Adorno v. Commissioner of Correction

66 Conn. App. 179

783 A.2d 1202

FERMIN ADORNO v. COMMISSIONER OF CORRECTION

(AC 20297)

Appellate Court of Connecticut.

Argued May 8, 2001.

Officially released October 9, 2001.

Lavery, C. J., and Schaller and Hennessy, JS. Mary Anne Royle, special public defender, for the appellant (petitioner).

Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were John T. Redway, state's attorney, and Timothy J. Liston, senior assistant state's attorney, for the appellee (respondent).

Opinion

SCHALLER, J.

The petitioner, Fermin Adorno, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus in which he alleged ineffective assistance of trial counsel. On appeal, the petitioner claims that the court improperly dismissed the petition because (1) counsel was ineffective at the suppression hearing (a) for failing to investigate his educational background, (b) for failing to introduce expert testimony regarding his ability to waive his Miranda¹ rights and (c) for compelling him to testify; (2) counsel was ineffective at the trial (a) for failing to cross-examine effectively a state's key witness and (b) for failing to develop a credible defense; (3) counsel was ineffective at the sentencing hearing for failing to produce mitigating evidence; and (4) counsel was ineffective due to a conflict of interest. We affirm the judgment of the habeas court.

The facts giving rise to this case are set forth in State v. Adorno, 45 Conn. App. 187, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997). "On August 13, 1992, at approximately 3 a.m., the [petitioner] and several others drove to the apartment of Delmar Johnson, kicked in his door and fired shots into his apartment, killing him. On August 21, 1992, the police arrested the [petitioner] and took him into police custody. While in custody, the [petitioner] gave an oral statement indicating that on August 13, 1992, he had gone to Portland with a group of five men in two cars, had kicked in Johnson's door and had started shooting." Id., 188-89. The petitioner was thereafter tried and convicted. On direct appeal, we upheld the petitioner's conviction of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1) and felony murder in violation of General Statutes § 53a-54c.

Subsequently, the petitioner sought a writ of habeas corpus, and the habeas court held a hearing on the matter. The petitioner alleged that his trial counsel was ineffective in several instances during the suppression hearing, the trial and the sentencing hearing. In its memorandum of decision, which was filed on November 12, 1999, the court dismissed his petition. The court thereafter granted the petitioner's petition for certification to appeal. This appeal followed.

Before addressing each of the petitioner's claims of ineffective assistance of counsel, we note that our standard of review of a habeas court's decision regarding such claims is well settled. "In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn. App. 313, 316, 759 A.2d 118 (2000).

"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel .... In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable....

"The first component of the Strickland test, 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 strategy.... [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.... Minnifield v. Commissioner of Correction, [62 Conn. App. 68, 71-72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001)].

"Even if a petitioner shows that counsel's performance was deficient, the second prong, or prejudice prong, requires that the petitioner show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.... Therefore, [a] habeas court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if the claim may be disposed of on the ground of an insufficient showing of prejudice." (Citations omitted; internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 299-301, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001).

Mindful of those standards, we now turn to examine each of the petitioner's claims. Additional facts will be set forth as necessary to resolve the claims.

I

The petitioner first claims that trial counsel was ineffective at the suppression hearing because he made a number of prejudicial errors. Specifically, the petitioner claims that counsel was ineffective (1) for failing to investigate his educational background, (2) for failing to introduce expert testimony regarding his ability to waive his Miranda rights and (3) for compelling him to testify.

A

We begin with the petitioner's claim that counsel was ineffective because he failed to investigate the petitioner's educational and mental background, thereby prejudicing him at the suppression hearing. We disagree.

The following additional facts are relevant to the petitioner's claim. After the police arrested the petitioner, they advised him of his Miranda rights. Nevertheless, he gave a statement to the police indicating that "[o]n August 13, 1992, he had gone to Portland with a group of five men in two cars, had kicked in [the victim's] door and had started shooting." State v. Adorno, supra, 45 Conn. App. 189. The petitioner's trial counsel, who assumed responsibility for the case prior to the trial,² knew that the statement to police could be very damaging. Counsel spoke with the petitioner about the statement and the surrounding circumstances under which it had been taken. The petitioner informed counsel that he had not understood that he was waiving his Miranda rights when he gave the police his statement. Counsel therefore filed a motion to suppress the statement, claiming that he had not made it voluntarily. When the petitioner testified at the suppression hearing, he was asked to read a police report. The petitioner, however, had difficulty reading the report. As a result, the court granted a recess to allow the petitioner to read the report. His counsel, at the time, was unaware that the petitioner had only a seventh grade education. During the habeas hearing, counsel testified that he was uncertain as to whether he had the petitioner's school records prior to the suppression hearing. He noted that such records would not have altered his estimation of the petitioner's reading ability. On the basis of his own judgment after meeting with the petitioner several times, counsel believed that the petitioner, as a witness, would be able to read a simple document and answer uncomplicated questions. The court concluded that even if counsel had investigated the petitioner's educational and mental background, it would not have altered the result of the suppression hearing and, consequently, the petitioner had failed to show prejudice as required under the second prong of Strickland.

After reviewing the record, we agree with the court's determination that the petitioner failed to show prejudice. The petitioner did not demonstrate that there was a reasonable probability that, but for counsel's failure to discover the petitioner's educational background, the result of the suppression hearing would have been different. With respect to whether the petitioner's statements were made voluntarily, our Supreme Court has repeatedly stated that "a low level of education, although a factor to be considered, is not in and of itself, determinative.... see State v. Correa, 241 Conn. 322, 335, 340, 696 A.2d 944 (1997) (admission of statements by suspect with only five years of education); State v. Madera, [210 Conn. 22, 43-44, 554 A.2d 263 (1989)] (admission of statements by...