Tatum v. Warden

Edgar TATUM v. WARDEN

No. CV164007857

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

August 28, 2019

UNPUBLISHED OPINION

Hon John M. Newson

I. Procedural History

The petitioner was the defendant in the matter of State v Edgar Tatum, CR4-161659 in the Judicial District of Waterbury, where he was charged with Murder, in violation of General Statutes § 53a-54a, and one count of Assault Second Degree, in violation of General Statutes § 53a-60(a)(2).^[1] At all relevant times during the trial portion of the matter, he was represented by Attorney Thomas McDonough. The petitioner elected to be tried by a jury, which could have reasonably found the following facts based on the evidence:

At approximately 10:30 p.m. on February 25, 1988, Larry Parrett was shot and killed in his home in Waterbury, where he lived with his girlfriend, Tracy LeVasseur. Anthony Lombardo, who lived on the same street, was also shot and wounded at the same time and place. Earlier that evening, Lombardo had been out walking his dog when he noticed a tall black man, later identified as the defendant, knocking on the door of Parrett’s apartment. Lombardo approached the defendant, after having recognized him as someone he had seen at the apartment on other occasions. When LeVasseur opened the door from within, the defendant forced himself and Lombardo into the living room, where LeVasseur and Parrett were smoking cocaine. LeVasseur recognized the defendant as "Ron Jackson," [a known alias of the petitioner] a man from California who, along with other visitors from California, had spent a number of nights at the apartment selling drugs during the months preceding the incident. Parrett also had been involved in the sale of drugs. When the defendant and Parrett began to argue, Lombardo and LeVasseur left the room and went into the kitchen, where three other men were present. A few moments later, Lombardo returned to the living room to find the defendant pointing a gun at Parrett. Lombardo stepped between the two men, thinking that the defendant might be dissuaded from firing. The defendant nevertheless fired four shots from the gun, striking Lombardo in the shoulder and fatally wounding Parrett. That night at the Waterbury police station Lombardo was shown a photographic array from which he chose a photograph of a black man named Jay Frazer as that of the man who had shot him and Parrett. The same night LeVasseur also selected a photograph of Frazer from an array shown to her by the police. Neither array contained a photograph of the defendant. One week later, however, LeVasseur went to the Waterbury police and told them that she had identified the wrong man. A nine-person lineup was then conducted in which Frazer participated but the defendant did not. After seeing Frazer in person, LeVasseur told the police that he was definitely not the assailant. Thereafter, the police showed another photographic array to LeVasseur from which she chose the defendant’s photograph as that of the person who had shot the victim. Lombardo was subsequently shown a photographic array that included the defendant’s picture, but he declined to identify anyone, explaining that he preferred to see the individuals in person. At the probable cause hearing and at trial, both Lombardo and LeVasseur identified the defendant as the man who had shot Lombardo and Parrett.

State v. Tatum, 219 Conn. 721, 723-25, 595 A.2d 322, 324-25 (1991). The jury found the petitioner guilty of murder, but failed to reach a verdict on the assault charge.^[2] On April 6, 1990, the trial court imposed a sentence of sixty years. The petitioner appealed his conviction, which was affirmed. Id. He has also filed several petitions for habeas corpus prior to the present matter, the substance of which will be discussed only to the extent they are relevant to the present decision.

The petitioner commenced the present action on February 11, 2016. The Fifth Amended Petition, filed on January 7, 2019,^[3] originally set forth seven separate counts asserting challenges to the petitioner’s conviction, however, all but Count Four, ineffective assistance against Attorney Chris DeMarco, counsel for the petitioner’s second habeas, and Count Five, ineffective assistance against Attorney Paul Kraus, who represented the petitioner in his third habeas petition, were dismissed prior to trial.^[4] The respondent filed a Return (see footnote 3), generally denying the allegations in the petition and raising several affirmative and special defenses, to which the petitioner filed a timely Reply. The matter was tried before the Court on various dates between January 17 and April 11, 2019, after which the parties were given the opportunity to file post-trial briefs.^[5]

II. Law and Discussion

"As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] ... [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different ... A court can find against a petitioner, with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice prong ...

With respect to the performance prong of Strickland, we are mindful that ‘[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 ... 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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.’

Similarly, the United States Supreme Court has emphasized that a reviewing court is ‘required not simply to give [the trial attorney] the benefit of the doubt ... but to affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as [he] did ...’ ‘[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ " (Internal citations omitted; internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 631-33, 126 A.3d 558 (2015). "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).

Count Four- Ineffective Assistance of Attorney Christopher DeMarco- Second Habeas Counsel

Attorney Chris DeMarco represented the petitioner in a habeas filed in the Judicial District of New Haven, which was given Docket No. CV00-0440732. The petitioner makes numerous allegations of ineffectiveness against him, including failure to investigate, failure to call certain witnesses, and for allegedly abandoning certain claims and arguments concerning claims of ineffectiveness against trial and appellate counsel. This particular petition never proceeded to trial, however, because the Respondent filed a Motion to Dismiss. The motion attacked the self-represented petition dated June 21, 2000,^[6] filed by the petitioner, and was heard on September 3, 2002. At the hearing, Attorney DeMarco indicated that he had discussed the matter with his client^[7] and that they would not be offering any objection to the State’s motion. The Court, Fracasse, J. then dismissed both counts, specifically indicating that count two, a claim of prosecutorial misconduct, was dismissed "without prejudice"^[8] in order to allow for further investigation.

To put this claim in perspective, the petitioner is asserting that he received ineffective representation in a matter where the underlying merits of the claims involved were never determined. Because there was never a determination of the merits of the petitioner’s claims, he suffered no real harm other than time. "A dismissal without prejudice terminates litigation and the court’s responsibilities, while leaving the door open for some new, future litigation ... It is well established that a dismissal without prejudice has no res judicata effect on a subsequent claim ... The petitioner has suffered no harm due to the dismissal of the allegation ... He, therefore, is not aggrieved by the judgment...