Little v. Warden

• Citation: 88 A.3d 621,53 Conn.Supp. 236
• Decision Date: 26 August 2011
• Docket Number: No. CV–08–4002685–S.,CV–08–4002685–S.
• Court: Superior Court of Connecticut
• Parties: Troy LITTLE v. WARDEN, STATE PRISON.

53 Conn.Supp. 236

88 A.3d 621

Troy LITTLE

v.WARDEN, STATE PRISON.^*

No. CV–08–4002685–S.

Superior Court of Connecticut,

Judicial District of Tolland.

Aug. 26, 2011.

Robert T. Rimmer, Old Saybrook, for the petitioner.

David Clifton, deputy assistant state's attorney, for the respondent.

BRIGHT, J.

The petitioner, Troy Little, alleges in his Amended Petition for a writ of habeas corpus, filed on December 20, 2010, that he was denied the effective assistance of counsel prior to his criminal trial, at his criminal trial, and on appeal from his conviction. In particular, the petitioner claims in Count One that his trial counsel, Attorney Thomas Farver, failed to: (1) communicate to him a plea bargain offer made by the state; ¹ (2) properly examine a key witness; and (3) request “balanc[ing]” language in the court's consciousness of guilt charge. In that same count, the petitioner alleges that his appellate counsel, Richard E. Condon, Jr., failed to adequately address the consciousness of guilt charge on appeal.

The trial of the matter was concluded before the court on May 13, 2011. The court heard from five witnesses: the petitioner; Attorney Farver; Attorney Condon (by deposition), Attorney John Waddock, the prosecutor in the petitioner's criminal case; and Darrin Stanley (by videoconference), the witness whom the petitioner alleges was not properly examined by Attorney Farver. The court also received as exhibits: Attorney Farver's notes of a conversation with Attorney Waddock (Pet. Ex. 1); the transcripts of the trial in the underlying criminal case (Pet. Ex. 2–4; Resp. Ex. A); documents related to the petitioner's appeal (Pet. Ex. 5–8); and the notice and transcript of Attorney Condon's deposition (Pet. Ex. 9–10).

BACKGROUND

The petitioner was the defendant in a criminal case, docket number CR–01–0499262, in the Judicial District of New Haven, in which he was charged with murder in violation of General Statutes § 53a–54a and carrying a pistol without a permit in violation of General Statutes § 29–35. The jury found the petitioner not guilty of murder, but found him guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes § 53a–55a and of the carrying a pistol without a permit charge. The trial court sentenced the petitioner to a total effective sentence of thirty-two years to serve. The petitioner was represented at the trial court level by Attorney Farver.

The petitioner appealed his conviction to the Appellate Court, where he raised two grounds. First, he argued that the trial court violated his due process rights by marshaling the evidence in favor of the state. Second, he argued that the prosecutor committed misconduct that resulted in a denial of the petitioner's due process rights to a fair trial. The appellate court rejected the petitioner's claims and affirmed his convictions. State v. Little, 88 Conn.App. 708, 870 A.2d 1170, cert. denied, 274 Conn. 916, 879 A.2d 895 (2005). Attorney Condon represented the petitioner both on his appeal and his unsuccessful petition for certification to our Supreme Court.

As set forth by our Appellate Court, the jury reasonably could have found the following facts. “On the evening of August 16, 2000, the [petitioner] was walking with four young women along the sidewalk on Lilac Street in New Haven. The victim, Kishawn Council, drove a black car alongside the group as it walked. There were three other men in the victim's car. The victim called out to the women to get their attention, and the [petitioner] began to stare into the victim's car. The victim asked the [petitioner], ‘What you looking at?’ and the [petitioner] and the victim began to argue. The victim's car continued to follow alongside the group as the two men argued.

“When the [petitioner] and the women reached the corner of Lilac and Newhall Streets, they turned right and continued down Newhall Street. The victim followed the group and then stopped his car on Newhall Street. The victim got out of his car and approached the [petitioner]. The [petitioner] picked up a stick and continued to argue with the victim. The victim punched the [petitioner] in the face, and the [petitioner] tried to hit the victim with the stick. The victim began to choke the [petitioner] to the point where the [petitioner] was ‘on his tippy-toes about to come off his feet.’ The two men then fell to the ground as the [petitioner] tried to break free.

“A bystander broke up the fight and separated the two men. The victim returned to his car, and the [petitioner] ran across the street to a friend who was standing nearby. The [petitioner] yelled to his friend, asking him for a gun. The [petitioner's] friend initially refused but gave a nine millimeter black handgun to the [petitioner] after he saw the victim reach inside the car. Armed with the gun, the [petitioner] started to run after the victim. The [petitioner] chased the victim in between two houses on Lilac Street and then fired at the victim from the driveway between the two houses.

“The next morning, one of the occupants of the house at 25 Lilac Street found the victim's body on the back steps of the house. The cause of death later was determined to be a gunshot wound to the jaw, which traveled through the victim's neck causing extensive bleeding. The [petitioner]surrendered himself to the police on April 1, 2001, and he was arrested. He was charged with murder and carrying a pistol without a permit. A jury found the [petitioner] guilty of the lesser included offense of manslaughter in the first degree with a firearm and of carrying a pistol without a permit.” Id. at 710–11, 870 A.2d 1170. Additional facts will be discussed as necessary,

LEGAL STANDARD

“The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness.... To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal.... In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction.” (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994). Here, the petitioner claims that the ineffective assistance of his trial and appellate counsel has led to such a result. “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 breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness.... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial [or appellate] strategy.... [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.) Henderson v. Commissioner of Correction, 80 Conn.App. 499, 504, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004). In particular, counsel's decision not to call certain witnesses or offer certain evidence for strategic reasons is entitled to this strong presumption of reasonableness. Grant v. Commissioner of Correction, 103 Conn.App. 366, 368, 928 A.2d 1245, cert. denied, 284 Conn. 921, 933 A.2d 723 (2007).

As to the prejudice prong, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.... The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Strickland v. Washington, supra, 466 U.S. at 691–92, 104 S.Ct. 2052. Consequently, the petitioner must affirmatively show that his counsel's performance had an adverse impact on the defense. Id. at 693, 104 S.Ct. 2052. Put another way, in order to meet the prejudice prong, the petitioner must prove 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...