might have been for other reasons. (See Tr. 1528; Patel Aff. PP 19-24, 30-32)
Third, Martinez faults Patel for not calling Sylvester Lewis, who allegedly would have testified that Martinez left for Atlanta "around the time of the Super Bowl." This supposedly would have contradicted Brown's testimony that Martinez complained to Brown in person, before Martinez moved to Atlanta, that Harney had notified authorities in response to a reward poster distributed by the Post Office. (Martinez Aff. 7-8; Tr. 344-45, 357-59) Patel stated in his affidavit that he made efforts to contact Lewis, but that his calls were not returned, and that he ultimately learned that Lewis had retained counsel and did not wish to cooperate with Martinez. (Patel Aff. PP 35-38) Moreover, evidence at trial showed that the distribution of the reward poster began approximately one week after Gonzalez was murdered, somewhere around January 28, 1993 (Tr. 1279), which was approximately three days prior to the Super Bowl game on January 31, 1993. Lewis' testimony, as proffered by Martinez, therefore would not have contradicted Brown's testimony. Further, if Lewis had testified, he would have been confronted with tape recorded statements that he made to Rosado from which one easily can infer that Lewis knew that Martinez was involved in the robbery.
Fourth, Martinez contends that Patel should have called Sandy Reekstin, who supposedly would have testified that Martinez "was not in New York at a critical time." (Martinez Aff. 8) Martinez does not specify what "critical time" he refers to, but the government did not contend that Martinez was in New York on any specific dates other than January 14 and 21, 1993. Patel explained that Reekstin resisted Patel's efforts to reach her and then ultimately hired counsel and decided not to cooperate with Martinez' defense. (Patel Aff. PP 36-38)
Next, Martinez contends that Joe Amato, the person who repaired Rosado's car, and William Houston, the government's accident reconstruction expert, also should have been called on the defense case. (Martinez Aff. 8) Patel attempted to interview Amato. However, Amato's counsel objected to his client's speaking with Patel. (Patel Aff. P 33) Patel correctly notes that calling Amato as a witness in absence of a prior interview would have been quite risky,
especially in view of Amato's status as the subject of an ongoing grand jury investigation.
(Patel Aff. PP 33-34) Moreover, even a cursory review of Amato's testimony at Rosado's trial reveals that Amato would have been subject to vigorous impeachment. (Abrams Aff. Ex. O)
Similarly, it is hard to imagine how Houston's testimony, which demonstrated that Amato's tale regarding how Rosado's car had been damaged could not have been true, could have assisted Martinez in his defense. While Houston originally suspected that the damage to the Cavalier could have been caused by two separate accidents, Houston stated in his final report that the damage sustained by the Cavalier was consistent with an accident occurring in the fashion described by Rosado. (Abrams Aff. Ex. P)
Martinez maintains, finally, that Patel should have called Robert Lazzaro who, in the Rosado trial, described someone resembling Rosado, not Martinez, walking on New York Avenue in Fort Lee, New Jersey, where the postal truck and victim's body were found. (Martinez Aff. 8) Martinez argues that this live testimony would have undermined the government's case far more than Patel's introduction of various portions of the government's summation in the Rosado trial into the record. (Id.) Patel explained that he made the difficult decision whether to call Lazzaro with Martinez and that Martinez agreed with the ultimate decision not to call him as a witness. (Patel Aff. P 42) Patel recognized that calling Lazzaro at trial risked a possible in court identification of Martinez. A statement by Lazzaro that Martinez in fact was the person walking on New York Avenue on January 21, 1993 would have been devastating to the defense. (Id.) Presenting Lazzaro's former testimony, including his description of a person who resembled Rosado more than Martinez, and the government's argument at the prior trial that in fact it was Rosado, offered a safer means to the same end. (Id. P 43)
The Other Allegations Regarding Patel's Representation at Trial
Martinez lodges additional complaints regarding Patel's representation of him during the trial. He complains that Patel should not have agreed to the entry of the protective order prohibited the defense, when interviewing third party witnesses, from revealing that George Gallego was the person who provided information accusing the defendants. (Martinez Aff. 9-10; Tr. 291-93) Patel indicate that he discussed the contents of George Gallego's statements with Martinez and appears not to have felt hampered by the protective order. (Patel Aff. P 45) Moreover, Martinez does not specify how this restriction inhibited Martinez' defense. Regardless of the defendant's position on the protective order, the Court had the supervisory authority to enter the order to protect George Gallego and his family.
Patel's representation is said by Martinez to have been deficient also due to his failure to subpoena an informant who allegedly stated that Rosado was the shooter.
(Martinez Aff. 10) The "confidential informant" referred to in that memorandum was Habib Ullah who, Patel explained, already had testified falsely about Martinez on a prior occasion. (Patel Aff. P 46) Significantly, the government conducted further investigation and learned that Ullah and the person to whom Ullah originally provided the information both recalled that Ullah never said that Rosado was the shooter. (Abrams Aff. P 4)
Martinez faults Patel for not questioning Gail Lazzaro to establish that the person she saw on New York Avenue was Rosado and that only three persons were present on the street on January 21, 1993. (Martinez Aff. 10) Patel explained that Ms. Lazzaro did not identify Martinez and that cross-examining her on the issue therefore only would have raised the possibility of speculation in the minds of the jurors as to who that person was. (Patel Aff. P 47)
Martinez appears to complain that his trial counsel should have attempted to introduce Martinez' prior statements to postal inspectors in which he denied participating in the crime. (Martinez Aff. 10) Patel responded that well settled law precluded the introduction of such statements. (Patel Aff P 48)
Finally, Martinez complains that Patel did not provide him with copies of the government's witness statements and other material until the morning of trial. (Martinez Aff. 11) Patel states that Orden informed him that he had furnished Martinez with numerous documents before trial. In addition, Martinez was given daily copy of the trial transcript every morning. (Patel Aff. P49)
The Legal Standard Governing Ineffective Assistance Claims
To prevail on his Sixth Amendment claim of ineffective counsel, Martinez must demonstrate both "that counsel's performance was deficient. . . [and] that the deficient performance prejudiced the defense." Strickland v. Washington. 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); accord, e.g., Lockhart v. Fretwell, 506 U.S. 364, 369, 122 L. Ed. 2d 180, 113 S. Ct. 838 (1993); United States v. Coffin, 76 F.3d 494, 497-98 (2d Cir.), cert. denied, 134 L. Ed. 2d 565, 116 S. Ct. 1445 (1996). The attorney must be shown to have committed errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. In assessing an attorney's conduct, the reviewing court must engage in a "highly deferential" review of the attorney's conduct and must indulge "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. A reviewing court, rather than "grade counsel's performance," limits itself to determining "whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process." Id. at 696-97; see also United States v. Aguirre, 912 F.2d 555, 561 (2d Cir. 1990).
In weighing complaints from convicted defendants concerning counsel's preparation and trial performance, courts long have recognized that "there are countless ways to provide effective assistance in any given case" and that "even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689; see also United States v. Aguirre, 912 F.2d at 560. Recognizing the many difficult decisions that confront counsel in preparing for trial, the Supreme Court has emphasized that an attorney's:
"strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91.
In reviewing the appropriateness of the many strategic decisions made by counsel, the reviewing court should judge counsel's conduct as of the time counsel acted and not employ hindsight to fault counsel's strategic decisions. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 130 L. Ed. 2d 35, 115 S. Ct. 81 (1994). Decisions to call or bypass particular witnesses, which have been recognized to be peculiarly a matter of professional judgment, are "practically never second-guessed. United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir.), cert. denied, 417 U.S. 972, 41 L. Ed. 2d 1144, 94 S. Ct. 3179 (1974); see also United States v. Helgesen, 669 F.2d 69, 72 (2d Cir.), cert. denied, 456 U.S. 929, 72 L. Ed. 2d 445, 102 S. Ct. 1978 (1982).
Even if a defendant establishes incompetence, the defendant is not entitled to a new trial unless he or she demonstrates "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; accord, e.g., United States v. Coffin, 76 F.3d at 498.
Evaluation of counsel's effectiveness in the context of a defendant's decision whether to testify presents other issues. A defendant, of course, has a constitutional right to testify in his or her defense. The decision whether to do so ultimately belongs to the client, not the lawyer. See, e.g., DeLuca v. Lord, 858 F. Supp. 1330, 1352-56, 1360-61 (S.D.N.Y. 1994), aff'd on other grounds, 77 F.3d 578 (2d Cir. 1996). This Court assumes, without deciding, moreover, that the assistance of counsel, in order to meet the constitutionally required threshold of effectiveness, must include advice to the client as to whether to testify in a given case. See United States v. Vargas, 920 F.2d 167, 170 (2d Cir. 1990) (counsel's reasonable advice not to testify dispositive of ineffective assistance claim); cf. Boria v. Keane, No. 95-2688, slip op. 3657, 3663-66 (2d Cir. Oct. 25, 1996) (failure to advise whether proposed plea bargain advisable renders assistance of counsel ineffective). Given the Court's findings of fact, it is unnecessary to rule on this issue.
Martinez Has Not Established Ineffective Assistance
Martinez Waived His Right To Testify
Martinez was told that the decision whether to testify was his to make. He was ably advised as to the merits of taking the stand. As indicated, he deliberately and intelligently chose not to do so. He therefore knowingly and voluntarily waived his right to testify. His claim of ineffective assistance in this regard is a fabrication.
Counsel Adequately Investigated and Prepared Martinez' Defense
Martinez claims that his prior counsel failed to follow numerous leads. This contention is without merit.
To begin with, Martinez had no alibi even if all of the witnesses whom he now claims should have been called had testified just as Martinez claims they would have. The government placed Martinez in New York only on January 14 and 21, 1993 and on the unidentified date in November or early December 1992 when the Post Office was scouted. All of the evidence to which Martinez points would have established only that Martinez was in Atlanta on some days in November and December, in New York on others, and that he relocated to Atlanta shortly after the murder. The evidence he claims should have been adduced therefore would have proved nothing. Indeed, Martinez' present counsel implied that none of this evidence would have been significant unless Martinez had testified and even then it would have been important only by corroborating him on inconclusive details. (H. Tr. 240-41; Def. Mem. 8)
The claims of incompetence have been rebutted by the affidavits and Patel's testimony. The Court is inclined to accept Orden's assertion that he pursued every lead that Martinez gave him, but was hampered by Martinez' failure to tell him where he was to establish his alibi. (Orden Aff. PP 4-5) Without having provided his attorney with specific information as to his location, counsel hardly could have been expected to find witnesses buttressing the defendant's alibi. In any case, Orden turned the case over to Patel sufficiently in advance of trial so that any lack of preparation on his part did not prejudice Martinez in view of Patel's subsequent efforts. The Court rejects Martinez' assertion that Patel had insufficient time in which to prepare and, indeed, finds that Patel's defense substantially exceeded the constitutional minimum.
Patel credibly has answered the many charges of incompetence leveled by Martinez. He cannot be faulted for not introducing records demonstrating that Martinez' Audi had repair work in 1992 because the repair dates did not conflict with Harney's testimony as to when Martinez, Harney, and others scouted the Parkchester Post Office. Nor can he be faulted for not having called Jacqueline Zacharie or Simone Aguilera to testify about the repair work. Their testimony would not have negated any government proof. Moreover, Martinez did not suggest to Patel that these witnesses be called, and Patel saw no reason to call Aguilera as a result of his conversations with her.
Had Aguilera testified, she would have been confronted with statements that she made to postal inspectors about Martinez beating his wife and with statements in which Aguilera revealed that she had heard that Steven Martinez was involved in the robbery of the postal truck driver. (Abrams Aff. Ex. K, N)
Patel had ample basis for believing that calling the defendant's wife, Melanie Martinez, would have posed significant risks. Had she taken the witness stand, Ms. Martinez might have been forced to reveal that she had "left with the children in the middle of the night without telling Mr. Martinez" (Patel Aff. P 20), thereby discrediting the image of a solid family that counsel tried to paint for the jury. (Patel Aff. P 24 H. Tr. 131-32)
Met with a lack of cooperation from Sylvester Lewis and Sandy Reekstin (Patel Aff. PP 35-38), Patel understandably choose not to call them as witnesses. Had Lewis taken the stand, he would have been subject to cross-examination concerning statements he made to Rosado, which were on tape and clearly indicated that he knew that Martinez was involved in the robbery. (Abrams Aff. Ex. M)
Patel's decision not to call Joe Amato or William Houston, both of whom could have testified concerning the accident damage to Rosado's car, was sound. Patel believed that Amato was under investigation and would not seek to help his former client. (Patel Aff. P 34; H. Tr. 149) In addition, Amato's testimony at the Rosado trial, in which he claimed that Rosado's car was damaged by a Chevy Suburban, was not credible. Had he maintained that version of events, which the accident reconstruction expert, William Houston, would have said is inconsistent with the actual accident damage, his testimony would have enhanced, rather than diminished, the government's prospects. (Abrams Aff. Ex. O) Further, Houston generated a report which concluded that the accident damage to the car was consistent with Rosado's testimony. (Abrams Aff. Ex. P)
Patel's decision not to call Elaine Martinez, Martinez' sister, and Pam Gallego, the wife of George Gallego, was within the bounds of appropriate professional judgment. Elaine Martinez had no recollection of any pertinent events and did not recall driving her brother to their mother's house on the day of the robbery and homicide, thereby undermining the defendant's statements to that effect. (Patel Aff. PP 25-26; Abrams Aff. Ex. U (memorandum of interview of Elaine Martinez); H. Tr. 151-54) Patel concluded that Pam Gallego, the wife of a co-defendant who recently had pleaded guilty would not likely have exonerated his client. (Patel Aff. P 31)
Finally, Patel's decision not to call Robert Lazzaro was sound. By not calling Lazzaro as a defense witness, Patel avoided the risk that Lazzaro would identify Martinez in court. At the same time, Patel ensured that the jury heard Lazzaro's description of the person walking in front of his house, a description that resembled Rosado (and not Martinez), by reading into evidence the pertinent contents of the Government's summation in the Rosado trial. (Patel Aff. P 43; H. Tr. 150-51) The Court finds, moreover, that Martinez agreed with this strategy.
Patel Adequately Defended Martinez During the Trial
Contrary to Martinez' present claims, Patel did share with Martinez the information contained in George Gallego's proffer and did provide Martinez with a copy of the pertinent documents. (Patel Aff. P 49)
Patel rightly did not seek to admit the defendant's pretrial admissions, as these statements would have been inadmissible. United States v. Cardascia, 951 F.2d 474 (2d Cir. 1991).
Finally, Patel wisely did not seek to subpoena the informant who supposedly said that Rosado was the shooter. The only informant in this case who could have made that statement was Habib Ullah, who told the government that he never made such a statement. (Abrams Aff. P 4)
Had Ullah testified and repeated the testimony that he gave during the Rosado trial, he would have implicated Martinez and denied making the statement that Rosado was the shooter. (Abrams Aff. Ex. S)
In Any Case, Martinez Was Not Prejudiced
Martinez' motion would fail even if Patel had not so thoroughly refuted Martinez' claims of ineffectiveness by showing that each decision was the product of reasoned professional judgment amply based in the facts known to him at the time. There simply is no reason to believe that the outcome would have been different had all of the evidence to which Martinez now points been addressed.
Most of Martinez' complaints go to his "alibi" evidence -- evidence that he was in Atlanta in late 1992 and early 1993. As noted, however, his evidence would not have established an alibi. It was entirely consistent with the government's theory. It would have showed only that Martinez was back and forth between Atlanta and New York in November and December and that he moved to Atlanta after the murder. (See also H. Tr. 245) (car repair records, according to Martinez' present counsel, "by themselves prove nothing")
He claims also that he was prevented from showing that he inherited about $ 30,000 in 1991 and 1992, which he says would have undercut the alleged economic motive for the crime. But, as indicated previously, his mother testified that he received the money after his father died in 1991, and the government did not challenge the testimony.
One could go on at significantly greater length, but little would be gained. In the last analysis, Martinez has pointed to nothing which, singly or in combination, casts any doubt on the conclusion that the jury would have convicted him even if everything he has mentioned in his motion had been before it. (See also H. Tr. 240-41)
For the foregoing reasons, the motion for a new trial is denied in all respects. The foregoing constitute the Court's findings of fact and conclusions of law. The Court notes also that it has not considered the brief portions of the final transcript that were unsealed during the hearing on this motion. (See H. Tr. 23, 39)
Date: November 6, 1996
Lewis A. Kaplan
United States District Judge