158662 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION RE RESPONDENT'S MOTION FOR JUDGMENT OF DISMISSAL

This matter arises from the petition of Rofio Greenfield (petitioner) for a writ of habeas corpus.   He was charged in the judicial district of New Haven, under Docket No. CR6-328136, with murder in violation of General Statutes § 53a-54a.   After a jury trial, he was convicted as charged and sentenced by the court, Maiocco, J., to forty-five years incarceration.   Attorneys Beth Merkin and Brian Carlow represented him at his criminal trial.   The petitioner appealed his conviction, which was upheld.   See State v. Greenfield, 228 Conn. 62, 634 A.2d 879 (1993).

In his amended petition filed on November 3, 2009, he alleges that his conviction is illegal due to the ineffective assistance of Attorneys Merkin (count one) and Carlow (count two) and that he is actually innocent (count three).   On February 9, 2010, pursuant to Practice Book § 23-29(3), this court granted the respondent's motion to dismiss the petitioner's claims of ineffective assistance of counsel against Attorneys Merkin and Carlow.   See Greenfield v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 05 4000636 (February 5, 2010, Nazzaro, J.).

The only remaining claim, the petitioner's claim of actual innocence, came to trial on May 11, 2010.   The court heard testimony from Attorney Merkin.   The petitioner entered into evidence transcripts of his criminal trial and a copy of the medical examiner's report.   After the petitioner rested, the respondent orally moved for a judgment of dismissal.¹  Having reviewed all the evidence in the light most favorable to the petitioner, this court concludes that the petitioner has failed to make out a prima facie case of actual innocence.   The motion for judgment of dismissal is, thus, GRANTED.

FACTS

“The jury could reasonably have found the following facts.   On June 25, 1990, the defendant accompanied the victim, William Dolphin, into the victim's apartment building in New Haven.   They were seen entering the building together by a resident of the building, Robert Terry.   The defendant and the victim went into the victim's one room efficiency apartment on the sixth floor.   The defendant attacked the victim, hitting him repeatedly, targeting his head and neck, and leaving him unconscious in the hallway.

“After attacking the victim, the defendant left the building at a walking pace.   Terry was sitting outside, at the back of the building, with his grandson Ken Evans, and they observed the defendant as he walked by, wearing a stained shirt.   The defendant turned toward them.   Evans said ‘hey,’ and the defendant looked startled, then raised his hand at them and Terry waved back.   The defendant then turned around and walked in a different direction.

“The victim's neighbor, Concetta Apuzzo, discovered the victim lying in the sixth floor hallway and called 911.   When the paramedics and police arrived on the scene, they found the victim lying unconscious in the hallway outside his apartment.   The victim's face was bloodied and he had a forehead compression, a dented area of the skull.   The attack had left pools of blood from the bed area through the kitchen to the outside hallway, with blood splatters and smears on a counter, wall and bed.   The floor of the kitchen was so covered with blood that there was no place for the crime scene technician to walk without stepping in it.   There was a broken lamp on the bed, its shade on the floor, two chairs knocked over, and the victim's two denture plates were lying on the bed and floor.   The overall condition of the apartment was described by investigating officer Robert Mullins as consistent with a ‘violent struggle.’

“While the police were investigating the scene and interviewing witnesses, the defendant returned to the apartment building.   At this point, the defendant had no shirt on, and his pants and shoes were covered with blood.   Sergeant Anthony Griego, noticing the defendant's appearance, asked the defendant to come in the building with him and the defendant did so voluntarily.   Inside, Griego found Sergeant Joseph Howard and directed Howard's' attention to the defendant.   At the time, Howard was talking with Terry.   Terry recognized the defendant and asked him if he was the same man who had been with the victim earlier and later had waved at him.   The defendant answered, ‘Yeah.’

“Officer Alpha Dacosta testified that fingerprints found on the victim's stereo cabinet and cigarette lighter matched those of the defendant.   Joy Reho, a specialist in blood and body fluid analysis at the state police forensic laboratory, tested the blood on the defendant's jeans and determined that it could not have come from the defendant and was consistent with the victim's blood type.   Henry Lee, the director of the state police forensic laboratory and a crime scene reconstruction expert, testified that he had examined crime scene photographs and physical evidence to reconstruct the struggle between the victim and his assailant, using blood spatter pattern interpretation.   In his opinion, there had been an attack near the bed, characterized by forceful impacts by a fist, kick, or object.   At one point, the victim had been on the floor and had tried to get up, smearing blood on a wall with his hand.   Blood spatters on the defendant's sneakers indicated that the sneakers must have been very near the impact, consistent with the defendant having kicked the victim.

“Daniel Lowe, the victim's treating physician, testified that when the victim had been admitted to the hospital, he had abrasions and contusions around his head.   X-rays revealed facial fractures, including a fracture of the maxillary sinus bone, which is the supporting bone of the eye, and bilateral fractures above the eyes.   Lowe opined that it would take a ‘major blow’ transferring a considerable amount of energy to the head to cause these fractures, and stated his belief that the injuries had been caused by blows from a rapidly moving blunt object, fist or kick.   Finally, Lowe testified that the defendant had remained in essentially a comatose state from the time of the assault until his death as a result of his injuries on July 9, 1990.”  State v. Greenfield, supra, 228 Conn. 64-66.   Additional facts will be discussed as necessary.

DISCUSSION

“Practice Book § 15-8 provides in relevant part:  ‘If, on the trial of any issue of fact in a civil matter tried to the court, the [petitioner] has produced evidence and rested, a [respondent] may move for judgment of dismissal, and the judicial authority may grant such motion if the [petitioner] has failed to make out a prima facie case ․’ A prima facie case ․ is one sufficient to raise an issue to go to the trier of fact ․ In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove ․ In evaluating a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the petitioner], and every reasonable inference is to be drawn in [the petitioner's] favor.”  (Internal quotation marks omitted.)  Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 388, 966 A.2d 780 (2009).

In count three of his amended petition, the petitioner alleges “that newly discovered evidence in the form of [m]edical documentation, X-rays and witnesses ․ indicates that he [is] actually innocent of the charge of murder and was not the person who killed the victim ․”

“Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence ․ [Our Appellate Court], however, has held that a claim of actual innocence must be based on newly discovered evidence ․ [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered ․ This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence.”  (Internal quotation marks omitted.)  Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009).

Thereafter, to succeed on a claim of actual innocence, “[f]irst, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence- both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial-he is actually innocent of the crime of which he stands convicted.   Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom ․ no reasonable fact finder would find the petitioner guilty of the crime.”  (Internal quotation marks omitted.)   Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009).

In the present case, the petitioner presented transcripts of his criminal trial, a copy of the medical examiner's report and the testimony of Attorney Merkin in support of his claim of actual innocence.   It is his contention that certain medical documents in the possession of Yale-New Haven hospital, the hospital where the victim was treated and later died, are likely to reveal that he did not cause the victim's death.   Specifically, he points to X-rays and CAT scans that were allegedly not introduced into evidence at his criminal trial.   He also suggests that the victim's medical records may contain subsequent documentation generated from an internal or external review that may reveal whether all procedures were properly followed with respect to the victim's medical treatment.   The petitioner did not produce any such documentation or the aforementioned X-rays and CAT scans at the habeas trial.

Attorney Merkin testified at the habeas trial that the victim's medical records were entered into evidence at the criminal trial and that the defense investigated whether there was any evidence of a gross intervening cause by Yale-New Haven hospital.   See State v. Shabazz, 246 Conn. 746, 755, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1116, 143 L.Ed.2d 111 (1999) (“gross negligence [by medical personnel] may permit the defendant to escape liability when it was the sole cause of the death”).   She further testified that she found a letter in her file indicating that the victim's medical records were sent to an expert for consultation and that no evidence of a gross intervening cause was discovered.   Attorney Merkin did not, however, remember whether the victim's medical records included X-rays and CAT scans or whether the defense otherwise had the victim's X-rays and CAT scans.

The transcripts of the petitioner's criminal trial reveal that the victim's medical records from Yale-New Haven hospital were entered into evidence and that Attorneys Merkin and Carlow had “the complete medical records.”  (Exhibit 1, p. 195.)   Additionally, both the treating physician and the medical examiner were questioned extensively about the victim's injuries, including what the X-rays and CAT scans showed.  (Exhibit 1, pp. 186, 206-09, 222-29 and Exhibit 2.) Both unequivocally opined that the victim's death was caused by blunt trauma to the head and neck.  (Exhibit 1, p. 189;  Exhibit 2, pp. 98, 139.)   The defense effectively tried to challenge their assessments, emphasizing some of the victim's allegedly pre-existing medical conditions and evidence that the victim had a pneumonia at the time of his death.  (Exhibit 1, pp. 201-22, Exhibit 2, pp. 107-43.)

Viewing this evidence in the light most favorable to the petitioner, this court cannot conclude that the petitioner has established a prima facie case of actual innocence.   First, he has not presented any evidence that can be construed as newly discovered.   It is clear that his attorneys had the victim's medical records.   Regardless of whether those records included the victim's X-rays and CAT scans, his attorneys clearly were aware of them, as evidenced by their reference to them during the criminal trial, and could have obtained them.   In any event, these medical documents were not even produced at the habeas trial.   Moreover, none of the evidence contained in the criminal trial transcripts or medical examiner's report can be considered newly discovered.   The medical examiner's report was entered into evidence at the criminal trial.  (Exhibit 2, p. 143.)

Second, the petitioner has not presented any evidence establishing that he is actually innocent of the underlying offense.   Although alluded to, he did not produce any evidence of a gross intervening cause of the victim's death.   The fact that the victim died approximately fourteen days after the assault and that he may have had such pre-existing conditions as hypertension does not absolve the petitioner from criminal liability for his death.  “Every person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes cooperated to produce that result ․ [Furthermore] ‘[p]roximate cause’ in the criminal law does not necessarily mean the last act of cause, or the act in point of time nearest to death.   The concept of proximate cause incorporates the notion that an accused may be charged with a criminal offense even though his acts were not the immediate cause of death.   An act or omission to act is the proximate cause of death when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient, intervening cause, to the resulting death.   It is the cause without which the death would not have occurred and the predominating cause, the substantial factor, from which death follows as a natural, direct and immediate consequence.”  (Citations omitted;  internal quotation marks omitted.)  State v. Spates, 176 Conn. 227, 233-34, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S.Ct. 1248, 59 L.Ed.2d 475 (1979).

CONCLUSION

Based on the foregoing, the respondent's motion for judgment of dismissal is GRANTED;  the petition is dismissed.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

Nazzaro, J.

FOOTNOTES

FN1. The respondent actually moved for a directed verdict but “as a habeas trial is without a jury, the motion should not have been characterized as a motion for a directed verdict but would be more accurately presented as a motion for dismissal for failure to make out a prima facie case under Practice Book § 15-8.”  Grant v. Commissioner of Correction, 121 Conn.App. 295, 299 n.2 (2010)..  FN1. The respondent actually moved for a directed verdict but “as a habeas trial is without a jury, the motion should not have been characterized as a motion for a directed verdict but would be more accurately presented as a motion for dismissal for failure to make out a prima facie case under Practice Book § 15-8.”  Grant v. Commissioner of Correction, 121 Conn.App. 295, 299 n.2 (2010).

Nazzaro, John J., J.