2005 Ct. Sup. 3721
No. CV 02-0461618Connecticut Superior Court, Judicial District of New Haven at New Haven
February 28, 2005
MEMORANDUM OF DECISION
DEMAYO, JUDGE TRIAL REFEREE.
STATEMENT OF THE CASE
In this habeas corpus petition, the petitioner alleges ineffective assistance of his trial counsel. The trial concluded on October 26, 2001 with a jury finding the petitioner guilty of Attempted Murder, Assault in the First Degree, Criminal Possession of a Weapon, and Commission of a Class A, B, or C Felony with a Weapon. The court subsequently found him to be in violation of probation and sentenced him to serve 51 years.
The petitioner denies any involvement despite being identified by the victim, his former girlfriend and mother of his child. The defense was basically premised on the theory that the victim falsely accused the petitioner in retaliation for his having reported (anonymously) to the Department of Children and Families that the victim was abusing her children — including his offspring.
He also claims that he had a valid alibi defense which counsel failed to develop and utilize at trial.
STANDARD OF REVIEW
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test to be applied in evaluating claims of ineffective assistance of counsel. In addition to being deficient, that is, not within the range of competence of lawyers with the ordinary skill and training in criminal law, the deficient performance must have prejudiced the defense.
Connecticut courts have addressed this test and elaborated upon a petitioner’s burden in asserting such claims: CT Page 3722
The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn.App. 674, 678, 564 A.2d 303 (1989). He must also show “that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.” Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel’s assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra.
Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 21 Conn.App. 260, 263, (1990). Further, strategic or tactical choices of counsel are not subject to challenge. (Strickland, supra). The petitioner’s claim must be evaluated in light of these standards.
DISCUSSION I
Prior to the commencement of trial, the court heard and granted the petitioner’s “Motion For Records And Inspection.” This motion was directed at records of the Department of Children and Families, specifically the file of Jacqueline Peton, the complaining witness against the petitioner.
It sought “any such record or portion thereof which contains exculpatory material and/or material which would have helped the Petitioner with respect to the credibility, motive for fabrication and bias of the complaining witness.”
It was agreed that the court would conduct an in camera review of the records, and after conducting that review, the court concludes that there is nothing in the material examined which CT Page 3723 could have been of assistance to the petitioner at his trial. In fact the contrary is true and the likelihood is that Ms. Peton would have emerged in a very favorable light. The petitioner is not so fortunate.
Therefore, even if trial counsel were found to be deficient in not seeking these records for use at the criminal trial, that failure could have had no effect on the outcome of the trial. It would in all likelihood have given the trial judge a most unfavorable impression of the petitioner.
And, trial counsel testified that he had access to the DCF records and the prior history of police involvement with the petitioner and the complainant. He decided not to use them as they reflected unfavorably on his client. Counsel did cross-examine the complaining witness on events referred to the file and thus showed the stormy relationship that existed between these partes.
The DCF records are ordered re-sealed and marked as Court Exhibit 1.
II
In a 69-page brief, the petitioner alleges ineffective assistance of counsel in three areas of the criminal justice process: between arrest and trial; during the evidentiary portion of the trial; and at sentencing. The court will address the numerous claims recited in these categories in the order they were briefed.
A
The petitioner appears to blame defense counsel for his having gone to trial. Yet he says of counsel: “It was always his contention that I was going to be convicted if I went to trial.” Counsel testified that he advised against going to trial and had plea bargained for a total effective sentence of 20 years which would include 5 years he owed as a probation violator. This offer was rejected by the petitioner.
It is the court’s opinion that the disposition offered through the efforts of trial counsel was an extremely favorable one. His statement in this proceeding that it was his understanding that “they weren’t going to be able to convict me of Attempted Murder CT Page 3724 and First Degree Assault” is unworthy of belief. He was aware of his exposure and admits that counsel told him that if he were convicted he would be facing a sentence of 30 years (counsel’s testimony was 30 to 35 years).
Of course, counsel had no idea that the petitioner would make such a poor impression on the witness stand, nor that at sentencing his unabated attack on the judge, prosecutor, defense counsel and the court system would invite maximum sentences.
There is no credible evidence to even suggest that the petitioner was coerced into going to trial and the court finds no merit to that claim.
B
The petitioner claims he had a valid alibi defense which was neither developed nor pursued by trial counsel. The success of this defense would have depended largely on the testimony of a friend, Eddie Lynch, and Lynch’s girlfriend. Olga Lopez (a/k/a Perez).
Unfortunately, for the petitioner, both of these people had been interviewed by the police and disclaimed any knowledge of the petitioner’s whereabouts at the time of the crime. They each signed a statement to that effect. The petitioner claims to have been at the Lopez apartment during the time of the offense.
When an investigator for the public defender’s office tried to interview them, they were uncooperative, to say the least. Though never interviewed personally, Ms. Lopez did tell the investigator in a phone conversation that she didn’t recall what time the petitioner was at her apartment nor when he left.
When Ms. Lopez testified in the habeas case, she stated she first saw the petitioner when she got up the next morning at about 11 a.m.! She then went on to say that she asked Eddie (Lynch) what the petitioner was doing there and he said “he came in around five.” Ms. Peton was shot around 5 a.m. The petitioner testified he saw Ms. Lopez at 9 or 9:30 a.m.
This is not the material out of which successful defenses are made.
Turning again to Mr. Lynch, in addition to the denial made to CT Page 3725 the police, he is supposed to have spoken to Attorney Frank Riccio. (His role in this case will be discussed later). In un-dated hand written notes of Mr. Riccio, which he signed, Lynch has the petitioner at the Lopez apartment before 2 a.m., sleeping till about 8 a.m. and leaving at 10 a.m.
An examination of Mr. Lynch’s statements on Exhibit 1, the Riccio notes, and Exhibit J, the statement to the police is interesting. Exhibit 1 is signed “Eddie Lynch III.” Exhibit J is signed “Eddie Lynch.” Mr. Lynch’s handwriting also appears to have undergone a substantial transformation between the execution of the two documents.
Finally, Mr. Lynch was subpoenaed for the habeas trial, was reported by petitioner’s counsel to be present but did not testify.
The petitioner is critical of the apparent inability of the trial defense counsel and his investigator to get Lynch and Lopez to come into the office. Short of dragging them in, there was no influence that could be exerted until trial when a subpoena could be issued. By that time, the value of the combined testimony of these two individuals was less than zero.
It is also significant that Attorney Paul Eschuk, who represented the petitioner at his arraignment, testified that after he read the warrant to the petitioner, the latter said nothing suggesting he had an alibi. The names of Lynch and Lopez were not offered and he said nothing about watching a movie with Lynch.
The petitioner asserts in his brief that defense counsel’s ineffectiveness is illustrated by his failure to produce Ms. Lopez as she “would have placed him at her residence, and would have supported his theory of alibi.” This premise ignores these facts: that she gave a contradictory statement, that she has him arriving at about 5 a.m., and that it contradicts the petitioner’s version that had him watching a video with Lynch.
Turning to the failure of trial counsel to call Mr. Lynch, the petitioner has failed to establish that Mr. Lynch would have provided evidence helpful to the petitioner and that that evidence would have made a difference in the trial outcome.
Mr. Lynch had given the police a statement denying any CT Page 3726 knowledge of the case and stating he did not see Mr. Abrahams the night of the shooting. (Exhibit J). How that would help the defense at the trial eludes the court, and if Mr. Lynch were put on the stand, his statement would have come in.
At the habeas hearing, Mr. Lynch was subpoenaed, was present and the court had obtained counsel to advise him and Ms. Lopez of their Fifth Amendment privileges. Petitioner’s counsel then advised the court that Mr. Lynch would not be called. Therefore, we do not know what Mr. Lynch would have said, but in view of Exhibit J, the petitioner would have had and has no support for his version of events. There is no support of this petition found in any failure to call Mr. Lynch.
Another claim advanced by the petitioner to support his alibi theory of defense involved a witness whose name and person first surfaced at the habeas hearing. Edyl Melecio testified that he too was at the Lopez apartment on the night of the shooting and saw the petitioner there. Ms. Lopez never mentioned him, nor did Mr. Lynch who allegedly hosted the video showing that night. His name does not appear in the notes of Attorney Riccio.
However, the petitioner testified at the habeas trial that, in December 2000 while incarcerated, he spoke to Mr. Lynch on the phone and Mr. Lynch told him that one “Tito” had volunteered the information that he, Tito, had seen the petitioner at the Lopez apartment on the night in question. The phone tapes of this conversation were not preserved, a failure attributed to defense counsel by the petitioner.
Amazingly, the petitioner did not ask Lynch to do anything about this, in his words, “Because he had already given the statement to Riccio, and I already knew about that. And all that information was already relayed to Romanello. So I’m not going to sit there and beat a dead horse. It was already done.” (Tr. Page 76, June 30, 2004).
Mr. Romanello testified that he was never given information about one “Tito” who turned out to be Melecio. Nor did Attorney Riccio indicate he passed such information on to Mr. Romanello. The petitioner learned “Tito” was Mr. Melecio via a chance encounter at a penal institution in 2002. Supposedly, this was when he learned Tito was Melecio and when Melecio remembered seeing him at the Lopez apartment on November 4th of 2000 and told him so. CT Page 3727
The petitioner’s brief (page 22) is incorrect when it states “Mr. Melecio’s name came from Mr. Lynch in a phone conversation in December 2000 or January 2001.” The petitioner testified that “I didn’t have a first name for him. I didn’t have a last name for him.” (Tr. Page 78, June 30, 2004.) Yet, he did nothing to find out from Lynch or others who Tito was! And we have yet to hear from Mr. Lynch so we don’t know if he knew Tito’s name, but obviously he did not tell it to the petitioner.
Therefore, had the phone tape been produced, counsel would have learned nothing the petitioner didn’t already know.
And, in earlier testimony, the petitioner had said he did nothing about the Lynch phone call “Because he had already given the statement to Riccio and I already knew about that.” (See excerpt, supra).
This Melecio evidence bears every semblance of a contrived tale and the court can give it no credibility. It can be accorded no weight because it proves nothing, even if true.
C
The petitioner argues that trial counsel should have brought to the attention of the jury the contents of the trunk of his car, virtually a complete wardrobe. This would show that his story about going to the victim’s apartment to remove his clothes at a time to avoid running into her was true.
How this irrelevant episode effects the petition is puzzling. Counsel concedes this information would not exonerate the petitioner, and the court heartily agrees. But, in tandem with the Lopez and Melecio testimonies it would have supported the petitioner’s testimony, he claims.
The Lopez and Melecio testimony has been evaluated and found wanting. This offer is supportive of no relevant issue in the criminal trial or the habeas trial.
D
Trial counsel in the underlying case was confronted with a strong case favoring the prosecution. His client expected him to “demolish” the complainant on the stand and convince the jury CT Page 3728 that she was naming the petitioner as her assailant to get even with him while the actual culprit went unapprehended. This was a large order, by any standard. The case was not helped by disinterested witnesses identifying his car at the scene and his having made numerous phone calls to the complainant’s residence in her absence prior to the shooting.
The court has read the entire criminal trial transcript and notes that defense counsel was successful in getting the complainant to admit to having lied in several instances. The trial court sustained the state’s objection to his efforts to explore other acts.
In brief, counsel did an effective job of examining this witness, who having been shot at and struck four times, was certainly going to be received sympathetically by the jury.
A review of the transcript indicates a diligent and effective effort to make the most of what little counsel had at his disposal.
In the face of the Appellate Court’s statement in affirming the petitioner’s conviction that “. . . the case against the defendant was very strong, (State v. Abrahams, 79 Conn.App. 767, 781 (2003)), the petitioner pronounced his expectation to display at trial a “pattern of truth.”
Unfortunately, the strands of this pattern are mostly irrelevant or not probative. Proof that a particular video was rented on the night in question is meaningless without solid corroborative evidence — not furnished by Lopez and Lynch. Melecio’s testimony, questionable to start with, is truly remarkable when neither Lopez nor Lynch mention he was at Lopez’s apartment when the video was shown. Their failure to mention his presence to Attorney Riccio consigns that offer to the slag heap. Therefore, the relevance of proof that Mr. Lynch called the petitioner to tell him about Melecio is lost on the court.
Equally elusive is the significance of the petitioner’s car trunk full of clothing, evidence of which is advanced to illustrate ineffectiveness of counsel. No one is disputing the petitioner’s claim that he went to Ms. Peton’s apartment and removed his clothing at a time she was absent. This does not affect the state’s case in the slightest. CT Page 3729
E
Though the petitioner alleged that his counsel’s pre-trial investigative efforts were deficient, the investigator working for defense counsel located an eye witness, one Kristine Parker, who had relocated to Oklahoma. He spoke to her on the phone and had her statement to the police, given right after the shooting she observed. The petitioner argues that the “opportunity to challenge Ms. Peton’s ability to accurately relate what had occurred” was missed.
Counsel allegedly failed to show the differences in the chain of events as observed by Ms. Parker and Ms. Peton. This is a criticism of trial counsel’s concern that “attacking” the complainant who had received three bullet wounds would entail more risk than was warranted by the claimed minor difference.
The court cannot find fault with trial counsel’s decision and as noted above, he went quite far in cross-examining Ms. Peton about the false accusations and statements. That was much more serious material and apparently cut no ice with the jury.
F
The petitioner presented Attorney Conrad Seifert as an expert witness and briefed those portions of his testimony that he claims reflect ineffective assistance.
One of these claims is that the alibi witnesses — Lopez and Lynch should have been served with subpoenas, first for the alibi defense and then to avoid permitting the state to make a missing witness statement.
The court has discussed above these two persons and the so called alibi defense. If called, they would have wound up charged with perjury after being confronted with their contradictory statements. It is inconceivable that their testimony would have resulted in an acquittal. Insofar as Lynch is concerned, there is every indication that he would not have appeared and if he did appear that he would not testify — as was the case in this habeas case.
Attorney Seifert testified that it was ineffectiveness on counsel’s part “for failing to examine the physical evidence before trial.” This is apparently due to counsel’s failure to CT Page 3730 discover the fourth bullet, imbedded in a rolled up belt that was located in an inside pocket of Ms. Peton’s jacket. He says at one point: “The case got a lot worse for this accused after that fourth bullet was found.” He felt this was consistent with attempted murder. What defense counsel should have done about that fourth bullet or how it became his fault is unclear. Because of where it had become lodged, it was not recovered immediately and only a careful examination produced it.
G
The petitioner has advanced several issues under the caption “Failure to Support Petitioner’s Testimony.” A substantial part of this section is repetitive. We once again hear that counsel failed to prove that the petitioner went to the Peton apartment to remove his belongings and they were in the trunk of his car. What this has to do with the crime scene and time eludes the court. It would appear that the petitioner’s theory about a “pattern of truth” has been adopted by counsel.
The petitioner’s brief is devoted to a detailed discussion of the investigations conducted by Officer Bishop. His attempts to collect gunshot residue were unsuccessful. Counsel argues that the negative reports “would have reinforced the absence of gunshot residue to the jury.” To what phase of the case this criticism is directed remains unclear. None of this evidence, including the discussion of cleaning rags and materials in the trunk of the car, weaken in any way the uncontroverted fact that Ms. Peton received these bullet wounds and a fourth bullet lodged in her jacket. Residue or not, trunk contents not withstanding, the strong case referred to by the Appellate Court was not affected by these factors had they been re-explored by the defense.
While counsel feels it necessary to repeat many of his claims, the court will not revisit the suggestion that Ms. Parker’s testimony would have impacted on the credibility of Ms. Peton. What possible discrepancies might have been developed would not have negated that fact that she saw basically what Ms. Peton described.
Returning to the fourth bullet, the petitioner lists its discovery under “Failure to Support Petitioner’s Testimony,” and suggests that had the petitioner known of this discovery it might have altered the petitioner’s position. On the other hand, it CT Page 3731 might not — a matter of sheer speculation which ignores the fact that the state still held the stronger hand. It also presumes counsel never told the petitioner about the late discovery of the bullet.
The court finds nothing in defense counsel’s treatment of the complainant at trial on the questions of which hand held the gun and when and where the car was parked. With something to gain, one can (and defense counsel did) closely question a witness. This also makes sense if you know what the responses will be as was the case with Ms. Peton’s lying to the police and housing authority. Having examined the DCF records and read her trial testimony, it appears to the court that counsel could very easily have here riled the jury by seeming to be attacking her on minor details.
H
The petitioner also claims he was put on the stand in his own defense but not prepared for what might follow with the state in possession of the letters he had written to the complainant, Ms. Peton, while awaiting trial.
The court notes that had the petitioner not written these letters, there would have been no problem. However, a re-reading of the petitioner’s testimony reveals a minimal involvement of material from the letters. Most of his cross-examination arose from his direct-examination. That direct-examination included the petitioner’s recitation of events preceding his arrival at the Lopez apartment to watch videos.
Further, while little came out of the cross-examination on the letter contents, the petitioner’s testimony could not have endeared him to the jury. Thus, his participation in Section 8 housing code fraud resulted from his personal attack on Ms. Peton. His earnings, lifestyle and contribution to the support of his child, were quite revealing but that came out without the letters.
The court rejects this claim.
I
The prosecution had done a thorough job of preparing the case against the petitioner. At trial, he was asked why a call was CT Page 3732 placed from his cell phone to the Lopez apartment at around 5 a.m., if he was already there, as he had testified. (This question came up again at the habeas trial.).
The petitioner responded with a detailed account which had him knocking over the Lopez phone, fearing he had broken it, and taking the time (at 5 a.m.) to use his cell phone to call the Lopez number and ascertaining he had indeed done some damage to it. In fact a repair was done to the Lopez phone line on November 9th after a November 7th service call.
Proof of this incident, the petitioner suggests would have shown he was telling the truth. (Earlier in the criminal trial, the petitioner was asked about such a call and said he had no reason to call there.).
Defense counsel testified that he had checked the phone company records and learned the November 9 repair was done outside the house and had nothing to do with the inside phone the petitioner claims to have damaged on November 4th.
This claim requires no further comment.
J
The petitioner is critical of defense counsel’s failure to object when the prosecutor asked him to comment on the testimony of Mr. Lamp. The Appellate Court addressed this claim in the criminal trial appeal and accorded it little, if any, significance. State v. Abrahams, id., at 780-81.
Defense counsel could very well have concluded that it was neither unfair nor prejudicial “in light of the record of the case at the time.” (Abrahams, at 781).
This exchange was over a minor detail that had no probative value and merely showed a difference between the petitioner’s version and Mr. Lamp’s version as to who first arrived at the parking lot, hours before the shooting.
Even on the petitioner’s apparent theory that resolving all these trivial details in his favor would compel a jury to disregard the account of Ms. Peton, this subject hardly warrants the attention accorded it. CT Page 3733
K
Several claims are raised under the subject heading of “Failure to interview potential witnesses,” starting with Ms. Nonna Taylor-Preston who testified at length.
Hearing shots, she testified that she saw somebody walking away from the building, saw the shooting victim lying on the ground and saw a black car leaving. She then identified the car as that of the petitioner’s, which she had seen on the premises before.
Trial counsel then conducted an effective cross-examination which suggested this witness may have been influenced by a newspaper story she read prior to giving her written statement to the police.
In the case of Ronald Fuller, the testimony was that he saw a shiny black vehicle that looked like a Chrysler. And, while the petitioner’s car was not a Chrysler, it was a dark colored vehicle and Fuller recognized the car as his, having seen it in the parking lot and having seen the petitioner working on it in the lot. He was also acquainted with the prior vehicle owned by the petitioner and described it and noted the expensive custom wheels on the black vehicle he observed. At the habeas trial, Mr. Melecio said he was so taken with the custom wheels on the petitioner’s car that he commented on them in his phone conversation with Mr. Lynch (see discussion page 8-9, supra).
Again, trial counsel effectively cross-examined Mr. Fuller and got him to admit that he had first stated the car he observed was a Lincoln.
The batch of car ads from newspapers (Exhibit 15) the petitioner offered at the habeas trial would have added nothing to the defense. The court has examined them and to the casual observer they don’t reveal startling differences which would totally discredit disinterested witnesses telling what they observed at 5 a.m., in a semi-dark parking lot.
Defense counsel did obtain literature on the vehicles mentioned to explore the likelihood of impeachment and decided against that tactic.
The petitioner further argues defense counsel should have interviewed and subpoenaed Sharon Marmaras, vaguely suggesting CT Page 3734 that somehow her observations would create doubt as to Ms. Peton’s version. Her statement to the police (Exhibit 11) substantially supports Ms. Peton’s recounting, especially when she says “. . . it looked to me like the person was confused.” Apparently referring to Ms. Peton who had just been shot three times.
The defense hardly needed the jury to hear again how Ms. Peton was moving with three bullet wounds in her limbs and buttocks.
Trial counsel testified that he consulted with Marilyn Miller, an expert on gunshot residue. He made the tactical decision not to call her as her testimony would have been inconclusive. The petitioner testified counsel told him that if Ms. Miller found no residue in his car, it would prove he was not the shooter. Of course, this is an absurd statement since Ms. Peton was not shot inside the car.
As the court noted during the habeas trial, the absence or presence of residue did not prejudice the petitioner. Had residue been found, the jury would have the additional fact to consider that the shooter was at close range. The presumption that follows is he must have meant business!
The petitioner argues with respect to this (and other) testimony that he was prejudiced “in terms of presenting the jury with an alternate set of events to consider.”
The court has not been able to find what the alternate set of events could be and the petitioner’s only suggestion is that Ms. Peton was lying and someone else was waiting for her to arrive home and shot her. She then decided, allegedly, to let her attacker go unpunished so that she could get even with the petitioner and name him.
The court finds nothing in the case before it to substantiate the vague reference to a conflict of interest because sometime earlier he had represented Ms. Peton’s daughter Patricia Farmer, then a minor, in a criminal matter. Petitioner’s brief states (page 57) “The potential conflict continued unabated.” Counsel’s cross-examination of Ms. Peton would dispel any notion that he was going easy on her and Ms. Farmer had nothing to do with the petitioner’s conviction.
L CT Page 3735
The petitioner argues defense counsel was ineffective because he did not move to have the firearms charge severed. After conceding that the state determines what charges are to be brought, the petitioner goes on to discuss his decision to testify and states that the charge as a convicted felon prejudiced his testimony.
The court finds this claim has no merit and entails speculation at best.
M
The petitioner testified that he had anticipated he would be represented in his criminal case by Attorney Frank Riccio. In fact, immediately after the plaintiff’s arrest, Mr. Riccio interviewed the petitioner’s friend, Mr. Lynch. He was not successful in contacting any of the other persons whose names he was given, but he took notes of his interview with Lynch (Exhibit 1).
Apparently, the petitioner continued to be in communication with Mr. Riccio while he was represented by trial counsel and in a letter to the petitioner Riccio suggested some strategy which could well be construed as undermining trial counsel’s position and ability to maintain a professional relationship with his client.
The Lynch notes (Exhibit 1) and Mr. Riccio’s letter to trial counsel (Exhibit 2) are also remarkable in that in neither item does Mr. Riccio mention “Tito” (Mr. Melecio) as being present at the Lopez apartment on the night-morning of the shooting.
When he was cross-examined about the phone conversation he received from Mr. Lynch (in which Lynch told him about “Tito’s” presence) the petitioner was asked why he didn’t tell Lynch to call his lawyer. His response was “Because he had already given the statement to Riccio, and I already knew about that.” He stated he didn’t know “Tito” was Mr. Melecio until they met in 2002.
This phone call was also the focal point of an attack on trial counsel’s efforts, with the petitioner presenting an argument that had counsel preserved the phone tapes, he could have shown that Lynch called him to tell about Tito’s (Melecio’s) presence CT Page 3736 at the apartment.
The petitioner may see this as part of the “pattern of truth” he was attempting to establish, but in the overall picture, it is suspect, to say the least and not probative of any issue of assistance to the defense.
N
The petitioner reserves one of his most vehement attacks on trial counsel for his failure to terminate the petitioner’s long and bitter attack on the prosecution, court and court system. Of course, this was after conviction at the end of the sentencing hearing.
Having read the criminal trial transcript in its entirety and observed the petitioner and heard him during the habeas trial, it is hardly likely that defense counsel could have cut short this verbal assault. This was no newcomer to the criminal justice system and it is obvious that he is not tolerant of those who take positions contrary to his best interests. No one was going to use verbal persuasion to cut him off. He was not influenced by the court’s warnings so defense counsel was faced with an impossible dilemma.
O
In the habeas trial, each side presented an expert witness. The court does not accept the opinion of Attorney Conrad Seifert who was critical of the defense’s pre-trial investigation, trial tactics, and failure to stop the petitioner from creating a total debacle with his remarks at sentencing.
As with the petitioner’s basic complaints, this expert relied to a great extent on speculation and some unsound reasoning. He states that “The case got a lot worse for this accused after that fourth bullet was found.” (Tr. pg. 91.) How things would have improved if the defense found the fourth bullet eludes the court. Would the defense not reveal this? It is also unclear why the fourth bullet suddenly transforms the case — three bullets imbedded in you is not a breach of peace.
Mr. Seifert, in answer to a question from the court, referred to “evidence in this case suggesting, just as Mr. Abrahams testified, that he had a — he had some kind of shot at beating CT Page 3737 the attempted murder.” (Tr. Pg. 92.) He stated that the shots were not at vital organs and were thus consistent with not
attempting to murder.
The court has found nothing to support this notion.
It also ignores the medical testimony about the nature of the wounds and the very good chance that a bullet could well be deflected or veer to a vital organ. It also ignores the fact that Ms. Peton testified that the petitioner’s weapon misfired as he attempted to shoot her again and again.
This witness also agreed with the court about the tactical decision facing trial counsel over alleged improper remarks made by the prosecutor. They were of no major significance in their entirety, and the Appellate Court accorded them little significance in its decision affirming the conviction.
Mr. Seifert was also critical of counsel’s failure to “rehabilitate” the petitioner after his destructive testimony. For example he suggested that counsel could have asked the petitioner: “You wouldn’t have used violence to give her a dose of her own medicine, would you?” Of course, the petitioner would have answered “no.”
To suggest that that type of “rehabilitation” would have made a difference in the outcome of this case strains one’s credulity.
The court rejects this expert’s opinion and finds that of the respondent’s expert Thomas Farver, better reasoned, more realistic and better supported. Mr. Farver touched on all of the salient features of the state’s case and pointed out the risk of appearing to attack a sympathetic victim, problems with uncooperative witnesses who would have to recant prior statements, and interfering with the petitioner’s right to allocution.
CONCLUSION
The court concludes that trial counsel performed well above the level of competence of criminal defense lawyers. The plea bargained disposition of a total effective sentence of 20 years speaks to this evaluation. At trial, counsel was faced with a near impossible task, immensely burdened by a client with an allegiance to his preferred counsel and a distorted notion that CT Page 3738 his contrived episodic inventions would overcome the state’s ironclad case. The investigation appears to have been thorough in all relevant areas.
The petitioner’s claims are based on speculation and in some instances sheer fantasy. Accepting all of the factual premises advanced, he has not demonstrated how the outcome of the trial would be changed in his favor.
The petition is denied and judgment may enter for the respondent.
Anthony V. DeMayo Judge Trial Referee
CT Page 3739