Opinion
CV104003502S
12-06-2018
Donald COLE v. WARDEN
UNPUBLISHED OPINION
OPINION
Sferrazza, J.
The petitioner, Donald Cole, seeks habeas corpus relief from sixty years imprisonment, imposed after a jury trial, for the murder of his girlfriend, Susan Rice. Our Supreme Court affirmed the judgment of conviction on direct appeal, State v. Cole, 254 Conn. 88 (2000); affirming the Appellate Court’s decision in State v. Cole, 50 Conn.App. 312 (1998). Attorney Alan McWhirter represented the petitioner for his criminal case.
The petitioner brought a previous habeas action attacking the competency of Attorney McWhirter’s legal assistance, and the habeas court denied relief, Cole v. Warden, Superior Court, Tolland J.D., d.n. CV 01-0805384 (March 25, 2005), Fuger, J. The Appellate Court affirmed that decision, also, per curiam, Cole v. Commissioner, 96 Conn.App. 852 (2006); cert. denied, 280 Conn. 916 (2006). Attorney John Williams represented the petitioner in that habeas case.
The petitioner asserts, in the first count, that Attorney McWhirter represented him deficiently at the criminal trial level and, in the second court, that Attorney Williams provided ineffective assistance in the first habeas matter.
The first count must be dismissed, pursuant to Practice Book § 23-29(3) because it presents the same grounds for relief denied in an earlier habeas case, namely the ineffective assistance of trial counsel and which are not based on new facts or evidence "not reasonably available at the time of the prior petition." The addition of new specifications of ineffective assistance against Attorney McWhirter are insufficient to state a new legal ground different from that raised by the previous habeas petition. McClendon v. Commissioner, 91 Conn.App. 228, 230 (2006), cert. denied, 277 Conn. 917 (2006).
Of course, the failure by habeas counsel, Attorney Williams, to assert those specifications of ineffective assistance against Attorney McWhirter can form the basis for a claim of ineffective assistance by Attorney Williams, and the petitioner alleges just such a claim in the second count of the amended petition in this case.
Ineffective Assistance of Habeas Counsel
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence that his attorney’s performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that habeas counsel’s representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra.
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel’s conduct from that attorney’s perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof or prejudice, the habeas court may address that issue directly without reaching the question of counsel’s competence. Pelletier v. Warden, 32 Conn.App. 38, 46 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome. Daeira v. Commissioner, 107 Conn.App. 539, 542-43 (2008), cert. denied, 289 Conn. 911 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id. Thus, the failure of the petitioner to establish, by a preponderance of the evidence, either the allegations against trial counsel or habeas counsel or the requisite prejudice as to both the first habeas case and the criminal trial will defeat a claim for habeas corpus relief in the present action.
Also, in Lozada v. Warden, 223 Conn. 834 (1992), our Supreme Court recognized a purely statutory right to raise, in a subsequent habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel. Id., 835. However, the petitioner’s burden becomes a multi-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged. Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his previous habeas counsel was ineffective, and (2) that his trial counsel was ineffective. Id. Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the first habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different. Id., at 842-43. The Supreme Court described this double-layered obligation as "a herculean task." Id., 843.
To recapitulate, in order to prevail on this count, the petitioner must prove, by a preponderance of the evidence, that Attorney Williams represented him ineffectively in attempting to prove that Attorney McWhirter represented him ineffectively in his criminal case.
Specifically, the petitioner avers that Attorney Williams ought to have pleaded and proven that Attorney McWhirter was ineffective by failing to present an extreme emotional disturbance (EED) defense to murder, as set forth in General Statutes § 53a-54a; by failing to request a jury instruction on that defense; and by failing to consult with, retain, and present the testimony of a forensics expert. The Appellate Court aptly summarized the evidence supporting the jury’s verdict:
"On December 9, 1993, at approximately 8 p.m., the defendant telephoned Susan Hellwinkle at her home in Woodbury. The defendant told Hellwinkle that he had shot his girlfriend twice and that she was dead. After hanging up with the defendant, Hellwinkle immediately telephoned the police to report the defendant’s statements. Shortly thereafter, state police officers from Troop L in Litchfield were dispatched to the defendant’s residence in Woodbury. Upon arriving at the defendant’s residence, the officers took up positions surrounding the house. William Longo, a sergeant with the Connecticut state police, telephoned the defendant from outside of the house and instructed the defendant to come out of the front door with his hands empty and in plain view. The defendant opened the front door and stepped onto the front porch. After the defendant stepped onto the front porch, Pete Warren, a lieutenant with the Connecticut state police, gave the defendant further instructions as to how to surrender. The defendant followed Warren’s instructions and was handcuffed by Officer David Bland.
After turning over the defendant to other officers, Longo and Bland entered the house through the front door and proceeded to a master bedroom at the end of a hallway. Upon entering the bedroom, the officers discovered the victim on the floor at the foot of the bed. The victim was fully clothed, lying on her back. The top half of the victim’s torso was wrapped in a blanket that was folded across her face. There were numerous tears in the upper part of the victim’s blouse and a wound to the victim’s face. The plastic casing from a discharged shotgun shell was entwined in the victim’s hair. There was a small amount of blood splattered on the wall across from the victim. There were also bloody drag marks from the wall to the foot of the bed. In one of the bedroom walls, behind an undamaged poster, were three bullet holes surrounded by splattered blood and hair. A discharged shotgun shell was found under bloodstained clothes in a laundry basket. Another discharged shotgun shell was found at the foot of the bed. There was a pool of blood on the bedroom floor beneath a red flannel shirt. A twelve-gauge shotgun was found in the closet of a second bedroom. Forensic testing revealed that the discharged shotgun shells found in the master bedroom had been ejected from this shotgun.
Ira Kanfer, a forensic pathologist with the state medical examiner’s office, conducted an autopsy of the victim. Kanfer’s examination revealed a shotgun would to the victim’s chest with the bullet traveling upward and lodging in the victim’s brain. Kanfer’s examination also revealed a second gunshot would to the victim’s neck with the bullet traveling downward and exiting through her back. Kanfer opined that the gunshot to the neck occurred first and that the second shot occurred while the victim was on the floor. Kanfer attributed the victim’s death to multiple gunshot wounds.
While the police were searching the defendant’s residence, the defendant was brought inside and calmly stated: "It was self-protection. She was yelling at me." The defendant also stated that the victim had swung the shotgun at him and that he had to protect himself. In addition, the defendant stated: "I’m not going to let anyone come in and push me around. I have my gun." Later, while the police were transporting the defendant to the state police barracks in Litchfield, he stated that the victim was fighting him like a man, had threatened to kick him in the groin and was going to get the shotgun and kill him. After arriving at the barracks, the defendant stated that the victim was going to kill him and was trying to take over his life. The defendant also stated that the victim had told him that he was unfit to raise his children and that he had been aggravated into killing her.
The defendant testified as follows. Approximately one month prior to the incident, the victim who had been living with the defendant, moved out of the defendant’s home and was living in New Milford. On December 9, 1993, at approximately 4 p.m., the victim telephoned the defendant and asked if she could come over for dinner with him and his three children. The victim arrived after the defendant and his children had finished eating and ate alone in the kitchen while the defendant watched his children playing in the basement. After approximately fifteen minutes, the victim angrily called downstairs to the defendant: "Get your ass up here or I’m going to kill you." The defendant went upstairs to the master bedroom and the victim asked him why she had to work for a living and pay her own rent. The defendant responded that it was not his responsibility to take care of her. The defendant told the victim that it was best for her to move out, that they were stuck in a rut and that she should go home. The victim became upset with the defendant and began slapping and kicking him. The defendant told her to stop and to get out of the house. The victim said that she knew the defendant had a loaded shotgun in the bedroom closet and that she was going to shoot him with it. The defendant removed the shotgun from the closet and told the victim that she was not going to get any guns and that she should get out of the house. The victim again slapped and kicked the defendant. The defendant backed up approximately five feet and pointed the shotgun at the victim. The defendant turned off the safety mechanism and fired two shots at the victim. The first shot was fired when the victim was standing and the second as the victim fell. The defendant stated that he did not intend to kill the victim and characterized his conduct as a subconscious reaction. Although the defendant acknowledged that the victim never touched the shotgun, he said that he was trying to protect himself because he was convinced that the victim would shoot him if she could get her hands on the gun. The defendant also said, however, that he had not shot the victim in self-defense and that he was incorrect in previously having thought that he had. In addition, the defendant stated that he did not know what made him shoot the victim," State v. Cole, supra, 314-17.
It was undisputed that, at the time of the shooting, the petitioner suffered from an untreated mental illness that caused him to experience paranoid delusions. As a result, he suspected that his acquaintances and coworkers were attempting to undermine his endeavors in life and that health care providers were bent on taking over that life. He also believed that a secret organization, known to him as "Semper Fi," was stalking him and intended to do him great harm.
Auditory hallucinations warned him of these perceived dangers, and he came to believe that the person he shot and killed was not his girlfriend, Susan Rice, but a look-a-like double that Semper Fi employed to spy on his activities. He became hypervigilant and willing to preempt any supposed threat against him. Eventually, he became deluded into concluding that his girlfriend’s imposter knew about a shotgun which he kept in a closet, that she posed an imminent threat to his safety, and that it was necessary to kill the ersatz spy before she killed him.
1
At the criminal trial, Attorney McWhirter presented an insanity defense. The petitioner contends that his defense counsel should have also pursued an EED defense and that his habeas counsel represented him improvidently by failing to raise that claim in the earlier habeas case. The court disagrees with this contention.
No legal expert testified that Attorney McWhirter’s tactical decision to raise only an insanity defense fell below reasonable standards of performance by criminal defense attorneys. Nor did any legal expert criticize Attorney Williams for omitting such an allegation in the previous habeas case.
Attorney McWhirter testified in the present matter that he was certain he considered both an insanity and EED defense and decided to present only the insanity defense. The petitioner testified and corroborated that Attorney McWhirter did, indeed, discuss both potential defenses with him and recommended that the petitioner allow him to pursue the insanity defense.
Attorney McWhirter explained that he usually tries to avoid proffering potentially conflicting theories of defense before a jury. Advancing divergent defenses can easily weaken both. He opined that the insanity defense fit the evidence better because the petitioner’s mental illness was uncontroverted. The primary issue for the jury to resolve was whether that disease and/or defect produced the victim’s death as required under the legal principles surrounding that defense.
As Attorney McWhirter cogently noted, the insanity defense applies regardless of whether the actor formed an intent to kill a victim or was incapable of harboring such intent. On the other hand, the EED defense, under § 53a-54a(a), is inapplicable unless the perpetrator actually possesses such intent. Attorney McWhirter, at the time of the petitioner’s criminal case, was a very experienced public defender who had represented many clients charged with very serious crimes, including capital felony murder.
Attorney Williams also had a great deal of experience representing those charged with serious crimes. Both defense counsel and habeas counsel regarded the decision to pursue only the insanity defense as the better course than presenting the EED defense as an alternative defense to insanity.
Attorney Williams pointed out that a jury is more likely to return an outcome of lifetime institutionalization compared to a lesser included offense verdict. The trial court, in response to a request, educated the jury as to the consequences for the petitioner should the jury return a verdict of not criminally responsible by reason of mental disease/defect, State v. Cole, 50 Conn.App. 312, 326.
"To sustain his burden of establishing extreme emotional disturbance by a preponderance of the evidence, the defendant must persuade the trier of fact that: (1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code," State v. Campbell, 328 Conn. 444, 510 (2018) (emphasis added). Given the petitioner’s extensive history of mental illness and the trial testimony of two mental health experts that the petitioner labored under untreated, paranoid schizophrenia at the time he killed Susan Rice, it was entirely reasonable for both Attorney McWhirter and Attorney Williams to regard the insanity and EED defenses as incompatible although permissible legal alternatives.
Unsuccessful tactical decisions which are the result of the reasonable exercise of professional judgment will constitute effective assistance despite the unfavorable outcome, Stephen S. v. Commissioner, 94 Conn.App. 288, 296 (2006). The court determines that the petitioner has failed to prove that Attorney McWhirter’s conduct of his defense fell below contemporary professional standard in this regard. Therefore, the petitioner has failed to meet his burden under the performance prong of the Strickland-Lozada test as to this allegation.
2
The petitioner also submits that Attorney Williams was professionally required to assert that Attorney McWhirter rendered ineffective assistance by failing to present expert forensic evidence as to the locations of the shooter and victim. Both Attorney McWhirter and Attorney Williams testified at the present habeas trial that the specific circumstances of the petitioner’s case made such evidence inconsequential as a practical matter. The court concurs in their assessment and notes, again, that no legal expert testified to the contrary.
The court also observes that the forensics expert who testified in the present case, Peter Valentin, only took issue with respect to two aspects of the forensic conclusions by the prosecution’s expert presented at the criminal trial. First, Valentin criticized the state’s expert for conducting only one test firing of the shotgun at various distances rather than firing at test targets multiple times for each distance to obtain more accurate findings. However, Valentin never engaged in any test firing of his own. He candidly acknowledged, on cross-examination, that he could not say whether different results would have been produced by employing his preferred method of testing.
Valentin also took issue with the state’s expert as to that expert’s opinion that the shooter fired at the victim while ten to fifteen feet away from her. Valentin correctly pointed out that the side-to-side width of the bedroom in which the shooting occurred was eleven and one-half feet. The shotgun muzzle must have been at least three feet closer to the victim than the wall-to-wall distance, implying that the maximum shot distance would have been less than nine feet.
However, this modified distance appears of little evidentiary value. The court concludes that the jury’s verdict would have been unaffected by such knowledge. A different outcome based on such a minor discrepancy is highly improbable.
The court finds that the petitioner has failed to satisfy his double-barreled burden of proving ineffective assistance of both defense and habeas counsel. For these reasons, the court denies the petition for habeas corpus relief.