Jones v. Commissioner of Corrections

Marquis Jones (Inmate #311844) v. Commissioner of Corrections

No. TSRCV134005405

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

November 26, 2019

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Newson, John M., J.

MEMORANDUM OF DECISION

Hon John M. Newson, J.

I. Procedural History

According to the allegations, the petitioner was the defendant in a matter pending in the Fairfield Judicial District under Docket No. CR08-0223569-T, where he was charged with Murder, in violation of General Statutes § 53a-54a, and Felony Murder, in violation of General Statutes § 53a-54c, relating to the death of one Horace Cheatam on December 27, 2002. At all times relevant to the claims in this petition, he was represented before the criminal court by Attorney Jeffrey Beck. From the summary provided by the Appellate Court, the jury could have reasonably found the following facts beyond a reasonable doubt:

On the evening of December 26, 2002, the eighteen year old victim, accompanied by his cousin, Sam Moore, attended a party at a club in Bridgeport. The defendant was at the club at the same time as the victim and Moore. After leaving the club, the victim and Moore went to a nearby restaurant. The defendant, who was armed with a gun, arrived at the same restaurant at approximately 1 a.m. While there, the defendant learned that the victim and Moore were interested in purchasing marijuana. The defendant told an acquaintance, Gary Browning, that the victim and Moore had money and that he wanted to rob them. Browning arranged to sell marijuana to the victim and led him to a nearby backyard to complete the sale. Thereafter, the defendant approached the victim from behind and stated: "You know what time it is, run that shit." As Browning walked away from the victim, the defendant shot the victim in the back of the head and took money and drugs from him. The gunshot caused the victim’s death. The victim’s body was found on the snow coated ground the next morning.

State v. Jones, 135 Conn.App. 788, 791, 44 A.3d 848, cert. denied, 305 Conn. 925, 47 A.3d 885 (2012). The matter was tried to a jury, who found the petitioner guilty of the Felony Murder charge on March 29, 2010. On May 28, 2010, the trial court imposed a sentence of forty (40) years to serve. The petitioner appealed his conviction, which was affirmed. Id.

The petitioner commenced the present action on May 2, 2013. The Revised Third Amended Petition for Writ of Habeas Corpus dated May 10, 2019, alleges ineffective assistance against the petitioner’s former trial counsel in count one, and violation of due process based on the State’s alleged failure to disclose certain exculpatory evidence in counts two and three. The matter was tried before the Court on various dates from August 27, 2018, through June 2, 2019, after which the parties were given the opportunity to file post-trial briefs. Further procedural and factual background will be discussed as necessary throughout the remainder of this decision.

II. Law and Discussion

"The 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, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must 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. Second, the defendant must show 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. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "Judicial 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." Id., 689. "Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. [The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 690.

Under the second prong of the test, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 691. "[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id., 693. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 694. "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like." Id., 695. The court "must consider the totality of the evidence before the judge or jury." Id. "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

Ineffective Assistance of Trial Counsel

The petitioner first claims that Attorney Beck failed to "conduct a timely and thorough investigation." The petitioner has failed to support his claim with any credible, previously undiscovered evidence or witnesses that could have been uncovered if trial counsel had conducted a more thorough investigation. "[T]he failure of defense counsel to call a potential defense witness [or to find certain evidence] does not constitute ineffective assistance unless there is some showing that the testimony [or evidence] would have been helpful in establishing the asserted defense." (Citation omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 681, 51 A.3d 948 (2012). Therefore, the first claim fails. Nieves v. Commissioner of Correction, 51 Conn.App. 615, 623, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999) (for the notion that failure to present evidence or testimony is fatal to a petitioner’s claim).

The petitioner’s next claim is that Attorney Beck denied him the right to testify at his own criminal trial, despite the fact that he wanted to testify. Attorney Beck had a vague memory of discussing the possibility of testifying with the petitioner, and that he likely advised him not to testify, but no specific memory of any intense argument with the petitioner. The petitioner claims that he got extremely upset, because he was insisting on testifying, which resulted in the Court granting a brief recess for the parties to discuss the matter. During that recess, he insists he reiterated his desire to testify, but that counsel just went back out on the record and rested the defense case without calling him. In order to accept the petitioner’s claim, this Court would need to believe that he insisted on testifying, that it caused the trial court to call a recess specifically so he and Attorney Beck could discuss the issue, but that, despite the petitioner still insisting that he be allowed to exercise his constitutional right to testify, counsel simply rested, and that the trial court allowed this to occur.^[1] This, the Court simply did not find this credible or probable. Therefore, this claim fails.

The petitioner next claims that Attorney Beck failed to present the testimony of Samuel Moore as contradictory to that of Gary Browning.^[2] Mr. Browning was not called to testify at the habeas trial. "The failure of the petitioner to offer evidence as to what [a witness] would have testified is fatal to his claim." Nieves v. Commissioner of Correction, 51 Conn.App. 615, 623, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). Therefore, this claim also fails.

Next the petitioner claims that Attorney Beck failed to adequately present a third-party culpability claim that a Rafial Ferrer was the perpetrator. Some additional background information is necessary to understand this claim. The defendant commenced jury selection for his trial on or about February 16, 2010. Approximately three months earlier, November 21, 2009, an offender hit notification was generated by the State Forensic...