Aillon v. Meachum

• Decision Date: 30 May 1989
• Docket Number: No. 13542,13542
• Parties: Guillermo AILLON v. Larry R. MEACHUM, Commissioner of Correction.
• Court: Connecticut Supreme Court

Page 206

559 A.2d 206

211 Conn. 352

Guillermo AILLON v. Larry R. MEACHUM, Commissioner of Correction.

No. 13542.

Supreme Court of Connecticut.

Argued Jan. 10, 1989.

Decided May 30, 1989.

John R. Williams, New Haven, for appellant (petitioner).

Julia Dicocco Dewey, Asst. State's Atty., with whom, on the brief, was Stephanie Watkins, legal intern, Hartford, for appellee (respondent).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

HULL, Associate Justice.

The sole issue on this appeal is whether the petitioner, Guillermo Aillon, has established that his convictions on three counts of murder in violation of General Statutes § 53a-54a ¹ should be overturned because of ineffective assistance of counsel. We conclude that the trial court properly rejected the petitioner's claims that the legal representation he received at his third trial was constitutionally deficient and, therefore, find no error.

The long history of events leading up to the present appeal may be summarized as follows. The petitioner was charged with three counts of murder alleged to have occurred on August 14, 1972. The charges against the petitioner arose out of the stabbing deaths of George Montano, his wife, Bernice Montano, and their daughter, Barbara Aillon, the petitioner's estranged wife, in the Montanos' home in North Haven. The petitioner was tried on these charges in 1973 and convicted by a jury, but he was granted a new trial because of an improper ex parte conversation between the trial court and a member of the jury. Aillon v. State, 173 Conn. 334, 339-40, 377 A.2d 1087 (1977). The petitioner's second trial, in 1978, ended in a mistrial when the jury was unable to reach a verdict. Thereafter, the petitioner filed a motion for judgment of acquittal arguing that his retrial was barred by double jeopardy. That claim was twice rejected by this court. State v. Aillon, 189 Conn. 416, 421-22, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S.Ct. 124, 78 L.Ed.2d 122 (1983); State v. Aillon, 182 Conn. 124, 130-31 n. 5, 137-38, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S.Ct. 883, 66 L.Ed.2d 817 (1981). In March, 1984, approximately four months prior to the commencement of the petitioner's third trial, the attorney who had represented the petitioner in his first two trials, Howard Jacobs, withdrew from the case. ² New counsel from the public defender's office, Donald Dakers and Kenneth Rosenthal, were appointed to represent the petitioner in his third trial. They entered their joint appearances on behalf of the petitioner on March 22, 1984. Dakers was primary trial counsel. Rosenthal was his assistant.

Jury selection for the petitioner's third trial commenced on July 23, 1984. On September 21, 1984, the jury found the petitioner guilty as charged of three counts of murder in violation of General Statutes § 53a-54a. The trial court, Hadden, J., sentenced him to three consecutive terms of imprisonment of twenty-five years to life. This judgment was upheld on direct appeal. State v. Aillon, 202 Conn. 385, 521 A.2d 555 (1987). On November 5, 1987, the petitioner filed a petition for a writ of habeas corpus alleging inadequate representation on the part of his counsel in the third trial. After an evidentiary hearing, the trial court, Fracasse, J., issued a memorandum of decision on June 17, 1988, denying the petitioner's claims for relief and dismissing the petition. The petitioner appeals from that judgment.

The gravamen of the petitioner's claim on appeal is that he received ineffective assistance of counsel under our federal and state ³ constitutions at his third trial because his trial counsel lacked sufficient time to prepare an adequate defense. Specifically, the petitioner contends that his counsel's representation was constitutionally inadequate in that they: (1) failed to obtain a hair identification expert to rebut the testimony given by the state's hair identification experts; (2) failed to prepare properly for the cross-examination of witnesses; (3) failed to interview properly an important defense witness before she presented her trial testimony; (4) failed adequately to prepare the petitioner for his trial testimony; and (5) failed to obtain a lesser included offense charge. ⁴

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.... Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a break-down in the adversary process that renders the result unreliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). With regard to the performance component of this inquiry, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id., at 687-88, 104 S.Ct. at 2064-65. Further, the test for prejudice requires that "[t]he defendant ... 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." Id., at 694, 104 S.Ct. at 2068; see also Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988); Herbert v. Manson, 199 Conn. 143, 145, 506 A.2d 98 (1986); State v. Tirado, 194 Conn. 89, 92, 478 A.2d 606 (1984).

The complexity of the petitioner's case cannot be overstated. He had been tried twice before on the same charges without a final resolution of the case. Four separate appeals had been taken by the petitioner since his first trial. Dozens of witnesses had testified at the first two trials and hundreds of exhibits had been introduced into evidence. The materials from the first two trials that needed to be reviewed prior to the petitioner's third trial, everything from trial transcripts to police statements, were voluminous.

Preparation by Dakers and Rosenthal for the petitioner's third trial began in earnest in early May, 1984, when they secured from his former attorney the bulk of the files from the petitioner's first two trials, including the transcripts from those trials. ⁵ Counsel divided up trial preparation responsibilities. Rosenthal's efforts were focused primarily on drafting pretrial motions and memoranda and organizing the materials contained in the files from the earlier trials. As lead counsel, ⁶ Dakers spent most of his time reviewing the materials in those files, including the transcripts from the petitioner's first two trials. The record reveals that the petitioner's counsel filed an exhaustive number of pretrial motions and memoranda covering all aspects of the petitioner's case. ⁷ Rosenthal did most of the work on the pretrial motions, including a complex double jeopardy claim wherein he attempted to secure dismissal of all charges against the petitioner. Dakers testified that he spent "every waking minute" working on the case; he examined all the physical evidence and exhibits, surveyed the crime scene, and reviewed transcripts and other materials contained in the files from the prior two trials. Despite the seemingly diligent efforts put forth by counsel on his behalf, the petitioner claims, and Dakers and Rosenthal so testified at the habeas hearing, that due to a lack of time to prepare ⁸ they failed to render an adequate defense of the petitioner at his third trial in several respects.

The petitioner first claims that his counsel were deficient in failing to secure an expert to rebut the testimony given by the state's hair identification experts. A proper understanding of this claim requires some further discussion. At each of the petitioner's three trials, one of the links between the petitioner and the murders was hair that was found on the bloody bedsheets and blanket in the bedroom of one of the victims. The state produced evidence from two FBI experts that this hair belonged to the petitioner. At his first trial, the petitioner contradicted this evidence through the testimony of Wellon D. Collom, a Pennsylvania criminologist, who stated that there was no similarity between the hair found on the bedsheets and blanket and the petitioner's hair. At the second trial, Collom did not testify in person because of illness, but the trial court permitted his testimony from the first trial to be read to the jury.

At the habeas hearing, Rosenthal testified that he did not contact Collom with regard to testifying in rebuttal at the third trial until "after the state's case was well under way." According to Rosenthal, Collom informed him over the telephone that he was not willing to testify as an expert on hair at the third trial because he had not done hair analysis in many years. Rosenthal did not consider this a serious problem, however, because he believed that Collom's testimony from the first trial could still be read to the jury, as it had been at the second trial, under the exception to the hearsay rule allowing former testimony into evidence when the witness is "unavailable." ⁹ See, e.g., Fed.R.Evid. 804; Practice Book §§ 793, 803. ¹⁰ The state, however, objected to the introduction into evidence of the former testimony. On September 13, 1984, four days before the conclusion of the petitioner's trial, the trial court, after hearing argument, sustained the state's objection and excluded Collom's former testimony. ¹¹

The trial court's ruling meant that the petitioner no longer had available to him, either in person or through transcript, the testimony of a hair expert to rebut the incriminating testimony of the state's hair experts. Rosenthal therefore immediately attempted to secure another hair expert, Dr. Peter DeForrest, to testify. On the day following the...