POST-CONVICTION PETITION:
I filed a post-conviction hearing act petition before the court on June 29th, 1983; I raised the claim of ineffective assistance of trial counsel. Lynne Flynn testified on February 14th, 1985, stating that on June 17th, 1979, I walked with the aid of a walker and a cane. She also testified to statements made by Daniel O’Neill prior to his death. Exhibit P
In an effort to explain his incompetence to use this exculpatory testimony, my attorney stated: “I could not use Lynn Flynn for anything. Lynn Flynn came to court every day. I think that there was some deficiencies mentally…like Lynne Flynn, you have to look at somebody and say are they going to help or hurt, if they’re telling the absolute God truth, is the jury going to believe them, are they going to like them, lot of things enter into it. I don’t know whether I would have used alibi witnesses simply because they were there”. Regardless, it should be noted that he admitted that he was aware of this testimony but failed to utilize it.
Q. I see. Mr. Ciccone, did he speak to you about an alibi defense, the defendant, I
Mean?
A. To say I absolutely remember anything other that he was with Lynne Flynn at the time that it happened would be a lie, because I don’t remember.
I testified that I advised counsel of these events on June 17th, 1979. I also testified about my medical condition at the time of the crime. I told counsel to speak to Ms. Flynn, Daniel O’neill, and my doctor, Thomas Kain. I also requested to testify in my defense.
My attorney, Thomas Ciccone, stated the following reason for not presenting my testimony:
“No one specific reason. The principle thing was as I said; I don’t think I’ve had a client that was quite as confused. He didn’t know what was going on and he was very, very angry with the system and he was very angry with everything and I thought he was going to lash out at the jury I didn’t want him to take the stand and do that. Barbara Christie (the prosecutor) was a real bait artist, she would come in and just bait him with a lot of misstatements and everything else and he would take umbrage. He wasn’t smart enough to realize why she was doing it and how she was going about it. I didn’t want to subject him to Barbara Christie under any circumstances at all”. Exhibit Q
I was young, ignorant, illiterate, surrounded by hostile sentiment, hauled back and forth under guard, charged with an atrocious crime regarded especially heinous in the community where I was to be tried, was put in peril of my life, the commonwealth seeking the death penalty, and my attorney did not seem to care. I was innocent! How was I supposed to feel? I still feel the jury would have believed and understood the truth, if they had just had the opportunity to hear it.
On March 14th, 1985, Doctor Thomas Kain, my orthopedic surgeon, finally testified during the post-conviction hearing that on the early morning hours of March 3rd, 1979, (3 months prior to the crime) I was in a serious car accident and I was transported to Mercy Catholic Medical Center at 54th and
Cedar Avenue. I was examined in the emergency room and found to have two fractures of the right forearm bones. There was also a decrease in the motor power and sensation of both lower limbs. Medical Records
I was transported to Fitzgerald Mercy Medical Center on March 7th, where Dr. Kain treated me. I underwent an open reduction and internal fixation of the right radius and ulna bones where two compression plates (5 ½ and 6 inch plates and 11 screws) were installed in my arm. Dr. Thomas Kain testified to the following facts:
Q.Doctor, the injuries that you’ve described to this court, how would they affect one person’s movement, or ability to observe normal daily activities?
A. Initially, hinder movement activities significantly, I mean the man was discharged
from Fitzgerald Mercy Hospital in a wheel chair. The question then comes up how long would his activities be impaired and from what degree of activities. Certainly from these two injuries, I would say to return a man to heavy work for example would be at least four months.
Q. Doctor, would the injuries that Mr. O’neill suffered or sustained would they in any
way affect his ability to run?
A. Definitely.
Q. Or walk?
A. Yes.
Q. The injuries to his arm, would that in any way affect Mr. O’Neill’s ability to
Climb or carry or lift heavy objects?
A. Definitely, no question about it.
Dr. Kain also testified to another incident which occurred on June 2nd, 1979,
(just two weeks prior to the crime) which medical records indicated I had sustained a through and through gunshot wound to the right thigh. The Doctor testified to the affects of this wound and my recuperation from the prior injury in the following testimony:
Q. How if at all, of course, would it affect his daily normal activities, such as
climbing, running, jumping, throwing?
A. I’ll tell you after one of these wounds, for the first two or three days afterwards, he doesn’t think much about walking, he’s definitely not thinking about climbing, it again depends on the rate the wound is going to heal. But he’s going to be stiff and slow and not moving around for any significant degree, for several days, at least two weeks.
Q. Doctor, the record would reflect that it wasn’t jogging but actually running, would
Mr. O’neill be able to run at high speed on June 17th, 1979?
A. I personally doubt that he could on that date.Exhibit B