2008 Ct. Sup. 8191
No. TSR-CV05-4000616-SConnecticut Superior Court Judicial District of Tolland at Rockville
April 28, 2009
THE COURT: We’re back on the record in the matter of Mr. Gordon Jones versus the Warden. I want to thank both counsel and witnesses, Mr. Jones included, for their testimony and argument today. The Court has reviewed the entirety of the exhibits and the Court did that on a number of breaks, as well as in this particular court break and during the luncheon recess. All of the exhibits having been admitted as full exhibits.
Based upon the evidence presented and a review of the exhibits, the Court makes the following findings. The petitioner, Mr. Gordon Jones, commenced this action on or about August 19, 2005. He filed a petition for a writ of habeas corpus challenging the legality of his detention. The Court finds that the petitioner was originally charged upon information with murder in the first degree, in violation of Connecticut General Statute 53a-54a.
Petitioner at the time of his arrest, on or about August 1, 1998, was approximately thirty years old. Petitioner was represented initially and through a hearing on probable cause, by Public Defender Martin Zeldis. Petitioner thereafter was represented by Assistant Public Defender Ross Delaney in Hartford, Connecticut.
After approximately thirteen and a half months of representation, Mr. Delaney then removed himself from representing Mr. Jones, perceiving a potential conflict with a witness involved.
Thereafter the petitioner was represented by special Public Defender Attorney John Forrest. The Court finds that Attorney Delaney while representing Mr. Jones communicated with his client, which would be expected. Mr. Delaney at the time had been a public defender for in excess of ten years, and was experienced in representing individuals charged with criminal offenses, both felonies and misdemeanors. As of today’s hearing, wherein Mr. Delaney testified, the Court accredits Mr. Delaney’s testimony that he has probably represented in excess of 20,000 individuals in defense of criminal offenses. That would be both in the Part A and Part B criminal courts.
CT Page 8192 In testifying today the Attorney Delaney, as well as Attorney Forrest, could not recall specifically the events and discussions dating back some ten years. But the Court notes that at least with Attorney Delaney, he did have possession of a file which he apparently reviewed prior to today’s testimony, the contents of which apparently helped to refresh Attorney Delaney’s recollection of certain of the communications and events which transpired during the period of his representing Mr. Jones.
The Court finds that Mr. Jones while represented by Attorney Forrest, pursuant to the Alford doctrine, entered a plea of guilty before the Honorable Judge Patrick Clifford on a reduced and substituted charge of manslaughter in the first degree with a firearm on January 3, 2000. Representing the State of Connecticut was Assistant State’s Attorney Michael Gailor. Subsequent to that date a presentence investigation was ordered and produced. And as was indicated on the record on January 3 at the time of sentencing, pursuant to a plea agreement between the state and counsel for Mr. Jones and Mr. Jones, an agreed upon recommendation was imposed in the amount of twenty-seven years to serve.
That encompassed both the manslaughter in the first degree with a firearm and a second charge of violation of probation. The Court finds that at the time of Mr. Jones’ arrest, he was indeed on probation for an offense of robbery in the second degree in violation of Connecticut General Statute section 53a-135(a)(1). At that time I believe Mr. Jones was sentenced by Judge Miano to a term of imprisonment of ten years, suspended after serving five years, five-year period of probation with a number of special conditions, one of which was do not possess any firearms.
At the time of the sentencing on February 25, 2000, the Court, Judge Clifford, imposed a sentence of five years on the violation of probation, which the Court imposed concurrent with the twenty-seven years on the manslaughter in the first degree with a firearm, for a total effective sentence of twenty years to serve. Petitioner, in essence, challenges the validity of his guilty plea and seeks to have this Court vacate the plea and impose a lesser sentence than twenty-seven years. Reference has been made to twenty-five years on the same charge of manslaughter in the first degree with a firearm, five years of which, the Court notes, is nonsuspendable pursuant to law.
In the course of this hearing, counsel by agreement admitted a number of exhibits. Petitioner’s 1 was a statement which the petitioner himself gave to the Hartford Police Department within days of the events of July 31 of pardon me — of 1998. Petitioner’s 2 was a psychological evaluation from a Doctor Meisler in Hartford. Petitioner’s 3 is a letter to Mr. CT Page 8193 Jones from his then counsel, Attorney Ross Delaney, which letter has been referenced throughout the course of these proceedings. In evidence — and I will not review the entirety of them — are a number of exhibits on behalf of the respondent. A few key exhibits including a transcript of the plea proceeding, which is Respondent’s A and that occurred, as I indicated, on January 3 of 2000.
The sentencing is Respondent’s B, February 25 of 2000. The Court has indeed reviewed the information sheets, which are logged in as Exhibit C through E. The Court also reviewed all of the police reports, which are in evidence, and the various officers at various stages of the investigation, including Exhibits M through QQ which include a number of reports from a number of officers involving witness interviews, observations, review of medical records of the decedent, a Mr. Caldwell, as well as the medical examiner’s information from Doctor Katsnelson regarding the mortal wounds suffered by Mr. Caldwell.
As a result of a review of this evidence, the Court would make the following findings. On July 31, 1998, approximately 12:45 a.m., Hartford police were dispatched to the area of Brook and Matthews Streets in Hartford — Mather Streets in Hartford on a report of a shooting. On arrival, police observed a crowd of people gathered around an occupied car with a black male bleeding from a gunshot wound. That individual, Mr. Richard Caldwell, would later die from a gunshot penetrating his right side, lodging a bullet into his right lung. The death was reported as a homicide.
Quick investigation by members of the Hartford Police Department turned up a number of eyewitnesses, at least one of whom placed the petitioner at the scene with a gun, which he fired in the direction of the decedent’s vehicle. Petitioner was observed earlier in the evening getting beat up by two individuals, one of whom was an Orlando Detouch. That’s D-E-T-O-U-C-H. I think Mr. Jones pronounced his name Detouch. Believing he and his companion had been ripped off in a drug deal, Mr. Detouch and the second male jumped the petitioner.
On being interviewed by the police, the petitioner gave a statement — in evidence as Petitioner’s 1 — admitting that he fired a gun in direction of the decedent, as he was beaten by the occupants of the vehicle. An unknown period of time had elapsed between the assault on the petitioner and the petitioner actually leaving the scene, getting a gun, which he then placed in his waistband and then returning to the scene.
Just prior to firing the gun, the petitioner was seen approaching the CT Page 8194 Honda vehicle, pointing the gun at the occupants, and heard yelling “What’s up now.” At that point, the petitioner was observed firing one round toward the victim. The victim apparently traveled onward with the car in motion, eventually collided with a light pole.
Petitioner’s claims are set forth in his complaint filed as an amended petition February 27, 2009. And in essence the petitioner has articulated claims of ineffective assistance of counsel, one, against his attorney Ross Delaney and in count two, claims of ineffective assistance of counsel against his attorney John Forrest. Case law is clear in this area of the standards which both counsel are acquainted with, but the Court will review. The criminal defendant’s right to the effective assistance of counsel is guaranteed by the Sixth and Fourteenth Amendment to the United States Constitution, and by Article 1 Section 8 of the Connecticut Constitution.
To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668 667 104 Supreme Court 2052 80 Lawyer’s Edition Second 674 1984. Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. A claim will succeed only if both prongs are satisfied. It is well settled that a reviewing court can find a petitioner — can find against a petitioner on either ground, which ever is easier. Open parentheses citations omitted, internal quotation marks omitted.
Small v. Commissioner of Correction, 286 Connecticut 707, 712-13, 946 Atlantic Second 1203, cert denied sub num. Small v. Lentz, 129 Supreme Court 481 172 Lawyer’s Edition Second 336 2008. Turing to the prejudice component of the Strickland test, it is not enough for the petitioner to show that the errors made by counsel had some conceivable effect on the outcome of the proceeding. Rather the petitioner must show that there’s a reasonably probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. When a petitioner challenges a conviction, the question is whether there is a reasonable probability that absent the errors, the fact finder would have had a reasonable doubt respecting guilt.
Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512 948 Atlantic Second 365 cert. denied, 289 Connecticut 906, 957 Atlantic Second 868 2008. This case arises from a guilty plea, as has been pointed out. Under the test in Hill v. Lockhart, 474 U.S. 52, 59 106 Supreme Court 366, 88 Lawyer’s Edition Second 203 1985, in which the United States Supreme Court modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a CT Page 8195 guilty plea. The evidence must demonstrate that there is a reasonable probability that but for counsel’s errors, the petitioner would not have pleaded guilty and would have insisted on going to trial. Internal quotation marks omitted.
Washington v. Commissioner of Correction, 287 Connecticut 792, 833, 950 Atlantic Second 1220 (2008), it is encumbent then for the petitioner to present evidence that had he proceeded to trial, he would have achieved a more favorable outcome. See Copas v. Commissioner of Correction, 234 Connecticut 139 157 note 10 662 Atlantic Second 718 (1995). Also Brandy v. Commissioner of Correction, 89 Conn.App. 387, 393 note 5, 873 Atlantic Second 1061, a 2005 decision of the Appellate Court.
So it’s a high burden which the petitioner has in prevailing on his claims. The Court would note and appreciate counsel’s comment on the reasons for not calling an expert attorney witness. This Court will note that my judgment is based upon a reasonable standard, not basing it upon my personal experience as a defense attorney representing individuals in felony and misdemeanor criminal cases, and a trial lawyer for twenty-three years representing individuals accused of crimes. And I should indicate a couple of those years were initially, back in the mid to late 80s, as a prosecuting attorney.
But based upon the evidence presented here, I would indicate in the past this Court has found little value in the presentation of expert attorney witnesses and certainly understand the reason for petitioner’s counsel not calling a lawyer professional witness to opine on the issue of effectiveness. As I indicated, in February 2009, the petitioner filed an amended petition where the claims are set forth. With regard to the claims against Petitioner Delaney, specifically the petitioner alleges that Mr. Delaney was ineffective for allegedly failing to represent the petitioner effectively during the plea bargaining stage of the representation.
Specific claims are made in subparagraphs (a), (b), (c), (d), and (e). Essentially, without reading each, the petitioner claims that Attorney Delaney failed to exploit certain aspects of the defense on the part of Mr. Jones. This Court cannot conclude that Attorney Delaney’s performance was in anyway deficient. What’s more, the Court finds no prejudice to any conduct by Attorney Delaney. The Court obviously finds, as Mr. Jones appreciates, that Mr. Jones entered the plea while represented by Attorney Forrest.
In review of the charging documents, it’s clear that the petitioner entered a not guilty plea sometime in August to the murder charge, and CT Page 8196 also entered a pro forma denial on the violation of probation. And according to the documents in evidence, one of which is a clerk’s record which is Petitioner’s D, there are some twenty to twenty-one court appearances that are reflected. Now not all of those dates may have been actual discussions in court, the Court will not speculate. In other words, whether it was a discussion with counsel in the bullpen and Mr. Jones was not brought into court. But it’s clear there was a number of court Conferences between counsel and client.
The Court accredits and has observed the testimony of Attorney Delaney where he indicated that he advanced the somewhat sympathetic posture of the petitioner and cooperative posture of the petitioner from the outset in giving a statement where the petitioner admitted to shooting in the direction of the decedent. This Court cannot conclude that Mr. Delaney did not maximize the import of either the circumstance of the shooting, the beating which preceded the shooting, in as much as the charge was eventually reduced from murder to manslaughter in the first degree with a firearm.
It is the opinion of this Court that that in and of itself was a monumental accomplishment on the part of a defense attorney, that Attorney Delaney developed a strategy, reviewed all the reports, witness statements, met with the client, one of which, was to potentially explore a defense of extreme emotional distress, as was noted by both Attorneys Delaney and Forrest, which the Court accredits. The most favorable outcome to a defense of extreme emotional distress, by a finder of fact, in the case of a jury would be for the jury to conclude the defendant was guilty of manslaughter in the first degree with a firearm, thereby avoiding a conviction for murder pursuant to section 53a-54a of the General Statutes.
And the Court takes judicial notice that under the murder statute, if there was a conviction, there would be no eligibility for parole. So it did not make a lot of sense to the attorneys to proceed to trial given the strength of the state’s case. And in this Court’s view, Attorney Delaney maximized the benefit of the petitioner’s mental state at the time. The Court accredits the testimony by Attorney Delaney and Mr. Jones, that it was Mr. Gailor’s position as the assistant state’s attorney prosecuting this case initially that he made an offer or a plea bargain of twenty-five years to serve on the charge of murder.
That being so, had the petitioner considered and accepted the offer there would have been no parole. This Court finds that the petitioner implicitly rejected the said offer, and the Court accredits the testimony of the attorneys that the case proceeded to further plea negotiation CT Page 8197 after the rejection of the twenty-five years to serve on the murder.
In looking at Petitioner’s 3, the letter by Mr. Delaney to Mr. Jones, the Court accredits the testimony of Mr. Jones that the letter was given actually to the subsequent attorney, Attorney Forrest, and then provided to Mr. Jones. But what is clear from the contents and the four corners of the communication by Mr. Delaney is that he’s notifying Mr. Jones of his ceasing representation given the referenced conflict, which Mr. Delaney talks about in the July 21, `99 letter which is Petitioner’s 3, which is a full exhibit.
But in discussing aspects of plea negotiation, on page two, Mr. Delaney references or summarizes discussions with Judge Clifford where Mr. Delaney states Judge Clifford may have indicated that twenty and five years consecutive may be an appropriate sentence. There is also discussion of different lengths of time, including thirty years, in the context of a right to argue for less. This Court does not conclude that the letter communicates a tacit offer by the state or a court indicated sentence of twenty years on manslaughter with a firearm first degree, and five years on the violation of probation consecutive. Without bringing into the process what I know about Judge Clifford and what goes on in the dynamic of a pretrial discussion, it is not uncommon for a judge such as Judge Clifford pretrying a case such as this, to indicate informally what the Court might consider an appropriate sentence.
That being so, this Court sitting as the judge here, Mr. Jones, cannot conclude there was a tacit offer of twenty-five years which was either made or rejected. Suffice to say, subsequent to the representation by Attorney Delaney, it is clear Attorney Forrest represented the petitioner who entered the guilty plea, which was referenced.
In count two, the petitioner makes claims of ineffective assistance in the plea bargaining. And again, the petitioner alleges that his then attorney, Mr. Forrest, failed to sufficiently emphasize that the incident occurred after the petitioner was assaulted, and various other aspects which are spelled out in detail in suballegations (a), (b), (c), (d), and (e), all of which address the issue of maximizing certain factual and historical aspects of the case on behalf of the petitioner, Mr. Jones. This Court cannot conclude that Mr. Forrest was deficient given what the Court has already referenced, and that is the Goliathian task of reducing the state’s offer from murder to manslaughter in the first degree.
Now what is clear, the petitioner’s burden having been articulated, had he not accepted this agreement and then go to trial, there’s absolutely CT Page 8198 no evidence which this Court can conclude Mr. Jones would have faired better at trial. And the Court has to take into account Mr. Jones’ then existing criminal history. And it is clear, although there was an apparent gap in time between convictions that Mr. Jones as of the time of the offense in 1998 had, in this Court’s view, a substantial history including a conviction for burglary for which he was on probation, a conviction of rioting in the correctional institution, for which he was actually given, I believe a year, a conviction of felony possession of drugs, burglary in the third degree, and escape.
Aside from the criminal history, which was a full exhibit in this case, Petitioner’s — excuse me — Respondent’s QQ reference to Mr. Jones’ criminal history is also made in the presentence investigation, which is Respondent’s I. In addition to those offenses which the Court has already indicated, there were also convictions for failure to appear, one in 1988, a prior violation of probation in 1989 for which Mr. Jones was given a two-year sentence in September of `89, he had been given a year on the escape, six months on another failure to appear, a year on the rioting, and the Court has already referenced the robbery probation which he was on at the time of this offense on July 31.
So in this Court’s view, the history was indeed substantial and there’s no way this Court can conclude that had Mr. Jones proceeded to trial, even if successful on the extreme emotional disturbance defense, he would have gotten a lesser sentence than twenty-seven years. On the contrary, Mr. Jones would be exposed to far greater time. On the murder alone fifty to sixty years, for which parole would not be possible, on the manslaughter with a firearm forty years, on the violation of probation an additional five years.
The Court cannot conclude that either attorney’s conduct was deficient. And it’s clear from review of the transcripts of the plea proceeding and the sentencing that Mr. Jones entered the plea of guilty under his advice of counsel, pursuant to North Carolina v. Alford, upon the belief that there was sufficient evidence to prove him guilty. The Court made mention of the eyewitness testimony, not to mention the timeline involved. There was a great deal more evidence then, what I’ll call, the confession, the statement which is Petitioner’s 1.
And I have to candidly indicate because I heard the petitioner state the term a number of times, I had no choice, I had no choice to enter the plea. This Court takes the view that Mr. Jones had the choice when he entered the plea of guilty before Judge Clifford on January 3 of 2000. The Court made a very thorough canvass, the petitioner was asked not only if he had adequate assistance of his counsel, but whether he CT Page 8199 made a knowing and full waiver of his rights to a trial by a jury. He indicated he did and made a brief statement acknowledging remorse for the shooting, as he expressed in the statement which was Petitioner’s 1.
By the same token, it was Mr. Jones who made the choice to use a firearm on the evening which resulted in the death of Mr. Richard Caldwell. The Court also accredits the statement in the presentence report, Petitioner’s I, which does indicate a past history of firearms use. Why else would Judge Miano order as a condition on the robbery probation no firearms? The Court cannot conclude there is either prejudice or deficient performance under either prong of Strickland and under the analysis in Hill v. Lockhart.
The Court would note this is the second such case that has appeared before this Court I think in this term involving a murder charge reduced down to manslaughter in the first degree with a firearm. And frankly, this Court is astounded under these circumstances, knowing what a lawyer has to do to get to the point of a reduction to manslaughter, under these circumstances where had the case proceeded to trial, Mr. Jones could very well have been convicted of murder. This Court is astounded that the claims of ineffective assistance of counsel against these two attorneys are levied.
On the other hand, the Court acknowledges it’s now eleven years after the event. If the case were restored to pre-plea status and the matter proceeded to trial, it’s certainly unclear and speculative whether the witnesses would still be present and whether the strength of the state’s prosecution would indeed remain. Having said that, for the foregoing reasons the petition for a writ of habeas corpus is denied. Judgment shall enter in favor of the respondent; petitioner’s counsel is requested to prepare a judgment file within thirty days. I am requesting that the clerk complete a notice of appeal rights. I am requesting the marshal hand those rights to Mr. Jones through his attorney, Mr. Fox. I am requesting a transcript of this on-benching ruling be prepared for my signature and be made a part of the file. I have no objection, Mr. Fox, that any appeal period not run until you have possession of the transcript of the ruling.
And again, thank all parties. Wish you the best, Mr. Jones. With that, this matter is concluded.
MR. FOX: Your Honor, may I — just one thing. You said somewhere toward the beginning that Mr. Jones was seeking to withdraw his plea, and that’s not the case.
CT Page 8200 THE COURT: No. I indicated I think you wanted the Court to resentence Mr. Jones to a lesser sentence. And what I just indicated, my last comment, was to somehow restore him to a pre-plea status. In essence, maybe going the step further and resentencing him to twenty-five years or some other sentence less than twenty-seven. And obviously the Court needn’t get to the issue of relief, not having concluded that the petitioner has prevailed. Anything further, Mr. Fox?
MR. FOX: Well, I just wanted to avoid the appeal attorney having to ask for a motion for articulation. So that’s sufficient to clarify it I think. Thank you.
THE COURT: All right. Attorney Masi?
MS. MASI: Yes, Your Honor. I would just request that Your Honor was going to indicate —
THE COURT: Yes.
MS. MASI: — on the record —
THE COURT: I just want to indicate on the record, I am going to reverse a prior order that I entered earlier today and indeed reference the name of the victim, Richard Caldwell. We’re not dealing with a female subject or a minor, and so there’s really no need to redact the names of the victim here. And so the Court will vacate its earlier order earlier today for the respondent or other attorneys to redact or delete names of the victim. Thank you, counsel.
MS. MASI: Thank you, Your Honor.
THE COURT: All right. With that, this Court is adjourned till 10:00 a.m. tomorrow morning.
(At this time, this matter concluded.)
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