ABRAHAM v. WARDEN, No. CV 04 4000215 (Jan. 28, 2008)


MATTHEW ABRAHAM v. WARDEN.

2008 Ct. Sup. 1377
No. CV 04 4000215Connecticut Superior Court Judicial District of Tolland at Rockville
January 28, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
CARL J. SCHUMAN, JUDGE.

The only remaining issue in this habeas corpus petition is whether the petitioner’s trial counsel, attorney Thomas Conroy, was ineffective in failing to call John Vitali as a defense witness in support of the petitioner’s self-defense claim during his 2002 trial on manslaughter and firearms charges. See State v. Abraham, 84 Conn.App. 551, 854 A.2d 89, cert. denied, 271 Conn. 938, 861 A.2d 514 (2004).

A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert denied, 546 U.S. 1187 (2006). To prove deficient performance, the petitioner must show that defense counsel’s representation “fell below an objective standard of reasonableness . . .” Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). “[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.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).

“[T]he presentation of testimonial evidence is a matter of trial strategy.” (Internal quotation marks omitted.) Bowers v. Commissioner of Correction, 104 Conn. 738, 744 (2007). In this case, Conroy had ample strategic grounds not to call Vitali as a witness. To begin with, Vitali had told Conroy’s investigator that he did not actually see Marquis Bailey and Marcelino Rivera fighting “because he was talking to Chi Chi on the phone.” He added that, when there were shots, “his head was down.” He also told the investigator that at the time of the incident “he was high on illy.”[1] Thus, based on what Conroy knew, Vitali could not support the petitioner’s theory that he fired a second shot in self-defense.[2]

Even assuming that Conroy somehow should have known that Vitali would testify in the criminal trial, as he did in the habeas trial, that the CT Page 1378 petitioner fired a shot because Rivera was swinging a bat at him, there would have been more than adequate strategic grounds for not calling Vitali as a witness. First, there is no basis to conclude that the one shot Vitali claims to have heard was the second shot and not the first, especially given that Vitali claimed in his habeas testimony to have seen the fight from the beginning. Second, Vitali would have undoubtedly been subject to vigorous impeachment on the ground that, in his prior statement to Conroy’s investigator, he denied seeing the fight. Similarly, the fact that Vitali had failed to provide his account of the petitioner’s efforts to defend himself to the police, especially given that the petitioner was Vitali’s friend and the godfather of his son, strongly detracts from Vitali’s credibility.[3] Moreover, Vitali’s latest account differs significantly from the petitioner’s statement to the police, which was admitted at trial, in which the petitioner never claimed that Rivera came at him with the bat. Finally, Vitali’s testimony completely contradicts the trial testimony of Juan Diaz, who was the main defense witness. Diaz testified in the criminal trial that the petitioner fired the second shot after someone had said “they shot me; shoot him.” (Exhibit J., p. 47.) Vitali, in contrast, testified in habeas court that someone uttered words to that effect after, rather than before, he heard what the petitioner claims was the second shot.[4]

In short, from all that Conroy knew, Vitali did not see the fight and had been using drugs on the day of the incident. Even assuming that Conroy should somehow have known that Vitali would testify differently if called as a witness in the criminal trial, calling Vitali as a witness would have likely been disastrous, as Vitali’s new version of the incident is riddled with inconsistencies and contradictions. It was thus well within the realm of trial strategy for Conroy to decide not to call Vitali as a witness. Bowers v. Commissioner of Correction, supra, 104 Conn. 744.

Similarly, no prejudice arises from any failure to have called Vitali as a witness. For the reasons stated, Vitali’s credibility was highly suspect at best. The addition of his testimony to the trial would not have established “a reasonable probability that, but for counsel’s [alleged] unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458. Therefore, because the petitioner has failed to prove both deficient performance and prejudice, his habeas petition cannot succeed.

The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within CT Page 1379 thirty days of the date of this decision.

[1] “Illy” is apparently a mixture of marijuana or PCP and embalming fluid or formaldehyde. See State v. Rios, 74 Conn.App. 110, 112 n. 6, 810 A.2d 812 (2002), cert. denied, 262 Conn. 945, 815 A.2d 677 (2003).
[2] As Conroy testified, the petitioner needed to justify the second shot to maintain a plausible theory of self-defense.
[3] According to the trial transcript, the police attempted to take a statement from Vitali but were unsuccessful. (Exhibit I, p. 35.)
[4] This aspect of Vitali’s testimony also does not appear in the notes taken by Conroy’s investigator of his interview with Vitali.

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