Jones v. Warden

Maleek Jones (Inmate 179912) v. Warden

No. CV124004861S

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

February 11, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Susan Quinn Cobb, J.

The petitioner, Maleek Jones, brings this petition for a writ of habeas corpus claiming that his first habeas counsel was ineffective. He seeks an order of this court vacating his convictions and restoring his criminal case to the trial docket for further proceedings. The court finds the issues for the respondent, and, therefore, denies the petition.

The petitioner was convicted after a jury trial of murder in violation of General Statutes § § 53a-54a and 53a-8, conspiracy to commit murder in violation of General Statutes § § 53a-48(a) and 53a-54a, and carrying a pistol without a permit in violation of General Statutes § 29-35(a). The trial court sentenced the petitioner to a total effective sentence of sixty-five years incarceration.

The petitioner appealed his convictions to the Appellate Court which affirmed them. State v. Jones, 46 Conn.App 640, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997).

The Appellate Court found that the jury could reasonably have found the following facts:

Maleek Jones was a member of a group of about eight persons who sold narcotics in the Edgewood Avenue area of New Haven. The group was known by the name Red Line because of the color of the bags they used to sell narcotics. The group used a second floor apartment on the corner of Chapel and Beers Streets as its base of operation. The apartment was located a short distance from Saint Raphael's Hospital.

The defendant was involved in a relationship with Teeba Henderson, who had previously had a long term relationship with Steven Gary. Gary did not take the break up of their relationship well and continued to pursue Henderson. The defendant and Gary had argued and, subsequently, in April 1992, had a fight in which Gary was knocked unconscious.

There was animosity between the Red Line group and individuals friendly with Gary who lived in the area of Carmel Street. The animosity between the two groups had escalated to the point that members of the Red Line group had gone to Gary's neighborhood, and the groups exchanged gunfire.

On October 14, 1992, at approximately 1:30 a.m., Eddie Harp a friend of Gary, was driving his station wagon in the vicinity of Saint Raphael's Hospital. Harp pulled the vehicle into the emergency room parking lot and parked in an area reserved for security vehicles. Louis Yanac, a security officer, approached Harp, who informed Yanac that he was visiting Sheila McCray, a hospital employee, during her lunch break. Yanac observed McCray and Harp conversing in the waiting area of the emergency room. Yanac left the area to make rounds and, when he returned to the emergency room area he noted that Harp, McCray and Harp's station wagon were gone. Harp returned to the hospital and dropped off McCray at the main entrance. At about 2:10 a.m., as Harp left the hospital driveway, shots were fired, and the vehicle rolled into a parking lot across from the hospital's main entrance.

When the police arrived at the scene, they found Harp's car running with Harp unconscious in the driver's seat. The victim was transported by ambulance to the hospital, where it was found that he had suffered three gunshot wounds, one of which had penetrated his brain, resulting in his death about six hours after the shooting.

Several hours before the murder, the defendant was in the apartment at the corner of Chapel and Beers Streets with Tyrone Spears, Gene John, who was known as Pepper, and two individuals from New York. The defendant and Pepper left the apartment and returned about two hours later. The defendant was excited and said that " the kid from Carmel Street is outside." He and Pepper immediately ran outside armed with .357 revolvers. Spears obtained a .357 revolver that was concealed in the ceiling of a closet in the common hallway of the building and joined the defendant and Pepper outside.

As Spears exited the apartment building, Pepper and the defendant were near the driveway leading to the main entrance of the hospital. When the victim's vehicle pulled out of the driveway, the defendant, Pepper and Spears began shooting at the vehicle. The defendant and Pepper were about nine feet from the driver's side of the vehicle when they opened fire. They continued to fire at the vehicle as the car rolled slowly into the parking lot opposite the main entrance. After the shooting, the three individuals ran back to the Red Line apartment.

State v. Jones, supra, 46 Conn.App. 642-44.

The petitioner brought this second habeas action on August 2, 2012. In his amended petition, dated November 7, 2014, he claims that his first habeas counsel, Attorney Bruce McIntyre, was ineffective in failing to: (1) conduct an adequate investigation; (2) prepare for trial; (3) produce evidence; and (4) plead and present evidence that trial counsel failed to present ballistic and/or crime scene evidence.

The habeas trial was held on March 30 and 31, as well as April 2, 27 and 28, 2015. The petitioner presented testimony from himself and the following additional witnesses: his former trial counsel, Attorney Leo Ahern; his former habeas counsel, Attorney Bruce McIntyre; former Detective Thomas Trocchio; a witness to the shooting, Sheila McCray; codefendant, Tyrone Spears; Ernestine Bember-Darden, who used to sell drugs together with Mr. Spears and the petitioner; a friend of the petitioner's, Terralyn Stephens, expert witness, Attorney Deborah Stevenson; Public Defender Attorney Thomas Ullman; former JBI Investigative Services employee, Rita Bacote; the petitioner's mother, Denise Jones; the petitioner's uncle, Jerry Jackson; an acquaintance of the petitioner's, Teba Henderson; and expert witness, Dr. Albert Harper.^[1] Both parties submitted exhibits and post-trial briefs.^[2]

The court finds the following additional facts.

The petitioner was arrested and charged with the offenses he was ultimately convicted of after a jury trial. Attorney Ahern was assigned to represent the petitioner after his arrest and represented him throughout the pretrial and trial proceedings in this case. Attorney Ahern is an experienced criminal defense attorney who has practiced law for more than thirty-one years, with about half of his practice consisting of criminal defense work. During that time, Attorney Ahern has tried between fifteen and twenty murder trials, including the petitioner's jury trial. Generally, Attorney Ahern would investigate his cases through a combination of either his own investigation, utilizing an investigator employed by the public defender's office, or a hired private investigator. In the petitioner's case, Attorney Ahern utilized the services of private investigator James Byrd, formerly of JBI Investigative Services, and who is recently deceased. Based upon information from police reports and provided by the petitioner, Mr. Byrd conducted an investigation for the defense that centered on the petitioner's alibi and showing that Tyrone Spears and/or Gene John (a.k.a. Pepper) shot the victim.

The petitioner brought his first habeas action in the judicial district of New Haven in 1998. After the assignment of Attorney Bruce McIntyre as habeas counsel, the petitioner raised claims of ineffective assistance of trial counsel and actual innocence.^[3] As identified in the first habeas court's memorandum of decision when it denied the petitioner's claims, the fifth amended petition asserted claims challenging Attorney Ahern's " pretrial investigation, pretrial investigation into the state's case, trial preparation and investigation in the physical evidence." (Internal quotation marks omitted.) Jones v. Warden, Superior Court, judicial district of New Haven, Docket No. CV-98-0411361-S (August 13, 2009) 2009 WL 2961443. After a three-day habeas trial in which the court heard testimony from numerous witnesses, ^[4] the claims were denied for the reasons articulated in the first habeas court's memorandum of decision. The petitioner appealed from the judgment of the first habeas court, which was affirmed. Jones v. Commissioner of Correction, 134 Conn.App. 905, 40 A.3d 344 (per curiam), cert. denied, 305 Conn. 924, 47 A.3d 884 (2012).

The cornerstone of the state's case during the criminal trial was the testimony of Tyrone Spears, who testified that he, Pepper and the petitioner all fired shots at Eddie Harp's vehicle. At the time of the petitioner's criminal trial, Spears had pleaded guilty to aiding and abetting manslaughter in the first degree in violation of General Statutes § § 53a-55(a)(1) and 53a-8, and was cooperating with the state. Spears' plea agreement did not include an agreement as to the specific amount of incarceration that he would receive. Although Spears faced the maximum sentence, the sentencing court had the discretion to impose less than the maximum by taking into account his cooperation with the state.

At Spears' sentencing proceeding, which occurred after the petitioner was convicted and sentenced, Attorney Donald Dakers, who represented Spears, asked the court to impose a sentence of eighteen years of incarceration, suspended after the service of ten years, followed by a period of probation. However, Judge Ronan sentenced Spears to a total effective sentence of fifteen years of incarceration, suspended after the service of eight years, followed by three years of probation. Spears acknowledged the truth of the facts as presented by prosecutor in his case, then Assistant State's Attorney Gold, who also prosecuted the petitioner.

Attorney Ahern conducted a rigorous cross examination of Spears during the...