Opinion
No. CV06-4001260
April 29, 2011
Memorandum of Decision
The petitioner, Marcellino LaSalle, Jr., alleges in his petition for a Writ of Habeas Corpus filed on August 15, 2006 and amended for the final time on August 28, 2009 that his conviction for murder in violation of CGS § 53a-54a(a) was obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of his right to testify in his own behalf at his criminal trial by the actions and ineffective assistance of Atty. Elizabeth Inkster who served as his trial defense counsel.
This matter came on for trial before this Court on two separate days, December 14, 2009 and March 28, 2011 at which time testimony was received from two witnesses, the petitioner, and his trial defense counsel. In addition, the Court received several pieces of documentary evidence, including the transcript of the petitioner's underlying criminal trial.
As is explained in greater detail hereafter, this Court finds that the petitioner has failed in submitting persuasive evidence to meet his burden of proof and this petition shall be denied.
The Court has carefully reviewed the testimony and documentary evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of New London under docket number CR02-0267063 entitled State v. LaSalle in which he was charged with committing murder in violation of CGS § 53a-54a(a).
2. Attorney Elizabeth Inkster, a Public Defender, represented the petitioner at trial.
3. As regards the charged crimes, the jury reasonably could have found the following facts. "On June 22, 2002, the defendant was a tenant at the Rand Lodge, a boarding house, in Groton. Sometime during the late afternoon or early evening, the defendant approached James Colegrove, another tenant at the boarding house, outside of Colegrove's room on the first floor. The defendant apologized for causing noise around the boarding house several nights earlier. He also mentioned that Grover Bressert, the manager of the boarding house, planned to evict him. The defendant said that he needed to get a rent receipt from Bressert and that he would be back `to get everyone that was . . . running their mouth' about him. At approximately 6 p.m. the same day, the defendant approached Cathleen Kosloskey, another tenant at the boarding house. The defendant began yelling at Kosloskey that she had `loose lips' and that he was getting evicted because she told Bressert about a fight that the defendant was involved in outside of the boarding house. He told Kosloskey that he was going to go from room to room to find out who told Bressert about him and that `he was going to turn the place out.' After asking whether she wanted to get high with him, the defendant told Kosloskey that she `would cease to exist' and that she would `be done.' He then warned her not to come home that night or she would be dead. Kosloskey left the boarding house immediately after the defendant made these threats. Several hours later, the defendant went to Bressert's room on the first floor of the boarding house. While there, the defendant cut and stabbed Bressert four times with a sharp knife. He cut Bressert on his cheek and on the back of his shoulder, and stabbed him on the right side of his neck and on the right side of his chest. The wound to Bressert's chest cut his second rib, the top part of his lung and his aorta, causing blood to collect in his thoracic cavity around the lungs and heart. He died as a result of this wound not long after it was inflicted. After killing Bressert, the defendant walked toward a motel approximately one tenth of a mile from the boarding house. While in the parking lot of the motel, the defendant encountered John Stone, the owner of the motel. The defendant's shorts were covered in blood, prompting Stone to ask the defendant to leave the property. When the defendant failed to leave the property, Stone held up a bottle of commercial strength cleaning fluid that he had in his hand and told the defendant that he would spray him in the eyes if the defendant came any closer. As a result, the defendant proceeded to walk back toward the boarding house, and Stone called the police. In the hour that followed Bressert's death, the defendant tried to conceal his involvement by washing the knife he used and hiding it in a paper bag in his room. He placed the shorts and socks that he had been wearing, which were covered in Bressert's blood, in a plastic bag. He then hid the plastic bag in the kitchen oven located in a common area of the boarding house. In addition, he discarded the bloodstained sweatshirt that he had been wearing and a towel that was covered in Bressert's blood on properties surrounding the boarding house. At approximately 10 p.m., the defendant was stopped by Michael Masucci, an officer with the Groton city police department, as the defendant walked along a road heading away from the boarding house. By this time, several other officers had discovered Bressert's body. Masucci asked the defendant to stop so that Masucci could question him and check him for weapons. He had a brief conversation with the defendant, but did not notice anything unusual about his speech. As Masucci began to check the defendant for weapons, the defendant swung at David Migliozzi, another officer with the Groton city police department, who had stopped to help Masucci. A scuffle ensued between the defendant and the officers, and the defendant was subsequently arrested."
State v. LaSalle, 95 Conn.App. 263, cert. den. 279 Conn. 908 (2006).
4. Atty. Elizabeth Inkster, a public defender represented the petitioner at his trial. While preparing for the trial and specifically while preparing her client for his potential testimony, Ms. Inkster asked him what he would say about his possession and subsequent hiding of the murder weapon. The petitioner replied that he intended to lie about the knife.
5. At this point, Atty. Inkster told him that if he did so that she would withdraw from her representation of him. Furthermore, she counseled against his testifying because his truthful testimony would hurt him in front of the jury.
6. Ultimately, the petitioner decided against testifying and expressly waived his right to testify in front of the court.
7. The petitioner, after a trial to the jury, was convicted.
8. The petitioner was thereafter on July 24, 2002, sentenced by the court, Schimelman, J., to a total effective sentence of fifty-three years to serve.
9. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand a critical difference between the legal situation of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to the all-important presumption of his or her innocence, the petitioner in a habeas corpus petition is not. That is because the habeas petitioner is not a defendant, he or she is, in truth, a convict. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). The full burden of proof in a habeas petition, therefore, rightfully rests upon the petitioner.
Used in the sense of defining the status of an individual. That is, one who appears before the court, convicted of a crime, as opposed to accused of a crime.
In the instant case, the petitioner alleges that he was deprived of his constitutional right to give testimony in his own behalf. Of course, while the petitioner is indeed correct that he has a right to take the witness stand in his own defense, this does not give him the right to commit perjury while so doing. Moreover, it is clear that when "a lawyer knows that the client intend to testify falsely . . . the lawyer should seek to persuade the client that the evidence must not be offered . . . If the persuasion is ineffective . . . the lawyer must refuse to offer the evidence." Rules of Professional Conduct 3.3(a)(3). Here, Ms. Inkster did have actual knowledge of the petitioner's intention to lie on the stand because he told her directly that this was exactly what he intended to do. At that point, Atty. Inkster appropriately moved to the next step and attempted to persuade him not to lie. The petitioner testified that thereafter, he backed off from his intent to lie. After that, she explained to the petitioner that any testimony he might offer would be subject to vigorous cross-examination from the prosecutor whom she believed to be quite skilled at what he did. She reiterated to the petitioner that if he did lie on the stand she would have no choice but to "leave him out to dry." The petitioner then decided to forgo any testimony. Ms. Inkster was, therefore able and in fact did, continue her representation.
At the appropriate point in the trial, Judge Shimelman thoroughly canvassed the petitioner about his right to remain silent and his right to take the stand in his own behalf. At the criminal trial and again here in the habeas trial, the petitioner admits that he fully understood all of those rights and was not confused by what the criminal trial judge asked him. The petitioner clearly and unequivocally elected to exercise his right to remain silent and voluntarily chose not to testify. Of course here in the habeas case, the petitioner makes the self-serving statement that the only reason he did so was because he was afraid that if he did testify, then Ms. Inkster would attempt to withdraw from representation. The implication from the petitioner is that his right to testify was taken away from him by the threat of Atty. Inkster's withdrawal if he did so testify. Petitioner asserts that this is a violation of such magnitude that he is entitled to have his conviction and sentence set aside and his case returned for trial.
The petitioner expresses great admiration and appreciation for Atty. Inkster and even after his conviction, he was happy to have her represent him on his direct appeal.
This argument fails for a simple reason; it is clear that while Atty. Inkster did advise the petitioner that testifying on his own behalf would be a poor decision, she in no way prohibited him from so doing. What she did do, once she had actual knowledge of his intent to commit perjury during his testimony, was to appropriately invoke RPC 3.3 in order to persuade him that if he decided to testify and lied on the stand that she would have no choice but to withdraw from representation. What may be inferred from this entire scenario is that initially, the petitioner decided he would get on the stand and lie about having the murder weapon and cleaning it after the murder, was confronted by his lawyer with that lie and said he would not do so. Then, after further discussion about the wisdom of his testifying made the decision that he would exercise his right to silence. This is what he told Judge Schimelman he wanted to do and that is precisely what he did do.
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 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, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's performance may have been substandard, will result in denial of the petition.
In the instant case, the petitioner must first prove that it was CT Page 10297 deficient performance by Attorney Inkster to take the steps she did after being confronted with actual proof of the petitioner's intent to lie on the stand. If so, then the petitioner must next prove that there is a reasonable probability that he would have been acquitted of these charges had she not addressed his contemplated perjury and he had testified.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate the underlying case in a different manner, however, that is precisely what took place with this habeas trial. It is indisputable fact that many times if one had foreknowledge of certain events; different courses might well have been taken. Likewise, a habeas court, knowing the outcome of the trial, "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
Moreover, "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant 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 . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984).
Justifiably, then, the burden of persuasion in a habeas case rests with the petitioner because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, 229 Conn. 397 at 419 (1994). There is, therefore, a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
It is clear to this court that Attorney Inkster's conduct and approach when confronted with the petitioner's planned path towards perjury, was fully in accord with the Rules of Professional Conduct. Her performance in this regard, rather than being deficient, was commendable in that she was able to persuade the petitioner that a lie would be devastating to his cause and convincing him to eschew his original plan. As a result she was able to continue her representation and had the petitioner not brought this habeas petition, no one would have known of his mendacious intent.
Furthermore, it is not even necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) (`[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It is abundantly clear that there was no prejudice demonstrated at the habeas trial. The petitioner was permitted to testify in front of this court as if he were testifying to his criminal jury. The state attorney was permitted to cross-examine that testimony as if this were the criminal trial. The petitioner did not present any evidence at the habeas trial that would lead this court to conclude that there was any likelihood that the outcome of the trial would have been any different. "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. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). 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." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). The petitioner's evidence falls far short of that goal. To be sure, the petitioner's simulated trial testimony attempts to put a different spin on what took place on the night of the murder, nevertheless, through his own words, the petitioner corroborates almost all of the other witness testimony and in no way could be considered exculpatory. Indeed, if this is what the petitioner was going to tell the jury, he should be grateful to his attorney for advising him to exercise his right to remain silent for it was of no use to him. The petitioner completely fails to demonstrate any prejudice.
This admonition from the United States Supreme Court bears reiteration. "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 strategy' . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable and professional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90. This Court will find that the strategic and tactical decisions of counsel, as well as the manner in which he carried them out to be within the acceptable range of performance. There is, therefore, no finding of deficient performance nor is there any prejudice.
Of course, even though a habeas court is to give great deference to strategic and tactical decisions of trial defense counsel, such decisions must meet an objective standard of reasonableness, "it does not follow necessarily that, in every instance, trial counsel's strategy concerning these decisions is sound." See Bryant v. Commissioner of Correction, 290 Conn. 502 at 521 (2009).
Accordingly, the Petition for a Writ of Habeas Corpus is denied.