Ostolaza v. Warden

• Decision Date: 25 February 1992
• Docket Number: No. 9612,9612
• Citation: 26 Conn.App. 758,603 A.2d 768
• Court: Connecticut Court of Appeals
• Parties: Simon OSTOLAZA v. WARDEN.

Page 768

603 A.2d 768

26 Conn.App. 758

Simon OSTOLAZA v. WARDEN.

No. 9612.

Appellate Court of Connecticut.

Argued Dec. 2, 1991.

Decided Feb. 25, 1992.

[26 Conn.App. 759] Susan M. Hankins, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (petitioner).

Julia DiCocco Dewey, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Juliett Crawford, Asst. State's Atty., for appellee (respondent).

Before NORCOTT, LAVERY and MAIOCCO, JJ.

NORCOTT, Judge.

The petitioner, Simon Ostolaza, was found guilty after a jury trial of eight counts of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1), and eight counts of risk of injury to a minor in violation of General Statutes § 53-21. ¹ On February 27, 1987, the trial court sentenced the petitioner to seven years imprisonment for each count, to run consecutively, for a total effective sentence of 112 years. The facts regarding this particularly disturbing sexual assault of two minor boys are fully set out in State v. Ostolaza, 20 Conn.App. 40, 564 A.2d 324, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989), and need not be repeated here.

On appeal from this judgment of conviction, this court affirmed all but one count of the petitioner's conviction and reduced the petitioner's sentence to 105 years. See State v. Ostolaza, supra. ²

On May 2, 1987, during the pendency of his direct appeal, the petitioner filed a petition for a writ of habeas corpus in the Superior Court for the judicial district of Tolland. The third amended petition alleged ineffective assistance of counsel during the petitioner's trial. After a full hearing, the habeas court, Kaplan, J., denied the petitioner's application for habeas relief. The petitioner now appeals to this court from the judgment of the habeas court, claiming that the habeas court failed (1) to find that the petitioner had ineffective assistance of counsel as to his decision not to testify at trial, (2) to find that trial counsel had incompetently investigated the case and prepared a defense, (3) to find that the trial court had improperly closed the court during a witness' cross-examination, and (4) to reopen the evidence. We affirm the judgment of the habeas court.

It is axiomatic that "[t]he petitioner, as the plaintiff in a habeas corpus proceeding, bears a heavy burden of proof"; Lubesky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989); see also Hayes v. Maggio, 699 F.2d 198 (5th Cir.1983); and that the claimed error of law must constitute "a fundamental defect which inherently results in a miscarriage of justice...." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). Habeas corpus provides an extraordinary legal remedy for illegal detention; McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d 1072 (1983); and should be available to those " 'whom society has grievously wronged.' " Kuhlman v. Wilson, 477 U.S. 436, 447, 106 S.Ct. 2616, 2623, 91 L.Ed.2d The petitioner first makes a broad attack on the effectiveness of his trial counsel. His first two claims are somewhat interrelated in that he argues that the habeas court failed to find (1) that his trial counsel rendered ineffective assistance with respect to his decision not to testify at trial and (2) that counsel incompetently investigated the case and prepared an inadequate defense. Our Supreme Court has made clear that to succeed in his claim of ineffective assistance of counsel, the petitioner must show that his attorney's performance was not " 'reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law' "; State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975); and that this " 'lack of competency contributed to the conviction.' " State v. Clark, supra; Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). Furthermore, our Supreme Court has adopted the two-pronged test for ineffectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That test requires a conclusive showing that (1) the attorney's performance was so deficient and the errors made by counsel were so egregious that the attorney was not functioning as counsel; id., at 687, 104 S.Ct. at 2064; and (2) there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694, 104 S.Ct. at 2068. Thus, added to the petitioner's heavy burden of proof is the requirement that there be a showing of prejudice that had an effect on the judgment. United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816 (1982).

                364 (1986).   It is against these standards that we measure the petitioner's claims
                

As part of his first argument, the petitioner attacks the habeas court's refusal to find that his trial counsel should have filed a pretrial motion in limine which, he contends, would have aided him in his decision whether to testify at trial. As a corollary to this argument, the petitioner claims that the habeas court wrongfully concluded that his counsel did not abandon his duty to advise him properly on the decision whether to testify. Neither of these claims has merit.

I TRIAL COUNSEL'S PRETRIAL DECISION AND ADVICE

The petitioner's first claim is that his trial counsel's failure to file a motion in limine in order (1) to obtain a ruling concerning the admissibility of his prior convictions and (2) to assess the exercise of his right to testify constituted ineffective assistance of counsel to his prejudice. After a full hearing, the habeas court found no merit to these claims. We agree.

At the habeas trial, the court heard all of the petitioner's evidence relevant to this claim and concluded that "trial counsel's advice concerning the admissibility of the prior convictions and the 'pros and cons' of testifying constituted sound professional judgment." When the conclusions of the habeas court are attacked on appeal, they are reviewed to determine whether they are legally and logically supported by the facts or involve an erroneous application of law materially relevant to the case. Parham v. Warden, 172 Conn. 126, 131, 374 A.2d 137 (1976); Tyson v. Warden, 24 Conn.App. 729, 736, 591 A.2d 817, cert. denied, 220 Conn. 909, 597 A.2d 340 (1991).

Here, the habeas court reviewed the relevant law regarding the impeachment of the defendant as a witness by proof of prior convictions of crimes for which imprisonment may be more than one year. See General Statutes § 52-145(b); State v. Hamele, 188 Conn. 372, 383, 449 A.2d 1020 (1982); State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982). It then applied that law to certain relevant facts before it and concluded that "some evidence of the prior convictions would have been allowed to impeach Ostolaza's testimony." More relevant were the facts that (1) the petitioner Similarly, we find that the court's conclusion as to trial counsel's advice that the defendant should not testify is fully supported by the record. It is the right of every criminal defendant to testify on his own behalf; Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2707, 97 L.Ed.2d 37 (1987); and to make that decision after full consultation with trial counsel. See State v. Davis, 199 Conn. 88, 93, 506 A.2d 86 (1986). Equally axiomatic is the proposition that an accused must take some affirmative action regarding his right to testify. United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985); State v. Paradise, 213 Conn. 388, 405, 567 A.2d 1221 (1990).

                had initially given his trial counsel a false name (Simon Robles) and (2) his record reflected recent 3 convictions for murder and robbery.   The habeas court also reasoned that the petitioner's robbery conviction, in particular, would have been admissible to attack his credibility because such a crime has long been held to bear on the credibility of one who has been convicted of it.  State v. Harrell, 199 Conn. 255, 263, 506 A.2d 1041 (1986).   Furthermore, the habeas court determined that the probative value of such convictions often outweighs any prejudice engendered by their admission.   We find nothing improper in the habeas court's conclusion that the trial counsel's advice concerning the admissibility of the prior conviction constituted adequate professional judgment
                

It is clear from a review of the record that the habeas court correctly determined that this claim was meritless. First, the petitioner never evinced any desire to testify at trial. The habeas court found that trial counsel's advice regarding the pros and cons of the decision to testify was sound: "If Ostolaza did choose to testify, he would have been subject to attack based upon (1) his robbery conviction, (2) the fact that he was working under an assumed name and false social security number while collecting workman's compensation, (3) claims of burglary and tampering with a witness that allegedly occurred during the trial, and (4) the possibility of some reference to his murder conviction." Second, because the nature of the petitioner's attack on the integrity of the trial is collateral in nature, he must establish that he was deprived of due process and that a fundamental defect existed at trial concerning this claim that "inherently result[ed] in a complete miscarriage of justice...." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). This the petitioner cannot do here.

Finally, we find that the petitioner's claim that the habeas court wrongfully concluded that he had waived his right to testify must fail. Consistent with our...