Sean Bodamer v. Warden (2011)

Memorandum of Decision

The petitioner in this habeas corpus case pleaded guilty to felony murder and received a sentence of forty-two years.   The conviction stems from an attempt by the petitioner and three codefendants to rob occupants of an apartment of drugs and cash.   During the attempted robbery, the petitioner fired shots from an AK–47 rifle, killing one person and wounding a second.   The petitioner now claims that his trial counsel, attorney (now Workers' Compensation Commissioner) Daniel Dilzer, rendered ineffective assistance of counsel.   The court denies the petition.

The petition alleges that Dilzer was ineffective in failing sufficiently to explain the nature and elements of the state's case, investigate the case, review witness statements with the petitioner, pursue a defense of mental disease or defect or diminished capacity, interview key witnesses on these defenses, challenge the legality of the petitioner's statements to the police, prevent petitioner from pleading guilty despite the absence of medication for his mental illness, and inform the petitioner of the process for sentence modification.   The petitioner testified on some of these points, but his testimony—that Dilzer never reviewed with him the codefendants' statements, his own statement, the physical evidence, or the elements of the crimes, and told the petitioner that he was facing the death penalty—is simply incredible and not worthy of belief.

The court instead credits the contrary testimony of Dilzer, an experienced criminal defense attorney, in all material respects.   Dilzer met and communicated with the petitioner regularly, and spent a great deal of time with him explaining the charges and the state's case.   This review included all statements contained in the state's files.   Dilzer also hired an investigator who interviewed the petitioner.   Dilzer reasonably concluded that he was unlikely to be able to interview the three codefendants, because they were facing charges and represented by other lawyers.

Dilzer knew that he faced a significant hurdle if the case went to trial.   Because the petitioner did not dispute his involvement in the crime, the only available defenses were mental illness, intoxication, or diminished capacity.   The three codefendants, however, would testify that the petitioner helped plan the robbery, drove to his house to pick up his AK–47, fired the weapon at the scene, fled the scene after the shootings, laughed and engaged in kissing with a female participant after the crime, disposed of the weapon, and then later bragged about the shooting.   In addition, the petitioner admitted much of the plan and his participation to the police, although he lied about where he disposed of the gun.  (Exhibits 3, 4, C, D, E.) Dilzer reasonably concluded that this evidence of planning, premeditation, concealment, and manipulation would tend to negate a defense that the petitioner lacked substantial capacity to appreciate the wrongfulness of his conduct, to conform his conduct to law, or to form the specific intent to commit robbery.   See General Statutes §§ 53a–7, 53a–13.¹

Dilzer did hire David Mantel, an experienced clinical psychologist, to investigate mental and social issues that might mitigate a sentence.   While Mantell was not hired to examine the petitioner for mental diseases or defects that might negate his responsibility for the crimes, Dilzer had worked with Mantell before, and reasonably believed that Mantell would identify any such mental illness if one existed.   Mantell's report concludes that the petitioner had chronic substance abuse problems and various other deficits, but does not find any major mental illness.   The petitioner has not identified any other witness who Dilzer should have interviewed to find evidence of mental illness affecting the petitioner.²

Dilzer was aware of legal issues concerning the petitioner's two signed statements to the police and talked to the petitioner about them.   Dilzer testified that, if the case had gone to trial, he would have filed a motion to suppress.   There is, however, no specific evidence of any defect in the manner in which the police took the petitioner's statements.   The respondent's evidence reveals that the petitioner signed a notice and waiver of rights form for both statements.  (Exhibits D, E.) Further, the petitioner provided the second statement (Exhibit E) after being in police custody for approximately thirteen hours after his arrest (Exhibit 3), making it unlikely that he was intoxicated at the time.   Finally, Dilzer added that, even if he had prevailed on a motion to suppress, it would not have significantly advanced the petitioner's cause because the three codefendants would still have implicated the petitioner.

Prior to his guilty plea, Dilzer went over the elements of the crime and the state's evidence.   The petitioner never mentioned any concern about not receiving medication.   The court, Alexander, J., asked him at the time of the plea whether he had taken “any kind of alcohol, any medicine or any drugs today that prevents you from understanding what you're doing in court?” and the petitioner answered “No.” (Exhibit B, p. 4.) Judge Alexander thoroughly canvassed the petitioner's plea and found it voluntarily and knowingly made.   (Exhibit B, p. 12.)   At the time of sentencing, when the petitioner moved to withdraw his plea, he stated that he was tricked and confused and that he has a number of medical and mental problems, but the petitioner never mentioned a specific concern that he had not received his medication.  (Exhibit C.) The court found that Dilzer was an “extremely prepared advocate;  he knew all of the case thoroughly, in this Court's opinion” (Exhibit C, p. 8);  and rejected a claim of ineffective assistance of counsel.

Dilzer testified that he did not advise the petitioner to apply for a sentence reduction.   This restraint was appropriate because it appears that the procedure is not available in the petitioner's case.   The applicable portion of the statute provides for a hearing to consider a reduction of sentence “[a]t any time during the period of a definite sentence of more than three years, upon agreement of the defendant and the state's attorney to seek review of the sentence ․” General Statutes § 53a–39(b).  There is no evidence that the state would agree to a sentence reduction.

Further, Dilzer obtained an excellent deal for his client.   As the court explained, the petitioner faced over 100 years in prison for this case alone.   (Exhibit B, p. 2.) The petitioner also had other pending cases, which Dilzer succeeded in getting the state to nolle at the time of sentencing.  (Exhibit B, p. 6.) Dilzer's main goal was to prevent the petitioner, who was nineteen at the time of the crime, from having to serve the rest of his life in prison.   Dilzer achieved that goal.   It is hard to imagine a basis for additional sentence reduction given the brutality of the petitioner's crimes, his complete disregard for human life, and the much greater exposure that he faced.

In none of these respects did Dilzer's representation “[fall] below an objective standard of reasonableness,” so as to constitute deficient performance.  (Internal quotation marks omitted.)  Jarrett v. Commissioner of Correction, 108 Conn.App. 59, 70, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008).   Further, in a guilty plea case, in order to prove prejudice, the petitioner must show a “reasonable likelihood of a different outcome at trial.”  Copas v. Commissioner, 234 Conn. 139, 166–67, 662 A.2d 718 (1995).   At the habeas trial, the petitioner did not introduce any expert evidence to show that the petitioner would have a valid mental health or intoxication defense at trial.   Accordingly, the petitioner has proven neither deficient performance nor prejudice.   His claim of ineffective assistance of counsel must fail.

The petition for a writ of habeas corpus is denied.   Judgment shall enter for the respondent.   Petitioner shall submit a judgment file within thirty days of the date of this decision.

It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. Further, the defense of lack of capacity due to mental disease or defect is not available if the mental disease or defect was caused by voluntary intoxication.  General Statutes § 53a–13(b)..  FN1. Further, the defense of lack of capacity due to mental disease or defect is not available if the mental disease or defect was caused by voluntary intoxication.  General Statutes § 53a–13(b).

FN2. Dilzer did represent at sentencing that he made the psychological evaluation available to the court during negotiations, and that the court took it into consideration in formulating an offer.  (Exhibit C, pp. 24–25.).  FN2. Dilzer did represent at sentencing that he made the psychological evaluation available to the court during negotiations, and that the court took it into consideration in formulating an offer.  (Exhibit C, pp. 24–25.)

Schuman, Carl J., J.