of this on-bench ruling be prepared for my signature to be incorporated into the file as a memorandum of decision and provided to all counsel of record.

I'm also requesting that the petitioner's counsel prepare a judgment file within thirty days. With that, this matter is concluded. The Court is adjourned till ten a.m. Monday morning.

(Court was adjourned.)