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Perkins v. Warden

Connecticut Superior Court Judicial District of Tolland at Rockville
Jan 23, 2007
2007 Ct. Sup. 1456 (Conn. Super. Ct. 2007)

Opinion

No. TSR CV05 4000777-S

January 23, 2007


MEMORANDUM OF DECISION


Petitioner, Benjamin Perkins, alleges in his petition for a writ of habeas corpus, amended on September 19, 2006, that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States Constitution and Article I, § 8, of the Connecticut Constitution. Specifically, petitioner alleges that counsel: (1) lacked knowledge of and failed to consider the waiver rule in deciding to put on a case for the defense and failed to move to sever the charges against him; (2) failed to move for a mistrial or to strike the testimony of two witnesses due to an erroneous proffer made by the state; (3) allowed the admission of prejudicial information during the defense's case-in-chief; (4) failed to argue the correct grounds for the admission of certain evidence; (5) failed to present favorable evidence in support of petitioner's defense; and (6) made inappropriate statements during closing argument. Respondent denies petitioner's claims and avers that counsel's representation was within the constitutional mandate.

At the commencement of trial, petitioner withdrew counts six and eight of his amended petition.

The matter came before the court in November 2006 for a trial on the merits. Witnesses included Phillip Russell, Christopher Caldwell, Bradford Benton and M. Hatcher Norris. The court finds Russell, Caldwell, Benton and Norris to be generally credible. The court has reviewed and considered the testimony, the exhibits, the parties' memoranda of law and their closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.

While this court finds that Norris testified truthfully, as noted in this opinion, the court does not concur with many of Norris' conclusions as to Russell's performance.

FINDINGS OF FACT

Petitioner was the defendant in a criminal case pending in the judicial district of Stamford/Norwalk. In that matter petitioner was charged with: in count one, manslaughter in the second degree with a motor vehicle in violation of Gen. Stat. § 53a-56b; in count two, misconduct with a motor vehicle in violation of Gen. Stat. § 53a-57 and in count three, evading responsibility in violation of Gen. Stat. § 14-224(a). At all relevant times, petitioner was represented by Attorneys Phillip Russell and Christopher Caldwell.

Docket Numbers CR00091357 S and MV 000429209 S.

Beginning on December 19, 2001, petitioner's criminal matter came before the court for a trial to the jury. In its case-in-chief, the state presented evidence that on November 20, 2000, at approximately 11:50 p.m., Timothy Pazar and Gary LeBlanc, residents of Wilton Road, Westport, Connecticut, heard a loud bang which emanated from Wilton Road. Wilton Road is a windy, hilly road with a speed limit of twenty-five miles per hour and this section had been the site of many prior accidents. Thus Pazar and LeBlanc immediately suspected that there had been a motor vehicle accident.

Within thirty to forty-five seconds, Pazar arrived at the scene of an extensively damaged car resting up against a tree located off the west side of the roadway. Looking into the car, Pazar observed a seriously injured person in the right front passenger seat. There were no other occupants in the vehicle and no other persons present at the scene. Pazar called out in an effort to locate the driver, but received no response.

Shortly thereafter, Westport police and fire services responded and determined that the right front passenger, Michael Novack, had expired. Believing that there was likely another occupant of the vehicle and that the other occupant was likely injured, Westport police and fire officers using thermal imaging equipment conducted a search of the area within a half-mile radius of the accident. They were not, however, able to find the other occupant. Over the next several hours, Westport police processed the accident scene and Wilton Road was reopened sometime after 4:00 a.m.

The follow-up investigation revealed that petitioner was the owner of the vehicle, a BMW, involved in the fatal crash, and that petitioner had been driving the vehicle at the time of the accident. Investigating officers observed that at the time of the collision, the roadway was wet. Westport police accident reconstruction demonstrated that just prior to the accident, the vehicle's speed was approximately fifty-five miles per hour, that the vehicle had failed to negotiate a curve in the roadway and that it had first struck a curb and then a guardrail. The vehicle then left the highway, struck a wooden fence and continued for approximately fifty feet into the woods before finally hitting a tree and coming to rest. There was no evidence that before leaving the roadway, petitioner had applied the brakes of the car. Once the vehicle struck the tree, petitioner immediately extricated himself from the driver's seat and fled into the nearby woods. From the woods, petitioner used his cell phone to call his employer, Steven Habetz, and requested that Habetz come to Westport and retrieve him. Although petitioner was unsure exactly where he was located, based on a series of four phone calls over the next half-hour, Habetz was able to locate him. Habetz described petitioner as bloody and dirty and wearing a suit. It looked to Habetz as if petitioner had been involved in a fight, but petitioner told Habetz that he had been involved in a car accident. Habetz advised petitioner that he needed an attorney. Habetz then took petitioner to Habetz's house in Fairfield where Habetz tried to call an attorney. Habetz further testified that going to Habetz's house was not petitioner's "first choice."

Westport police officer Anthony Giunta testified that the morning after the accident, at approximately 7:30 a.m., he contacted Habetz in an effort to locate petitioner. Habetz told Giunta that at midnight he had received a phone call from petitioner who was looking for a ride. Giunta asked Habetz for petitioner's current location but Habetz did not give him an answer. At Giunta's request Habetz agreed to immediately come to the Westport police department. Giunta waited until 8:30 a.m. for Habetz to arrive, but Habetz did not appear. As a result Giunta called Habetz's cell and home phones, but Habetz did not answer either phone. That same afternoon, Giunta was contacted by Russell and given the suit which petitioner had worn during the accident. The suit coat was sent to the State Police Forensic Science Laboratory. Subsequent testing revealed evidence of Novack's blood and brain matter on the suit coat.

Other investigation revealed that immediately prior to the accident, petitioner had been present at La Cucina, a Fairfield brick oven pizza restaurant, and had been consuming alcohol. Jason Medvegy, a friend of petitioner's, testified that petitioner had arrived at La Cucina at 9:00 p.m. Medvegy further indicated that he sat down with petitioner and Novack. Medvegy testified that while he was there, petitioner had at least one glass of scotch. Medvegy described petitioner as having just come from work and as looking "clean cut." Petitioner, Novack and Medvegy left the restaurant at approximately 10:45 p.m. and stood in the parking lot talking for about fifteen minutes. Thereafter petitioner and Novack got into petitioner's car and petitioner drove away. During cross examination, Medvegy indicated that petitioner was not intoxicated.

The state also introduced evidence that sometime after 5:00 p.m. on November 20, 2000, an unidentified individual was served two beers at the Tavern on Main.

Ralph Fidaleo, the bartender at La Cucina, testified that on the evening of November 20, from 8:30 to 10:30 p.m., he served three scotches to a "G.Q. looking" guy. He further described this individual as a "very clean cut, good lookin' guy, young, early thirties." Fidaleo indicated that it is his custom to pour two ounces of liquor in each drink and that the individual to whom he had served the scotch was not intoxicated.

Joel Milzoff, Ph.D. of the State Toxicology Laboratory testified as an expert witness in the field of toxicology. Milzoff testified that alcohol is a central nervous system depressant. As such it affects the body's reflexes, visual acuity, perception, state of mind, ability to respond to a situation, ability to operate machinery and ability to perform complex tasks. Alcohol acts in a dose response manner, i.e., the more one drinks, the more significant the effect. One dose is equivalent to a twelve-ounce beer or a single ounce of eighty proof liquor such as scotch, vodka or rum. Although one ounce would have only a slight effect on a person's central nervous system, the more one drinks over a period of time, the more detrimental the effect on a person's ability to operate a motor vehicle.

At the close of the state's case, Russell moved for judgment of acquittal (MJOA) as to the offenses charged in the information. As to the manslaughter charge, Russell argued that the state had failed to prove that at the time of the accident, petitioner was under the influence of alcohol in that neither bartender was able to identity petitioner as the person to whom they served alcohol and all other state's witnesses testified that petitioner was sober. Russell's motion was denied by the court. Thereafter, Russell presented the defense case.

For the defense, Virginia Klein testified to petitioner's reputation for honesty, integrity and responsibility. Additionally Paul Medvegy, who was present at La Cucina from 8:00 to 10:00 p.m., testified that he spoke with petitioner who seemed sober.

Thereafter, petitioner took the stand and testified that on November 20, he consumed one beer between 7:00 and 8:30 p.m. at the Tavern on Main, that he arrived at La Cucina by 9:00 p.m. and while there, he had two and one-half glasses of scotch. Petitioner also testified that he, Novack and Jason Medvegy left the restaurant at approximately 11:20 p.m. and stood talking in the parking lot for twenty minutes. Thereafter, petitioner drove Novack from the scene. Petitioner testified that when he left La Cucina, it was drizzling, the roads were wet and he was not driving very fast. Petitioner went on to describe the route he traveled. He indicated that as he drove up Wilton Road, he saw a two hundred pound deer in the roadway approximately fifty to one hundred feet away and that in response, he hit the brakes and turned his steering wheel to the right in an effort to avoid the animal. The next thing petitioner remembered was a loud bang as the car hit a tree. He remembered waking up in the car, calling Novack's name and then being in the woods. Once in the woods, he called "911" to report the accident and then called Habetz to retrieve him. Petitioner indicated that he wanted to return to the scene to find out what happened to Novack but that he and Habetz went to Habetz's house to contact an attorney before talking to anyone else.

Petitioner testified that he suffered a head injury in the accident and was treated at Greenwich Hospital the following afternoon. Petitioner further testified that he was not intoxicated at the time of the accident and admitted that the suit coat in evidence belonged to him.

Habetz testified that when he picked petitioner up, petitioner had a head injury. Petitioner told Habetz that he had been in a motor vehicle accident. Habetz asked petitioner if he wanted to go to the doctor and then took petitioner to Habetz's house.

Thereafter petitioner presented the expert testimony of Kenneth Selig, M.D., a forensic psychiatrist, who testified that based on his review of petitioner's medical records and his interviews with petitioner and Habetz, petitioner had suffered a traumatic brain injury (TBI) in the accident. Selig indicated that as a result of the TBI, petitioner's cognitive abilities were affected in the hours after the accident. More specifically Selig stated that petitioner's thinking capacity, his ability to exercise his usual judgment and his decision making ability were all impaired. Additionally, as part of his investigation, Selig listened to the tape of a "911" call and indicated that he recognized petitioner's voice on the call.

The defense also presented the testimony of Irving Ojalvo, an engineer and accident reconstructionist, who disputed the Westport police's methods and conclusions as to the cause of the accident and who further testified as to his own opinion of the path of petitioner's vehicle, the speed of petitioner's vehicle and the cause of the accident. Additionally the defense presented the testimony of a meteorologist, William Jacquemin, who corroborated petitioner's testimony that on November 20, 2000 at approximately 11:45 p.m., the road surfaces in the area of Wilton Road were wet and the testimony of Howard Kilpatrick, a wildlife biologist with the department of environmental protection, who indicated that while the state's average deer population is twenty deer per square mile, in Fairfield County, the average is forty per square mile. At the close of the defense case, Russell again moved for a judgment of acquittal as to the manslaughter charge. The court, however, reserved decision on the motion. Thereafter in closing argument Russell forcefully and repeatedly argued the shortcomings in the police investigation and in the state's evidence at trial. Russell pointed out inter alia, the unscientific nature of the accident reconstruction, the fact that the police had not bothered to interview the bartenders until one year after the accident, the fact that the state's own toxicologist admitted he could not say that petitioner was intoxicated, the fact that the bartender could not identify petitioner as the person he served and the fact that the bartender was the only witness who testified to three scotches. Additionally Russell pointed out that petitioner had called "911" to report the location of the accident and that Habetz prevented petitioner from going back to the scene because Habetz believed petitioner needed a lawyer.

After the state's rebuttal argument, the court charged the jury. Thereafter, the jury returned a verdict of guilty as to all three counts charged in the information and the court denied the MJOA.

At the habeas trial, both Russell and Caldwell testified that at the time of petitioner's criminal trial, they were unaware of the Connecticut waiver rule. They also testified that as a result they did not counsel petitioner as to the interplay between presenting a defense and the waiver rule. Nor did they make a recommendation to petitioner as to whether to forego a defense in order to appeal the trial court's denial of his MJOA.

"Under the waiver rule, when a motion for [a judgment of] acquittal at the close of the state's case is denied, a defendant may not secure appellate review of the trial court's ruling without [forgoing] the right to put on evidence in his or her own behalf. The defendant's sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state's evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto. The defendant then runs the risk that the testimony of defense witnesses will fill an evidentiary gap in the state's case. The waiver rule, therefore, forces the defendant to choose between waiving the right to [present] a defense and waiving the right to put the state to its proof. [State v. Rutan, 194 Conn. 438], 440-41." State v. Perkins, 271 Conn. 218, 229 (2004).

After the denial of Russell's first MJOA and before putting on any defense, Russell and CaldwelI discussed with petitioner and petitioner's family the issue of whether to put on a defense case. After doing so, a decision was made to put on the defense outlined above. Russell believed the defense had good evidence from several people who would testify that petitioner was not intoxicated. Further to rebut the state's inference of flight they had the testimony of Habetz and Selig regarding petitioner's head injury. Additionally to undermine the state's theory as to the cause of the accident, they had a series of witnesses as to cause. As outlined above, petitioner testified to the presence of a deer in the roadway, a defense accident reconstructionist disputed the state's reconstructionist's conclusions and a wildlife expert testified as to the deer population in Fairfield County. At the habeas trial, Russell indicated that the only person who could testify to the presence of a deer on Wilton Road at the time of the accident was petitioner, thus necessitating his testimony. Russell and Caldwell both admitted that they never considered filing a motion to sever the various counts of the information. Russell conceded that the evidence as to all three counts came from the same transaction and that evidence of consumption of any alcohol by petitioner was relevant to each count charged. Russell also correctly stated that for a defendant to prevail on a motion to sever, he would be required to demonstrate that any prejudice to him outweighed any of the numerous other factors which the court was allowed to consider.

Benton testified at the habeas trial that he was present at La Cucina when petitioner was there on November 20, 2000. Benton indicated that he had spoken to petitioner, that neither petitioner's speech, nor his motor skills appeared to be affected by alcohol and in Benton's opinion, petitioner was not intoxicated. On cross examination, Benton indicated that he left La Cucina before petitioner and was unable to say what petitioner had to drink after he left.

Attorney M. Hatcher Norris testified as an expert witness in the field of criminal defense practice and the standard of care required of a Connecticut defense attorney. In preparation for his testimony, Norris reviewed, inter alia, the transcript of petitioner's entire criminal trial and the opinion of the Connecticut Supreme Court in petitioner's appeal.

Petitioner's exhibits #1-7.

State v. Perkins, 271 Conn. 218 (2004).

Norris opined that Russell's performance in petitioner's criminal trial fell below the standard of care of a criminal defense attorney in that (1) at the time of petitioner's criminal trial, Russell was not aware of the Connecticut waiver rule and did not counsel petitioner as to the interplay between the waiver rule and the presentation of defense evidence; (2) at petitioner's criminal trial, Russell failed to move for a mistrial or to strike the testimony of Grosner and Fidaleo; (3) during the defense case, Russell introduced evidence of petitioner's consumption of alcohol before the accident; (4) Russell failed to argue the proper grounds for the admission of Habetz's consciousness of guilt evidence; (5) Russell failed to properly introduce exculpatory evidence from Benton; and (6) in closing argument, Russell failed to argue to the jury the legal principles of burden of proof and presumption of innocence.

Norris indicated the trial transcripts showed that prior to the testimony of Francis Grosner and Ralph Fidaleo, the state made an offer of proof outside of the presence of the jury. In its offer, the state averred that each witness would testify he had served alcoholic beverages to petitioner on the evening of November 20. Upon that representation the trial court allowed their testimony to be presented. When Grosner and Fidaleo testified before the jury, however, they each claimed that they were not able to identify the individual to whom they had served alcohol. Nonetheless, Russell did not move for a mistrial nor did he move to strike their testimony. In cross examination, Norris agreed that the portion of Fidaleo's testimony in which Fidaleo states every drink he poured consisted of two ounces of scotch was made relevant and admissible due to the testimony of Jason Medvegy.

Grosner was a bartender at the Tavern on Main the night of November 20, 2000.

Norris also believes that prior to putting on a defense case, Russell had an obligation to discuss the waiver rule and its ramifications with petitioner. Norris claims that such a discussion was required so that petitioner could make an informed decision as to whether to stand pat and rely upon an appellate court to reverse for insufficiency of the evidence or whether to present a defense with the concomitant risk of filling any gaps in the state's case. Norris further opined that had Russell had such a discussion with petitioner, the ultimate decision would not constitute deficient performance in that the decision would be considered trial strategy. Finally Norris indicated that Russell was cognizant of the evidentiary ramifications of putting on a defense, but was not familiar with the legal ramifications of putting on a defense.

Norris also claimed that after deciding to put on a defense case, Russell mishandled the presentation of the case in that he allowed evidence of petitioner's consumption of alcohol to be admitted through the defense witnesses, to wit: petitioner and Selig. On cross examination, Norris admitted that petitioner was the only witness who could have testified that the cause of the accident was petitioner's maneuvers to avoid hitting a deer in the roadway and that these actions, not his speed or consumption of alcohol, caused him to lose control of the vehicle. Norris also conceded that once petitioner took the stand, there was no way that Russell would be able to keep evidence of petitioner's alcohol consumption away from the jury.

In the same vein, on cross examination, Norris conceded that Selig was the only defense witness qualified to testify to the physiological, psychological and cognitive effects of a traumatic brain injury. Norris further conceded that once Selig testified to the effects of petitioner's head injury, cross examination as to defendant's alcohol consumption could not have been kept from the jury. Petitioner and Selig were also the only two witnesses who could testify that immediately after the accident, petitioner called "911" to report the accident and to seek help for Novack.

This evidence was introduced to demonstrate that petitioner did not purposefully leave the scene of the accident. State v. Perkins, supra, 271 Conn. 242 n. 28.

According to Connecticut State Police records, a "911" call was received from a cell phone on November 20, 2000 at 11:48:08 p.m. The call lasted ten seconds. The male caller did not identify himself but reported that an accident had occurred in Westport.

Next Norris claims that Russell mishandled the testimony of Habetz on the issue of consciousness of guilt. In its case-in-chief the state had presented the testimony of Habetz to show that shortly after the accident, petitioner was in the area of the accident, that petitioner called Habetz and requested to be picked up, that when Habetz located petitioner, petitioner was wearing a suit but looked dirty, beat up and was bleeding from the head and that Habetz took petitioner to Habetz's house. On cross examination, Russell attempted to question Habetz as to what Habetz had prevented petitioner from doing. The state objected that this area of questioning was beyond the scope of the direct examination and the court sustained the objection.

Thereafter, during the defense case Habetz testified and was asked what advice he had given petitioner, what was Habetz's law enforcement experience and what did petitioner tell Habetz he intended to do. The state objected to each of these questions on the grounds of hearsay and relevance. Russell countered that each of these questions went to the issue of whether petitioner was guilty of the crime of evading responsibility. The court, however, sustained the state's objections as to all three areas of questioning.

Norris claims that while Habetz's testimony was not admissible to rebut the charge of evading responsibility, it was relevant to the issue of petitioner's flight from the scene of the accident and his consciousness of guilt. Thus Norris maintains that Russell's performance was deficient in that he completely failed to argue this ground for admissibility. Norris further opined that petitioner was prejudiced thereby because in its final charge, the court gave the jury an instruction on consciousness of guilt and because there was no other evidence presented by petitioner to explain his reasons for not returning to the scene of the accident.

The court instructed the jury that "[i]n any criminal trial it is permissible for the state to show the conduct of a defendant after the time of the alleged offense may fairly have been influenced by the criminal act. That is that the conduct shows a consciousness of guilt. The conduct of a person in leaving the scene of a crime, if proven that he was in fact at the scene of the crime, may be considered in determining his guilt. Since, if unexplained it tends to prove a consciousness of guilt. However, flight if shown, is not conclusive, nor does it raise a legal presumption of guilt, but it is to be given the weight to which the jury thinks it is entitled under all the circumstances shown."

Norris also testified that Russell's closing argument was deficient in that Russell completely failed to argue that the state bears the burden of proof in a criminal case and that the jury is required to presume a defendant innocent.

Finally, Norris opined that but for Russell's deficient performance the outcome of the trial would have been different. Specifically Norris pointed to the fact that if Russell had performed properly, there would have been no evidence of alcohol consumption after the state's case-in-chief. Without the alcohol evidence and with Russell's advice and counsel, petitioner could then have made an informed choice whether or not to present a defense case. Finally the manner in which Russell presented the defense case filled in gaps in the state's evidence on the issue of whether petitioner was under the influence. Additional facts will be discussed as necessary.

DISCUSSION OF LAW

For a petitioner to prevail on a constitutional claim of ineffective assistance of counsel, he must satisfy both parts of the test set forth by the United State Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To do this the petitioner must prove, by a preponderance of the evidence, both deficient performance and actual prejudice. Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721 (2002).

The first part of the test, known as the performance prong, requires proof that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. 688; Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1994). "In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Internal quotation marks omitted.) Calabrese v. Commissioner of Correction, 88 Conn.App. 144, 151, cert. denied, 273 Conn. 936 (2005). "Because of the difficulties inherent in making [this] evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 799, cert. denied, 268 Conn. 907, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).

The second prong of the test, known as the prejudice prong, requires "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland v. Washington, supra, 466 U.S. 687; see also Copas v. Commissioner of Correction, supra, 234 Conn. 154-55. "It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn. App. 799.

I. Waiver Rule Severance a. Waiver rule

Petitioner first claims that Russell was ineffective because he lacked knowledge of and failed to consider the waiver rule in deciding to put on a case for the defense. "Under the waiver rule, when a motion for [a judgment of] acquittal at the close of the state's case is denied, a defendant may not secure appellate review of the trial court's ruling without [forgoing] the right to put on evidence in his or her own behalf. The defendant's sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state's evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto. The defendant then runs the risk that the testimony of defense witnesses will fill an evidentiary gap in the state's case. The waiver rule, therefore, forces the defendant to choose between waiving the right to [present] a defense and waiving the right to put the state to its proof. [ State v. Rutan, 194 Conn. 438], 440-41." State v. Perkins, 271 Conn. 218, 229 (2004).

Russell testified that at the time of petitioner's criminal trial, he was not familiar with Connecticut's waiver rule. Thus after the motion for judgment of acquittal was denied he did not consider the impact of the waiver rule on the defense case. It is clear that while Russell was aware that putting on a defense case ran the risk of filling in evidentiary gaps in the state's case, he was completely unaware of the legal ramifications of these actions. This court agrees with petitioner's expert that a reasonably competent defense attorney should have been aware of and understood the effect of the waiver rule. Thus Russell's lack of understanding of Connecticut's waiver rule amounted to deficient performance.

To prevail on a claim of ineffective assistance of counsel, it is not enough, however, that a petitioner prove deficient performance. Rather a petitioner must also prove the second or prejudice prong of the Strickland standard. "In Strickland, the United States Supreme Court held that 'actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice . . . Even if a defendant shows that particular errors of counsel were unreasonable . . . the defendant must show that they actually had an adverse effect on the defense. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test . . . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Strickland v. Washington, supra, 466 U.S. 693-94." Fisher v. Commissioner of Corrections, 45 Conn.App. 362, 366-67, cert. denied, 242 Conn. 911 (1997). In the present case, therefore, petitioner must prove that but for counsel's lack of knowledge of the waiver rule, the defense would not have put on a defense case and petitioner would have been acquitted. Simply put, for petitioner to succeed on a claim of ineffective assistance of counsel, petitioner must first show that Russell would have chosen to forgo a defense case and then he must show that petitioner would have been found not guilty.

At the habeas trial, Russell was never asked whether he would have put on a defense case if he had been aware of the waiver rule. Thus in the present case petitioner has failed to affirmatively prove that had Russell been aware of the waiver rule, he would have chosen to forgo presenting a defense case. Petitioner, therefore, has failed to prove that he was prejudiced by Russell's lack of knowledge of the waiver rule.

Moreover the record supports a conclusion that even if Russell had been aware of the waiver rule, he nevertheless would have put on a defense case. The fatal accident involving petitioner occurred on November 20, 2000. Sometime thereafter, petitioner was arrested for misconduct with a motor vehicle and evading responsibility and he elected a trial to the jury. After the parties were not able to resolve the matter, it was marked over to the firm jury list. Ultimately the matter came before the court for jury selection on December 19, 2001. On the morning of jury selection, the state filed a three-count substitute information which for the first time apprised petitioner that he was being charged with manslaughter in the second degree with a motor vehicle in addition to the original charges of misconduct with a motor vehicle and evading responsibility.

General Statutes § 53a-57(a) provides: "A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person."

General Statute § 14-224(a) provides: "Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury . . . to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator's license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person and if the operator of the motor vehicle causing the death or serious physical injury of any person is unable to give his name, address and operator's license number and registration number to the person injured or to any witness or officer, for any reason or cause, such operator shall immediately report such death or serious physical injury of any person to a police officer . . . or at the nearest police . . . station, and shall state in such report, the location and circumstances of the accident causing the death or serious physical injury of any person and his name, address, operator's license number and registration number."

General Statutes § 53a-56b(a) provides: "A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug."

At the habeas trial Russell testified that he was prepared to defend against the original two counts, but the addition of the manslaughter count took him completely by surprise. In response Russell filed additional discovery motions to ascertain any new evidence acquired by the state. In argument before the court, the state responded that Habetz and Jason Medvegy had recently informed the state that petitioner did not appear intoxicated and that Fidaleo had not been asked about petitioner's sobriety. Beginning on January 8, 2002, the state presented its case-in-chief. At the conclusion of the state's case, Russell moved for judgment of acquittal. Significantly Russell's motion attacked not only the sufficiency of the state's evidence as to the manslaughter count, but also the sufficiency of its evidence as to the misconduct and evading responsibility counts. Specifically Russell argued that the state had failed to prove intoxication as to the manslaughter count, criminal negligence as to the misconduct count and wilfulness as to the evading responsibility count. The court denied the MJOA as to all three counts and the defense was forced to decide whether to present its own case.

General Statutes § 53a-3(14) defines criminal negligence as follows: "[a] person acts with 'criminal negligence' with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

Criminal Trial Transcript, January 14, 2002, pp. 2-11.

After the denial of the MJOA, Russell met with petitioner and petitioner's family to discuss the risks and the benefits to the defense of its own evidence. Russell believed that the defense had strong evidence to rebut intoxication, causation and flight. This evidence consisted of petitioner's testimony concerning the deer in the road, his explanation as to why he failed to return to the scene of the accident, his identification of his voice on the "911" tape, Selig's testimony concerning petitioner's traumatic brain injury and its effect on petitioner's judgment, evidence from petitioner's own accident reconstructionist disputing the conclusions of the Westport police, the testimony of Benton and Paul Medvegy as to petitioner's sobriety and Habetz's testimony as to why petitioner did not return to the scene. The thrust of this evidence was three-pronged—that the cause of the accident was unavoidable accident or simple negligence, that petitioner did not wilfully evade the accident and that petitioner was not intoxicated.

Evidence of alcohol consumption is relevant to the issue of whether a defendant's conduct was a gross deviation from the standard of care of a reasonable person. See State v. Dawson, 23 Conn.App. 720, 724 (1991).

It is obvious that this evidence was not some hastily thrown together response occasioned by the addition of the manslaughter charge. Rather the defense case was well-planned, well thought-out and wide-ranging in scope. Moreover it is apparent from the record that this evidence had been assembled by the defense well in advance of the trial and at a time when petitioner was only charged with misconduct and evading. The trial transcript reveals that Selig, the psychiatrist, was hired one-year before the trial; that Ojalvo, the accident reconstructionist, spent thirty-two hours on his investigation and completed his report two weeks before the trial; and that Jacquemin, the meteorologist, spent twenty hours gathering data and performing his investigation.

"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." (Citations omitted; internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 230 (2005). Based on the quality and wide-ranging nature of the available defense evidence, even if Russell had been aware that presentation of any of this evidence would invoke the waiver rule, it is highly unlikely that Russell would have chosen to forgo a defense case and run the risk of conviction without the jury giving equal consideration to the defense's evidence. While Russell believed that the evidence presented by the state in its case-in-chief was insufficient to obtain a conviction of manslaughter in the second degree, Russell also recognized that the jury could very well view the evidence differently. Moreover, the evidence adduced in the state's case-in-chief was overwhelming on the issues of petitioner's criminal negligence in causing the accident and his intentional evasion of the accident; and these two charges alone carried a maximum penalty of ten years incarceration. To forgo a defense case would have meant not only that the jury would not hear any defense evidence as to the manslaughter charge but also that the jury would not hear any defense evidence on the misconduct and the felony evading responsibility charges.

At the conclusion of the state's case, the jury could have found that between 9:00 p.m. and 11:00 p.m., petitioner consumed six ounces of scotch, that he was operating his motor vehicle thirty miles per hour above the speed limit on a wet, hilly, windy and dark road, that he did not apply his brakes before the crash, that he traveled fifty feet off the roadway and struck a tree and that within thirty seconds of the crash, he had fled the scene and called a friend for a ride rather than seek help for his passenger. "[T]he risks of being unable to control his car after drinking and of killing another while on the road were such that the failure to perceive them constituted a gross deviation from the standard of care of a reasonable person." State v. Dawson, supra, 23 Conn.App. 724. Additionally, all evidence that petitioner had called "911" and fled the scene for reasons other than consciousness of guilt was adduced in the defense case.

There is no evidence that at any time prior to jury selection petitioner intended to plead guilty. Rather the record shows that Russell came to court on December 19, 2001, prepared to mount a defense case to the charges of misconduct and evading. When the state at the last minute upped the ante by adding the manslaughter charge, the defense was given additional incentive to present their own evidence for if the jury could be made to believe that the state had overreached in charging the manslaughter count, this perception would also undermine the state's case as to the misconduct and evading counts. Indeed in closing argument Russell forcefully argued that petitioner had been charged by the state with being drunk before the witnesses from La Cucina were interviewed about petitioner's drinking and that this action constituted gross negligence and a rush to judgment on the part of the state and the Westport police. Additionally, during closing argument, Russell asked the jury to consider that the state had overreached in charging petitioner with gross negligence, an element of the misconduct count, and that the state was trying to make a "car accident into something that it isn't."

Criminal Trial Transcript, January 17, 2002, p. 34.

At the habeas trial, petitioner's expert, Norris, did not criticize Russell's decision to put on a defense. According to Norris, the deficiency in Russell's performance was the fact that Russell did not consider the effect of the waiver rule and, therefore, did not make an informed choice whether to present a defense. Significantly, at the habeas trial, Russell was never asked whether he would have put on a defense if he had been aware of the waiver rule. Also significant is the fact that at the close of the state's case, Russell moved for judgment of acquittal as to the misconduct and evading counts as well as the manslaughter count. This action further affirms Russell's continuous and unwavering intention to put on a defense case to contest criminal negligence and to explain petitioner's flight. On balance the overwhelming weight of the evidence persuades this court that even if Russell had been aware of the effect of the waiver rule, he would nevertheless have presented a defense case in an effort to rebut the state's evidence. Thus petitioner has failed to prove that he was prejudiced by Russell's lack of knowledge of the waiver rule.

Even though petitioner has failed to prove that he was prejudiced by Russell's lack of knowledge of the waiver rule, this court will, nevertheless, go on to consider whether the outcome of the trial would have been different if Russell had not presented a defense case. Because of the waiver rule, the Supreme Court never determined, and never needed to determine, whether the state had presented sufficient evidence in its case-in-chief to sustain petitioner's conviction. Although the Supreme Court stated in its decision that the state's case "was especially thin" with respect to how much alcohol petitioner consumed the night of the accident, the Court explicitly chose to "express no conclusion as to the sufficiency of the state's case-in-chief." State v. Perkins, supra, 271 Conn. 230-31. If the defense had not presented a case, the only evidence for the jury's consideration at the time of their deliberations would have been the evidence from the state's case-in-chief. In this court's opinion, if Russell had in fact chosen to forgo a defense case, petitioner would have, nevertheless, been convicted of all three counts. Thus the outcome of petitioner's trial would not have been different.

"For the sake of clarity, we reiterate that, if the defendant elects to introduce evidence following the denial of a motion for judgment of acquittal, appellate review of the defendant's conviction encompasses all of the evidence presented to the jury, irrespective of the sufficiency of evidence presented during the state's case-in-chief . . . [I]t is not appropriate to evaluate separately the state's case-in-chief before reviewing all of the evidence presented at the trial; rather an appellate court should proceed directly to the evidence in toto." (Citations omitted.) State v. Perkins, supra, 271 Conn. 231-32 n. 16.

"Our review of the evidence at the close of the state's case-in-chief is limited to a determination of whether the jury '"could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt." State v. Stepney, 191 Conn. 233, 255, cert. denied, 465 U.S. 1084, 104 S.Ct 1455, 79 L.Ed.2d 772 (1984); State v. Haddad, 189 Conn. 383, 387 (1983); State v. Jackson, 176 Conn. 257, 262 (1978).' State v. Rutan, [ 194 Conn. 438, 444 (1984)]." State v. Lizzi, 199 Conn. 462, 465 (1986).

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt . . .

"Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence . . . In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citations omitted; internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 377-78 (2002). "Our review is a fact based inquiry limited to determining whether the inferences [which may have been] drawn by the jury are so unreasonable as to be unjustifiable." (Internal quotation marks omitted.) State v. Ford, 230 Conn. 686, 692 (1994) . . .

"Moreover, . . . it is well to remember that [j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct." (Internal quotation marks omitted.) Id." State v. Jimenez, 74 Conn.App. 195, 201-03 (2002), cert. denied, 262 Conn. 947 (2003).

To find petitioner guilty of manslaughter in the second degree with a motor vehicle the state did not have to prove that petitioner was intoxicated. Rather, the state needed to prove that he was under the influence of intoxicating liquor and that its effect caused the death of the victim. In Connecticut a person operates a motor vehicle under the influence of alcohol "when the evidence shows that the driver of an automobile, by reason of having drunk intoxicating liquor, had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of [his automobile]." State v. Andrews, 108 Conn. 209, 216 (1928); See also Connecticut Selected Jury Instructions, Criminal § 11.23 (2001).

See footnote 13.

Petitioner's friend, Medvegy, testified that petitioner was drinking scotch between 9:00-10:30 p.m. the night of the accident. Fidaleo, the bartender from La Cucina, testified that during that same time period, he served three two-ounce glasses of scotch to a man characteristically similar to petitioner. Additionally, the state's evidence showed that petitioner was operating his motor vehicle thirty miles per hour above the speed limit on a wet, hilly, windy and dark roadway, that petitioner did not apply his brakes before the crash and that the vehicle traveled at twenty-four miles per hour a distance of fifty feet off of the paved surface of the roadway before coming to rest against a tree. Moreover, the jury reasonably could have found that petitioner's conduct in fleeing the scene and in calling a friend rather than "911" was indicative that he was trying to conceal the fact that he was under the influence of alcohol at the time of the collision. There was also testimony that on the day following the accident, Habetz and petitioner took steps to avoid contact with the Westport police. Based on this testimony, the testimony of the state's expert witness Milzoff, a general awareness of drinking and driving and the evidence concerning the crash itself, the jury could reasonably have concluded that petitioner consumed alcohol prior to the accident and that his consumption of alcohol affected his ability to operate his motor vehicle to such an extent that he crashed the vehicle causing the death of his passenger. Additionally all of this evidence would also support a conviction for misconduct with a motor vehicle.

All evidence of petitioner's "911" call was adduced in the defense case. Thus if the jury had been limited in its deliberations to the evidence from the state's case-in-chief, it would not have had this evidence before it.

See footnote 11.

As to the evidence in support of the evasion of responsibility charge, testimony from Wilton Road resident Pazar and first responder Brett Kirby indicated that the driver was not present when they arrived on the scene, there was no evidence to explain petitioner's flight and there was no evidence that, thereafter, petitioner had provided his name, address, operator's license number and vehicle registration number to any witness, to a police officer or at a police station. This evidence would have supported a conviction for evading responsibility.

All evidence indicating that petitioner left the scene for reasons other than his consciousness of guilt was elicited during the defense's case-in-chief.

See footnote 12.

In order to prove ineffective assistance of counsel, a petitioner must prove both prongs of the Strickland standard. Petitioner has failed to prove that had Russell been aware of the waiver rule, (1) he would not have presented a case and (2) the outcome would have been different. Thus, petitioner has failed to prove that he was prejudiced by any deficiencies in trial counsel's representation. His ineffective assistance of counsel claim, therefore, fails on the second part of the Strickland test because he has not undermined this court's confidence in the outcome of the criminal proceeding.

b. Severance

Petitioner makes an additional claim in count one that Russell failed to move to sever the charges against him. At the habeas trial, the only question asked of Russell pertaining to this claim was whether he had considered moving to sever any of the charges. To this Russell replied no. Thereafter, petitioner's expert, Norris, was neither asked, nor commented upon, the issue of severance.

"The question of severance lies within the discretion of the trial court . . . The discretion to sever a trial should be exercised only if a joint trial will substantially prejudice the defendant. Substantial prejudice is more than disadvantage and the formidable task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant . . . Simply put, the test to be applied is whether substantial injustice will result if the charges are tried together . . . It is clear then that the presumption is in favor of joinder and against severance. Only when joinder will work a substantial injustice should a trial court sever the charges." (Citations omitted.) State v. Jones, 234 Conn. 324, 343-44 (1995).

"The factors to be considered in determining whether severance is necessary include whether the charges involve discrete, easily distinguishable factual scenarios, whether one or more of the counts alleges brutal or shocking conduct by the accused, which would prejudice the defendant as to all the charges, or whether the trial is long or very complex." State v. Marsala, 43 Conn.App. 527, 534 (1996) cert. denied, 239 Conn. 957 (1997).

Applying these principles of law to the present case, a motion to sever would not have been likely to succeed. Petitioner has failed to present any evidence of prejudice or injustice resulting from the consolidation of the three criminal charges. Moreover, petitioner's charges arose from the same factual scenario, did not involve brutal or shocking conduct and did not impede an efficient and uncomplicated trial. "Economy and expedition of judicial resources are not achieved when the same facts must be proved to two different juries." State v Schroff, 198 Conn. 405, 409 (1986). Additionally, evidence of petitioner's alcohol consumption was relevant and admissible as to all three of the charges brought by the state. "Where evidence of one incident can be admitted at the trial of the other, separate trials . . . provide the defendant with no significant benefit." (Emphasis in original.) State v. Pollitt, 205 Conn. 61, 68 (1987).

Finally, petitioner has not presented any evidence that the charges should have been severed because his testimony as to some of the charges would have prejudiced the others. "There is no need for severance of claims unless a defendant makes a convincing showing that he has both important testimony to give concerning [some counts] and [a] strong need to refrain from testifying on [others]. In making such a showing, it is essential that the defendant present enough information . . . to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of 'economy and expedition in judicial administration' against the defendant's interest in having a free choice with respect to testifying." (Internal quotation marks omitted.) State v. Marsala, supra, 43 Conn.App. 535-36, quoting State v. Schroff, supra, 198 Conn. 409.

Thus petitioner has failed to prove either prong of the Strickland test.

II. Mistrial/Motion to Strike

Petitioner next claims that counsel was ineffective for failing to move for a mistrial or to strike the testimony of two witnesses due to an erroneous proffer made by the state. The first claim concerns the testimony of Francis Grosner, the bartender from Tavern on the Main. During the criminal trial Grosner testified that prior to 8:00 p.m. he served a person two beers, but could not identify petitioner as that person. The other claim concerns the testimony of Fidaleo, the bartender from La Cucina, who testified that he served a "G.Q. looking guy" three scotches, but also could not positively identify petitioner as that person. In a hearing outside of the presence of the jury, the state had proffered that both witnesses would testify that they served alcohol to petitioner.

Petitioner first claims that Russell should have moved for a mistrial on the grounds that the testimony of Grosner and Fidaleo deviated from the proffer. "While the remedy of a mistrial is permitted under the rules of practice, it is not favored If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided . . . The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial." (Internal quotation marks omitted.) State v. Sewell, 95 Conn.App. 815, 821, cert. denied, 280 Conn. 905 (2006). Here, a mistrial would not have been granted because a less extreme remedy existed, namely striking the witnesses' testimony and ordering the jury to disregard this evidence.

Moreover, petitioner has failed to prove that striking the testimony would have been insufficient to obviate any prejudice to him. At the habeas trial, petitioner's own expert testified that in conjunction with Jason Medvegy's testimony, at least a portion of Fidaleo's testimony was relevant and admissible on the issue of petitioner's alcohol consumption. Thus Fidaleo's testimony was not unfairly prejudicial to petitioner. "Evidence is prejudicial 'when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission.'" State v. Baldwin, 224 Conn. 347, 357 (1999) citing United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). "Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous." State v. Jenkins, 24 Conn.App. 330, 337, cert denied. 219 Conn. 903 (1991), citing State v. DeMatteo, 186 Conn. 696, 703 (1982). As to Grosner's testimony, since Grosner was completely unable to identify petitioner, there was no unfair prejudice to petitioner as a result of the erroneous admission of this evidence. "Simply stated, the remark's lack of specificity leads us to conclude that the remark did not unfairly prejudice the defendant in the eyes of the jury." State v. Boykin, 74 Conn. 679, 687, cert. denied 901 (2003) (No error for trial court to refuse to grant defendant's motion for a mistrial when police officer testified that he had searched criminal arrest records in an effort to find a photograph of the defendant and that he had found a photograph of defendant at the Bridgeport police department).

Petitioner next claims that Russell should have moved to strike the testimony of Grosner and Fidaleo on the grounds that they were unable to identify petitioner as the individual who consumed the beer or scotch. "Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue." (Internal quotation marks omitted.) State v. Cansler, 54 Conn.App. 819, 832 (1999).

Although it is possible that the testimony of Grosner may have been stricken, since Grosner did not identify petitioner, Grosner's testimony did not prejudice petitioner. Further the testimony of Fidaleo was relevant and admissible to prove that petitioner was drinking scotch at La Cucina and thus this testimony would not have been stricken even if petitioner had requested it. Medvegy, a friend of petitioner's, testified for the state that petitioner was drinking scotch. Taken together, these facts were relevant to prove the elements of operating under the influence of intoxicating liquor and criminal negligence. Additionally this evidence was admissible to show petitioner's motive to evade the accident.

As noted above, at the habeas trial, petitioner's own expert conceded that a portion of Fidaleo's testimony was "made relevant by the testimony of Medvegy." Habeas Trial Transcript, November 20, 2006, p. 144.

Aside from the issue of whether Grosner's and Fidaleo's testimony would have survived a motion to strike, petitioner has failed to rebut the presumption that by not challenging the admissibility of their testimony Russell was exercising sound trial strategy. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, supra, 466 U.S. 690. "[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . ." (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, cert. denied, 259 Conn. 916 (2002).

At the habeas trial, Russell was never asked why he did not move to strike the testimony of Grosner and Fidaleo. Moreover, the trial transcript shows that Russell made tactical use of Grosner's and Fidaleo's testimony in his motion for judgment of acquittal on the manslaughter charge. As grounds for this motion, Russell argued that the state failed to prove the element of operating a motor vehicle under the influence of intoxicating liquor and that the charges should be dismissed. More specifically Russell argued that neither Fidaleo nor Grosner had identified petitioner as the person to whom they served alcohol. Additionally, Russell pointed out to the court that Habetz and Medvegy as well as Grosner and Fidaleo had all testified that petitioner did not appear to be intoxicated. Although the motion for judgment of acquittal ultimately failed, counsel cannot now be faulted for attempting to use both witnesses' testimony in support of that motion. Based on the foregoing, this Court finds that petitioner has failed to prove the first prong of the Strickland test.

Since petitioner has not proven that Russell's performance was deficient for failing to move for a mistrial or to strike the testimony of Grosner and Fidaleo, this court need not determine whether petitioner was prejudiced thereby. "It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, cert. denied, 273 Conn. 922 (2005).

III. Admission of Prejudicial Evidence

Petitioner next claims that Russell's representation was ineffective in that he allowed the admission of prejudicial testimony from petitioner and Selig during the defense's case-in-chief.

During the defense case, petitioner took the stand and testified on direct examination that between 7:00 p.m. and 11:00 p.m. on the night of the accident, he consumed one beer along with two and one-half glasses of scotch. He further testified that a deer was in the road and that he swerved to avoid it, thereby causing the accident. Petitioner also identified the voice on the "911" tape as his own. Selig testified that petitioner suffered a traumatic brain injury in the accident and that as a result his cognitive abilities were affected. This included impairment of his ability to think, to exercise judgment and to make decisions. Selig also testified to petitioner's alcohol consumption and that he recognized petitioner's voice on the "911" tape.

There is no evidence that Russell's performance was deficient for allowing the admission of this testimony from petitioner and Selig. Although petitioner's and Selig's testimony may have filled certain gaps in the state's case, specifically the amount of alcohol consumed the night of the accident, it was imperative that they testify as part of the defense in order to admit an alternative theory of causation (i.e. the deer), an explanation of petitioner's flight from the scene (i.e. the traumatic brain injury) and petitioner's efforts to obtain help for Novack (i.e. the "911" call). At the habeas trial, petitioner's own expert conceded that they were the only witnesses who could have testified to those facts and that once petitioner and Selig took the stand, there was no way Russell would have been able to keep out evidence of petitioner's alcohol consumption. Although Russell brought out petitioner's alcohol consumption on direct examination, petitioner has failed to rebut the presumption that this tactic was trial strategy. If Russell had failed to offer this evidence during his direct examination of petitioner, the state surely would have brought out this evidence in cross examination. By having petitioner offer direct testimony of his alcohol consumption, therefore, Russell avoided later inference and later argument by the state that petitioner was trying to hide his alcohol consumption from the jury.

Based on the foregoing, this court finds that petitioner has failed to prove the first prong of the Strickland test. It is therefore not necessary for this court to consider whether petitioner was prejudiced. CT Page 1478

IV. Correct Grounds for the Admission of Evidence

Petitioner next claims that Russell failed to argue the correct grounds for the admission of certain evidence. This claim concerns testimony from Habetz that he prevented petitioner from returning to the accident scene and that he gave petitioner certain advice. The state objected to the questioning on hearsay and relevance grounds. Russell countered that the questions were relevant to the issue of whether petitioner was guilty of evading responsibility. The court sustained the state's objections. On appeal the Supreme Court affirmed the trial court's finding that although petitioner's comment to Habetz qualified under the state of mind exception to the hearsay rule, this evidence as well as Habetz's advice and law enforcement experience were irrelevant to the issues of whether petitioner immediately rendered assistance to Novack or whether he called "911."

Evidence of petitioner's state of mind would have been relevant and admissible, however, to rebut the state's claim that petitioner's flight constituted evidence of consciousness of guilt. Thus Russell failed to argue the correct legal basis for the testimony's relevance. Because testimony concerning petitioner's desire to return to the accident scene supports an explanation of his flight other than his consciousness of guilt, Habetz's statements were relevant. This court therefore agrees with petitioner's expert that Russell's failure to properly offer the evidence constitutes deficient performance.

Cf. State v. Lugo, 266 Conn. 674, 694 (2003) ("Because the statement about which the defendant sought to testify reasonably supported the defendant's theory that his plans to leave Connecticut were motivated by fear rather than consciousness of guilt, the statement was relevant on the subject of flight and, therefore, admissible.").

Petitioner's claim to the contrary notwithstanding, testimony regarding Habetz's "law enforcement experience" and the reasons why Habetz believed petitioner needed an attorney do not, without more, qualify as evidence of petitioner's state of mind. Thus Russell's inability to introduce this evidence did not constitute deficient performance.

Although the legal basis for the evidence was incorrectly argued, this did not prejudice petitioner's defense. In State v. Lugo, 266 Conn. 674 (2003), the Supreme Court held that the trial court erred in refusing to admit the defendant's statement explaining his flight. The Court, however, found this error harmless when the defendant had otherwise testified to the same facts and counsel presented defendant's claim in closing argument. "In view of the defendant's testimony at trial concerning his motivation for leaving the state and in view of the fact that defense counsel referred to this motivation during closing arguments, the defendant actually presented his theory for flight to the jury. Therefore, '[i]n light of the additional evidence pertaining to the defendant's state of mind that was placed before the jury' . . . we conclude that the trial court's improper evidentiary ruling was harmless." (Citation omitted.) State v. Lugo, supra, 266 Conn. 696.

In the present case, even though the trial court sustained the state's objection, evidence explaining petitioners' flight was elicited from both petitioner and Habetz. The trial transcript shows that petitioner twice testified that he wanted to return to the scene but that he instead went to Habetz's house and waited to contact an attorney. Further Habetz was allowed to testify that while still in the car, Habetz told petitioner that he needed an attorney, that Habetz brought petitioner to Habetz's house, but this was not petitioner's first choice and that at the house, Habetz gave petitioner a change of clothes and tried to contact an attorney for him.

"[W]e note that the jury was able to consider most of the issues that [petitioner] challenges on appeal. [Petitioner] twice testified that he wanted to return to the accident scene, and Habetz testified that he had advised [petitioner] that he needed an attorney, that he took [petitioner] back to Habetz's home, and that going back to Habetz' home was not [petitioner's] 'first choice.'" State v. Perkins, supra, 271 Conn. 260 n. 38.

The trial transcript also shows that during his closing argument, Russell several times argued that the evidence showed that petitioner suffered a head injury in the accident and that persons with such injuries were often dazed, confused, lacking in memory and without proper judgment. Russell also argued that petitioner desired to return to the scene but Habetz would not let him do so as Habetz believed petitioner needed an attorney. Finally Russell argued that petitioner had no intent to flee the accident scene for if he had intended to do so he would not have left behind an airplane ticket and his briefcase.

Petitioner was scheduled to fly to Wisconsin six hours after the accident.

Thus petitioner has failed to prove that he was prejudiced by counsel's error. He has therefore failed to satisfy the second prong of the Strickland test.

V. Evidence in Support of the Defense

Petitioner next claims that Russell was ineffective for failing to present favorable evidence in support of the defense. This claim concerns counsel's alleged failure to elicit certain testimony from witnesses Benton and Habetz.

During the criminal trial, Benton testified for the defense. On direct examination, Russell attempted to elicit testimony from Benton that petitioner did not appear intoxicated; however, he did so by asking leading questions. The state appropriately objected and the testimony was never presented, even though the judge gave Russell suggestions as to how he could properly ask the question. Although counsel's representation is not required to be perfect; Woods v. Commissioner of Correction, 85 Conn.App. 544, 549, cert. denied, 272 Conn. 903 (2004); this Court finds that the inadequate questioning of Benton by Russell fell below the performance of a reasonably competent defense attorney.

Criminal Trial Transcript, January 16, 2002, pp. 29-33.

Russell's representation, however, did not prejudice petitioner's defense. First, the facts Benton could have testified to were not particularly probative because he left La Cucina before petitioner and could not say what petitioner had to drink after he left. Second, although Benton would have testified that petitioner did not seem intoxicated, this evidence was cumulative of the testimony given by Jason Medvegy and Fidaleo, who both testified during the state's case-in-chief Additionally during the defense case, Russell presented the testimony of Paul Medgevy who also testified that petitioner was not intoxicated. Moreover, there was no evidence presented at the habeas trial that Benton's testimony was of a better quality than that of the other three witnesses who testified to petitioner's sobriety or that Benton's testimony was anything other than cumulative of other evidence. Petitioner's claim concerning the testimony of Benton, therefore, fails the second prong of the Strickland test.

As to the testimony of Habetz which petitioner also claims was improperly presented, although certain testimony was not allowed based on an incorrect proffer, as noted previously, the relevant facts were already in front of the jury based on petitioner's testimony and other testimony of Habetz. There is therefore no prejudice to any alleged deficiencies in counsel's performance. Petitioner's claim concerning the testimony of Habetz also fails the second prong of the Strickland test.

VI. Closing Argument

Petitioner finally claims that Russell made an inadequate and improper closing argument. Specifically, he asserts that Russell: (1) failed to address the state's lack of evidence concerning the amount of alcohol petitioner consumed; (2) failed to identify the elements of each crime that the state needed to prove beyond a reasonable doubt; (3) failed to address crucial issues during his closing argument, such as the state's burden of proof, the concept of the presumption of innocence and the meaning of beyond a reasonable doubt; and (4) made improper statements during closing argument, which resulted in admonishment from the trial court.

As to petitioner's first claim, the trial transcript shows that during his closing argument Russell repeatedly and forcefully pointed to witness testimony that indicated petitioner was not intoxicated the night of the accident. Russell referenced testimony from Medvegy, who said that petitioner did not appear to be intoxicated when he left La Cucina; testimony from the state's own toxicologist, who could not definitively say that petitioner was drunk or impaired; and testimony from Fidaleo who could not identify petitioner as someone to whom he had served drinks that night. Thus there is no evidence to support a finding that petitioner's trial counsel performed below an objective standard of reasonableness in delivering this portion of his closing argument. As to petitioner's second and third claims, the trial transcript shows that Russell argued five separate times that the state was required to prove the defendant guilty beyond a reasonable doubt and that the state had wholly failed to do so. Russell, however, never identified the elements of each of the crimes charged and never argued the requisite burden of proof or presumption of innocence. Even if Russell's closing argument could be considered deficient, petitioner has failed to satisfy the second part of the Strickland test.

The trial transcript shows that in its final charge, the court extensively instructed the jury as to each element of each of the three crimes with which petitioner was charged. Additionally, the court charged the jury on the presumption of innocence, the state's burden of proof and the meaning of proof beyond a reasonable doubt. The court also charged the jury that they were required to accept the law as given to them by the court, that the arguments and statements of counsel were not evidence and that they could not consider counsels' arguments in deciding what the facts are.

Petitioner makes no claim that the court misstated the law or that Russell's argument as to these issues would have in some way been superior to the court's instructions. Moreover, petitioner has wholly failed to present any evidence that the jury disregarded the court's instructions. "Jurors are presumed to have followed the instructions of the court as to the law in the absence of a clear indication to the contrary." (Internal quotation marks omitted.) State v. Taylor, 63 Conn.App. 386, 397 n. 11, cert denied, 257 Conn. 907, cert. deified, 534 U.S. 978, 122 S.Ct. 406, 151 L.Ed.2d 308 (2001). Thus these claims of petitioner must fail.

As to the fourth claim, petitioner alleges that Russell made inappropriate comments during his closing argument. He stated, inter alia, that the "un-investigation" of petitioner's case was a "witch hunt" and that petitioner "was hunted like an animal." The trial judge admonished Russell for these comments, however it was outside the presence of the jury. Thereafter the jury was simply told to disregard certain comments made by Russell, just as they were told to disregard redactions from documents admitted into evidence during the trial. Moreover, the court charged the jury that the comments of counsel during closing arguments were not to be considered as evidence. Thus, even if Russell's performance was deficient for making inappropriate comments, there was no harm to petitioner as a result.

VII. Cumulative Effect of Russell's Errors At the habeas trial Norris opined that but for Russell's deficient performance the outcome of the trial would have been different. Specifically Norris pointed to the fact that if Russell had performed properly, there would have been no evidence of alcohol consumption after the state's case-in-chief. Without the alcohol evidence and with Russell's advice and counsel, petitioner could then have made an informed choice whether or not to present a defense case. Finally the manner in which Russell presented the defense case filled in gaps in the state's evidence on the issue of whether petitioner was under the influence. For the reasons outlined earlier in this opinion, this court does not agree with Norris' conclusion that if Russell had moved to strike Fidaleo's testimony, the court would have stricken that evidence. Additionally as noted previously this court does not agree that Russell was deficient in the manner in which he presented the testimony of petitioner and Selig. To the extent that Russell's performance was deficient in his attempts to introduce the testimony of Habetz and Benton and in his lack of knowledge of the waiver rule, petitioner has failed to prove that he was prejudiced thereby. Thus although the court has found trial defense counsel to have rendered deficient performance in more than one way, these deficiencies viewed cumulatively have in no way undermined this court's confidence in the outcome of the underlying criminal trial. Adorno v. Commissioner of Correction, 66 Conn.App. 179, cert. denied, 258 Conn. 943 (2001).

Accordingly, the writ of habeas corpus is denied. Petitioner's counsel shall prepare and file the judgment file within thirty days.


Summaries of

Perkins v. Warden

Connecticut Superior Court Judicial District of Tolland at Rockville
Jan 23, 2007
2007 Ct. Sup. 1456 (Conn. Super. Ct. 2007)
Case details for

Perkins v. Warden

Case Details

Full title:BENJAMIN PERKINS (INMATE #325726) v. WARDEN, STATE PRISON

Court:Connecticut Superior Court Judicial District of Tolland at Rockville

Date published: Jan 23, 2007

Citations

2007 Ct. Sup. 1456 (Conn. Super. Ct. 2007)