Smalls v. Warden

• Decision Date: 24 July 2017
• Docket Number: CV124004627S
• Court: Connecticut Superior Court
• Parties: Bernard Smalls #257120 v. Warden

Bernard Smalls #257120 v. Warden

No. CV124004627S

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

July 24, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Vernon D. Oliver, J.

The petitioner, Bernard Smalls, initiated this petition for a writ of habeas corpus, claiming that his habeas counsel, and through this underlying trial counsel, provided him ineffective legal representation. He seeks an order of this court vacating his convictions and returning the matter to the criminal court with instructions to allow the petitioner to accept the original twenty-five-year plea offer, or to grant the petitioner a new trial. The respondent denies the petitioner's claims. The court finds the issues for the respondent and denies the petition.

I PROCEDURAL HISTORY

The petitioner stands convicted, after a jury trial, of one count of murder by use of a firearm in violation of General Statutes § 53a-54a(a), one count of risk of injury to a minor in violation of General Statutes § 53-21(a) and criminal possession of a firearm in violation of General Statutes § 53a-217(a). The petitioner elected to have a court trial as to a sentence enhancement via the commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k, and the court found that the state presented sufficient evidence to establish the violation. The petitioner was represented at all relevant times by Attorney Michael Moscowitz. The petitioner was also represented by Attorney Patricia King for several pretrial appearances.

On December 7, 2001, the trial court sentenced the petitioner to a total effective sentence of fifty years of imprisonment. The petitioner's convictions were affirmed on direct appeal. State v. Smalls, 78 Conn.App. 535, 827 A.2d 784, cert. denied, 266 Conn. 931, 837 A.2d 806 (2003). In his direct appeal, the petitioner was represented by Attorney Louis Avitabile. The following findings of the Appellate Court are relevant to a disposition of the instant petition:

[T]he victim, on May 15, 2000, was playing basketball with a group of children while his twelve year old daughter was playing softball on a nearby field. She saw the defendant get out of a car and begin arguing with her father about the basketball game. She ran to her father and stood there while the argument took place. The argument ended when the defendant stated that he was going to a package store to cool down and then drove away.

The defendant came back to the basketball court with a shotgun, with which he killed the victim. The victim's daughter was again playing softball on the nearby field when she noticed that the children on the basketball court were scattering. She saw the defendant get out of his car with the shotgun, and watched as he pulled the trigger and shot her father. She then ran toward them. After her father fell to the ground, the defendant held the gun to her father's head. She yelled, " That's my father, " and the defendant then got in his car and sped away. The child and another witness identified the defendant as the shooter from an array of photographs shown to them by the police.

The police obtained a warrant for the defendant's arrest on June 21, 2000, and he gave the police a sworn tape-recorded statement on July 5, 2000, when he turned himself in to the police. The statement was introduced into evidence by the state, with two questions and answers having been redacted, at the request of the state, over the objection of the defendant. The defendant's statement contained some exculpatory as well as inculpatory statements as to the murder charge. The exculpatory statements were that the defendant believed that he was acting in self-defense and that he did not want the victim to die.

The defendant did not introduce any evidence, either by way of testimony or exhibits, and did not testify at trial. In closing argument, defense counsel asked the jury to consider closely the defendant's statement. The defense counsel referred to it in connection with a right front parking light of the defendant's car, which the defendant, in his statement, said was broken by the victim when the victim threw a beer can at the car. The only other reference made in the closing argument by the defense to the defendant's statement was that the defendant had stated in it that he needed time after the warrant for his arrest to get himself together so he could turn himself in and tell his side of the story. " The statement is in evidence and you could look at it, " counsel for the defendant told the jury.

(Footnotes omitted.) State v. Smalls, supra, 78 Conn.App. 537-38.

The petitioner brought his first habeas petition, last amended on July 30, 2007, alleging claims of ineffective assistance of trial counsel as to Attorney Moscowitz, ineffective assistance of appellate counsel as to Attorney Avitabile and prosecutorial misconduct. The petitioner was represented by Attorney Cheryl Juniewic. The habeas court, Fuger, J. dismissed the petition on December 10, 2009. The petitioner appealed the habeas court's decision, and the petitioner's appeal was dismissed. Smalls v Commissioner of Correction, 146 Conn.App. 909, 78 A.3d 307 (2013), cert. denied, 311 Conn. 931, 87 A.3d 579 (2014).

The petitioner initiated the present habeas petition on March 12 2012. In his three-count amended petition, filed on January 20, 2017, the petitioner claims that his first habeas counsel, Attorney Juniewic, was ineffective in failing to: (1) properly raise the claim that trial counsel was ineffective when advising the petitioner not to testify in his own defense; (2) properly raise the claim that trial counsel was ineffective for failing to properly explain the plea offer to the petitioner prior to the commencement of trial and (3) properly raise the claim that trial counsel was ineffective in failing to investigate and prepare an adequate defense. The respondent filed a return on March 3, 2017, leaving the petitioner to his proof.

A trial was held on March 27, 2017, and March 28, 2017, at which the petitioner called Attorney Moscowitz, Attorney Juniewic, Mark Schachter, private investigator, Patrice Nixon, Angie Jackson, Attorney Sebastian DeSantis, attorney expert witness, Assistant State's Attorney David Strollo and the petitioner as witnesses. Both parties presented exhibits to the court.

II DISCUSSION

" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, at 466 U.S. at 694.

" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, at 466 U.S. at 687. " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, at 466 U.S. at 689.

Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, at 466 U.S. at 686.

" The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a 'habeas on a habeas, ' was approved by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to...