90 Conn. App. 370 | Conn. App. Ct. | 2005
The petitioner, Janvel Burke, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The habeas court granted the petition for certification to appeal. The petitioner claims that the court improperly concluded that he was not deprived of the effective assistance of trial counsel. We affirm the judgment of the habeas court.
In the opinion affirming the petitioner’s conviction, this court stated that the jury reasonably could have found the following facts. “On May 27,1995, the victim, John J. Walsh, Jr., was working at the Fox Cafe as a doorman. A Fox Cafe employee found the victim on the ground in the Fox Cafe parking lot with blood flowing from his right temple. The victim was taken to the Waterbury Hospital emergency room .... [He died from his injuries.]
“On the basis of a tip, the police questioned David Monell regarding the homicide. After questioning Monell, the police obtained a search and seizure warrant for the [petitioner’s] person and residence. The police brought the [petitioner] to the police station, where he gave the police a written, signed statement. The [petitioner] indicated that on May 27, 1995, while at a party, he and Monell talked about breaking into a car to obtain a car stereo. They drove to the Fox Cafe where they noticed a Dodge Caravan with a car stereo and an alarm. They pulled into the parking lot next to the Fox Cafe, and the [petitioner] approached the Caravan with a flashlight and a screwdriver while Monell waited in his car. Using the screwdriver, the [petitioner] popped the front passenger window, setting off the car alarm, and reached in to open the Caravan door.
“The [petitioner] quickly removed the car stereo from the Caravan using the screwdriver and started to walk
From May 15 through May 30, 1996, the petitioner was tried by the jury and represented by attorney Ralph Crozier. Following the jury trial, on June 12, 1996, the petitioner was convicted of felony murder in violation of General Statutes § 53a-54c and burglary in the third degree in violation of General Statutes § 53a-103 (a) and sentenced to forty-eight years of incarceration. The conviction was affirmed both by this court and our Supreme Court. See State v. Burke, supra, 51 Conn. App. 798; see also State v. Burke, 254 Conn. 202, 757 A.2d 524 (2000).
On January 31, 2001, the petitioner filed a pro se petition for a writ of habeas corpus alleging ineffective assistance of counsel as to his trial attorney, Crozier. Nearly two years later, on January 7, 2003, this petition was amended by the petitioner’s appointed habeas counsel. In the amended petition, the petitioner claimed that Crozier was ineffective in failing to suppress a written statement that the petitioner had given to the police. The amended petition also included claims regarding alleged violations of the petitioner’s fourth amendment rights, illegal arrest and denial of his right to a fair trial.
After the petitioner filed his appeal, the respondent commissioner of correction filed a motion for rectification seeking to clarify or correct four of the six factual findings made by the habeas court in its September 24, 2003 memorandum of decision. Specifically, the respon
As an initial matter, we set forth our standard of review. “Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 299, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001).
“The petitioner’s right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. In Strickland v. Washington, [supra, 466 U.S. 687] the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he
In the present case, the petitioner claims that the habeas court improperly determined that Crozier did not provide ineffective assistance of counsel when, at the suppression hearing, he decided not to contest the admission of the petitioner’s statement to the police
The petitioner has not met the second prong of Strickland and, therefore, cannot prevail on his claim of ineffective assistance of counsel. “A court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if it is easier to dispose of the claim on the ground of insufficient prejudice.” Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988). Although the court based its determination of lack of prejudice, in part, on factual findings that it later corrected in response to the petitioner’s motion for articulation and the respondent’s motion for rectification, the petitioner has not proven that the result of the trial would have been different if counsel had contested the admission of the petitioner’s statement.
First, there was enough evidence elicited during trial in support of the state’s case so that any deficient performance by the petitioner’s trial counsel was not prejudicial to the defense. Derek Morgan, Robert Farina and John Farina attended a cookout at Morgan’s house on May 27, 1995. Each testified that the petitioner had come to the cookout and described to them the crimes he had committed earlier that day. Morgan testified that on May 27, 1995, the petitioner attended a cookout at
The petitioner argues that if his statement had been suppressed there was a strong likelihood that the result at trial would have been different. The petitioner argues that if his statement was suppressed, the statements of Robert Farina and John Farina would have been suppressed under the fruit of the poisonous tree doctrine.
The premise of this argument is that the police were led to the Farinas by the petitioner’s statement, which identified the Farina brothers as persons to whom he had admitted stabbing the victim. The petitioner also argues that it was not certain that Monell would testify when he had charges pending against him and, thus,
The petitioner ultimately asks us to conclude that Morgan would have been the only state’s witness. He then argues that with Morgan as the state’s only witness, there is a strong probability that the result would have been different.
The petitioner has not established that there is a reasonable probability that this chain of events would have occurred. Mere conjecture and speculation are not enough to support a showing of prejudice. See Nieves v. Commissioner of Correction, 51 Conn. App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).
First, the petitioner assumes that if Crozier vigorously had sought to have the petitioner’s statement suppressed, he would have been successful. The petitioner then adds another assumption, arguing that if the statement had been suppressed, the testimony of the Farina brothers would have been suppressed under the fruit of the poisonous tree doctrine because the petitioner said in his statement that he told the Farina brothers about the incident. In making this claim, the petitioner overlooks the fact that Morgan, whose name had been provided to the police by Monell, gave a statement to the police in which he explained that the petitioner, upon returning to his party, told him and the Farina brothers about the incident. In light of this, the petitioner has not shown that there is a reasonable probability that the testimony of the Farina brothers would have been excluded as fruit of his statement.
Finally, the petitioner assumes, as the last link in a sequence of events, that Morgan would be the state’s only witness and that it was likely that the jury would not have found the petitioner guilty of felony murder solely on the basis of Morgan’s testimony, despite the fact that Morgan’s testimony placed the petitioner at the scene of the crime and described how the petitioner had said that he had struck the victim. The petitioner overlooks the fact that the state may have chosen to put on additional evidence if it were left with only Morgan’s testimony. That aside, the petitioner’s conclusion that the state would be left with only Morgan’s testimony depends, for its existence, on speculation and conjecture in which we will not engage. The petitioner has not established that there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the proceeding would have been different. See Carey v. Commission of Correction, 86 Conn. App. 180, 182, 860 A.2d 776 (2004), cert. denied, 272 Conn. 915, 866 A.2d 1283 (2005). Because the petitioner has failed to establish that he was prejudiced by his trial counsel’s representation, we conclude that the court properly dismissed the petition for a writ of habeas corpus.
In this opinion the other judges concurred.
In a written statement signed by the petitioner and dated June 13, 1995, the petitioner admitted to the police that he broke into the Caravan and also stated: “I got the stereo out of the Caravan real quick. I started to walk back to [Monell], and I heard someone’s feet. I saw a white guy running at me, so I threw the radio at the guy to stop him from running after me. The guy kept running after me and tackled me and we both fell to the ground. ... I was struggling with the guy and started swinging both my fists at the guy and then the guy stopped struggling. When I got back to [Monell’s] car, I still had the screwdriver in my hand and figured that I stuck the white guy with the screwdriver. . . . [W]e headed back to the party. ... I told John and Bob Farina and Derrick Morgan about what happened.”
The petitioner claims that the first prong of Strickland was satisfied because Crozier performed an inadequate investigation into the state’s evidence, which led counsel to believe incorrectly that the state already had inculpating evidence against the petitioner, such as the screwdriver and flashlight with the petitioner’s fingerprints on it, a strand of hair from the victim that was found in Monell’s car and that Monell was ready, if necessary, to testify at trial against the petitioner. That investigation led Crozier to
We make no conclusions on the basis of the “inevitable discovery” rule because the habeas court did not expressly make factual findings about it or ground its decision on it. See State v. Degourville, 41 Conn. App. 772, 778, 678 A.2d 485, cert. denied, 239 Conn. 907, 682 A.2d 1008 (1996).