Daniel Diaz v. State of Connecticut et al. (2011)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The petitioner Daniel Diaz has filed a Petition for a New Trial.   His original petition alleged that a final judgment was issued in his criminal case State v. Diaz, CR01–194376 and 194378, on May 24, 2006, and that a defense existed which the petitioner was unable to present because the evidence was “hidden” from him by the respondents.   The respondents are the State of Connecticut and Mary Palmese.   Palmese was the State's Attorney who opposed Diaz in his criminal case.

The respondents deny the plaintiff's allegations.   They have filed a Motion for Summary Judgment, stating that the petitioner cannot meet his burden of establishing the elements of a cause of action for a new trial, because the material undisputed issues of fact support judgment in favor of the respondents as a matter of law.   The court agrees and grants the respondents' motion.

THE ELEMENTS OF A CAUSE OF ACTION FOR A NEW TRIAL

Conn. Gen.Stat. § 52–270(a) governs petitions for a new trial.   It provides that the Superior Court may grant a new trial “for the discovery of new evidence.”   The plaintiff concedes in his original complaint, and conceded during oral argument on July 13, 2011, that this is the provision of the statute that applies to his petition.

Case law defines the elements that must be present for a petitioner to succeed on his petition.   The petitioner must demonstrate, by a preponderance of the evidence, that:  (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence;  (2) it would be material on a new trial;  (3) it is not merely cumulative;  and (4) it is likely to produce a different result in a new trial.  Asherman v. State, 202 Conn. 429, 434, 521 A.2d 797 (2002).

THE ALLEGATIONS IN THE COMPLAINT

The petitioner filed a Substituted Complaint on October 26, 2010, from which, together with his remarks during oral argument on the Motion for Summary Judgment, the court can discern his claim that there are four instances of newly discovered evidence:  1) that Kevin Lockery committed perjury;  2) that Detective Jerry Chrostowski committed perjury;  3) that State's Attorney Mary Palmese suborned perjury ¹ with respect to both Lockery and Palmese's testimony;  and 4) that a bag of narcotics that was part of the evidence had been “compromised” or tampered with.

The respondents deny that any of these instances constitute newly discovered evidence.   They further deny that any perjury was committed or suborned, that any of these instances were material to the petitioner's conviction, and that a presentation of any of them for purposes of a new trial would be likely to change the outcome.

THE MOTION FOR SUMMARY JUDGMENT

The Motion for Summary Judgment presents the following undisputed facts.   The petitioner was arrested in New Britain on March 13, 2001.   The New Britain police had arranged for a known drug user named Kevin Lockery to call the petitioner and arrange to meet the petitioner at a public location to buy drugs from the petitioner.   The police moved in and arrested the petitioner at the location.   Lockery was not present at the location and had nothing further to do with the arrest of the petitioner.   Although the petitioner neither concedes nor disputes it, the police seized from the petitioner at his arrest twenty-five packets of heroin, $1,025 in cash, and a cell phone which displayed the phone number of the recent call from Lockery.   The next day, March 14, 2001, the police executed a search warrant at the petitioner's residence and seized 168 packets of heroin and firearm.

The petitioner was charged with various drug and gun offenses.   At his jury trial the petitioner elected to represent himself.   After hearing from a number of witnesses, including Lockery, the jury found the petitioner guilty of possession of narcotics with intent to sell and other offenses.   The petitioner appealed and his conviction was reversed because of the inadequate canvass by the court on the issue of the petitioner's self-representation as a criminal defendant.  State v. Diaz, 274 Conn. 818, 878 A.2d 1078 (2005).

The petitioner was retried, electing at the second trial to be represented by counsel.   At the second trial, neither side called Lockery to testify, although the police and other witnesses were largely the same.   The petitioner was once again convicted of possession of narcotics with intent to sell and other offenses.   That conviction was upheld on appeal.  State v. Diaz, 109 Conn.App. 519, cert. denied, 209 Conn. 930 (2008).

The respondents move for summary judgment on the grounds that there are no disputed issues of fact about the allegations in the petitioner's complaint.   The respondents argue that 1) Kevin Lockery did not testify at the second trial so he did not commit perjury in a way that could have affected the petitioner;  2) any inaccuracy in the testimony of Detective Jerry Chrostowski was obvious to the petitioner at the time, and cannot be the basis of a claim involving newly-discovered evidence;  3) Mary Palmese's knowledge regarding any inaccuracy in Chrostowski's testimony was also apparent at the time and cannot be the basis of a claim involving newly-discovered evidence;  4) there is no evidence of any kind to suggest that physical evidence at the second trial was tampered with.

The petitioner opposes summary judgment.   Both sides have submitted memoranda of law and exhibits in support of their positions.   The court heard oral argument on July 13, 2011.

THE STANDARDS FOR SUMMARY JUDGMENT

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.  Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).   The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the party is entitled, under principles of substantive law, to a judgment as a matter of law.  Id.

In ruling on a motion for summary judgment, the court's function is not to decide the issues of material fact, but rather to determine whether any such issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts.  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).

In supporting or opposing summary judgment, Conn. P.B. § 17–45 requires that a party file affidavits and other documentary evidence sufficient to establish or refute the existence of a disputed issue of fact.   Unadmitted allegations in the pleadings are not considered competent evidence and do not constitute proof of a material fact.  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).   Rather, in moving for or opposing summary judgment, a party must submit documentation that would form the basis for evidence admissible at trial.  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).   See also Conn. P.B. § 17–46.

THE INACCURACY OF LOCKERY'S TESTIMONY

The petitioner's first problem is that Kevin Lockery did not testify at the petitioner's second criminal trial—the trial that resulted in the petitioner's conviction.   There was testimony about Lockery, that the police had used Lockery to call the petitioner for the purpose of setting up a drug transaction in a location where the police could attempt to arrest the petitioner.   But Lockery did not testify that the petitioner had sold him drugs nor testify to any other conduct related to the petitioner.   Lockery was absent from the second trial and the jury heard no testimony from him at all.   Therefore the petitioner's claim that Lockery committed perjury in the first trial, even if true, is immaterial.

The second problem is that there is no evidence in the papers on summary judgment as to what the perjury of Lockery entailed.   There is a written, notarized statement from Lockery, which is in this record, but it is not admissible to prove that Lockery's former testimony was false, because the petitioner has not submitted Lockery's former testimony from the first trial to show how the statement may have been inconsistent with his trial testimony, a necessary prerequisite to proving perjury.

In the face of these obvious obstacles, the petitioner seems to shift his focus from the testimony of Lockery—absent as it was from the second trial—solely to the written statement of Lockery ² and its significance as a potential piece of evidence in the second trial.   He urges the court to consider how the second trial would have turned out differently if the written statement had been admitted.   Here the petitioner runs up against an issue already decided by the Appellate Court.  State v. Diaz, 109 Conn.App. 519, 543–48 (2008).

The Appellate Court fully analyzed the trial court's ruling excluding Lockery's written statement.   The trial court had ruled that the statement was hearsay—and that was not disputed by the petitioner—and that the only relevant exception to the bar against admission of hearsay evidence was that for a statement against penal interest, Conn.Code Evid. § 8–6(4) which states:

Hearsay Exceptions:  Declarant Must Be Unavailable

The following [is] not excluded by the hearsay rule if the declarant is unavailable as a witness:

(4) Statement against penal interest.   A trustworthy statement against penal interest that, at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true.   In determining the trustworthiness of a statement against penal interest, the court shall consider (A) the time the statement was made and the person to whom the statement was made, (B) the existence of corroborating evidence in the case, and (C) the extent to which the statement was against the declarant's penal interest.

The trial court found several reasons to exclude the written statement.   First, the court found that the contents of the statement were not, in the main, against Lockery's penal interest but were more properly a recantation of Lockery's testimony from the first trial.   Second, the court found that the defendant/petitioner had not met his burden of proving that Lockery was unavailable to testify in lieu of the written statement.   Third, the court found that the circumstances by which the written statement came to be made were so vague as to render the statement insufficiently trustworthy to be admissible.   Fourth, the court found, as to trustworthiness, that there was no corroboration for the statement.

The Appellate Court addressed each of these issues and affirmed the court's ruling.   Now, regarding his petition for new trial and for the first time at oral argument, the petitioner raises the issue of newly discovered evidence on the fourth issue above—the lack of corroboration.   The petitioner offers to submit evidence from a person named Hector Lopez, otherwise unidentified, to support the information in certain parts of Lockery's written statement.   Nowhere in any of the petitioner's papers has he raised this precise issue before.   Nonetheless assuming, for the sake of argument, that someone named Hector Lopez has come forward with evidence to corroborate certain of Lockery's written statements in a way that the petitioner, using due diligence, could not have discovered previously, the argument would run like this:

Lopez's statements would provide partial corroboration for some of Lockery's written statement, which would tip the balance of the trial court's hearsay analysis in favor of admitting the statement.   The admission of that statement would convince a jury that Lockery had previously seen the police in possession of heroin packaged in the same manner as that presented by the prosecution as the sizable quantity of heroin seized from the person and the premises of the defendant/petitioner.   This evidence would have weighted the scales in favor of an acquittal.

There is a point at which causal links cease to be matters of fact and become matters of law.   The more attenuated—that is, the less proximate—the evidence is from the result, the more likely it is that the court must say, as a matter of law, that the causal link is missing.  Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 25, 734 A.2d 85 (1999).³  And so it is here.   The train of causation cannot pull along the caboose that is the petitioner's argument.   But even more concretely, the trial court had three other separate reasons, as discussed above, for finding that Lockery's written statement was inadmissible, all of which were independent of the lack of corroboration and all of which were considered and upheld by the Appellate Court.   Lopez's statement, whatever it is, would not supply the key to admitting the Lockery statement.

The respondents have shown that the petitioner's claim of Lockery's perjury, whether one looks at it from the perspective of Lockery's prior testimony or his subsequent written statement, does not provide a set of facts that can support the petitioner's claim for a new trial.

THE INACCURACY OF DETECTIVE CHROSTOWSKI'S TESTIMONY

During the petitioner's second trial, he moved to suppress certain evidence.   The court conducted a suppression hearing outside the presence of the jury.   At that hearing Detective Chrostowski testified that he had on another occasion arrested the petitioner for involvement with illegal narcotics.   The respondents concede that Detective Chrostowski's testimony was inaccurate.⁴  The petitioner alleges that he has since been able to obtain copies of the case/incident reports of his New Britain drug arrests, and can now prove that Detective Chrostowski had not arrested the petitioner on any other occasion.   The petitioner also alleges that Mary Palmese had a copy of these case/incident reports when Detective Chrostowski was testifying so that she knew his testimony was false while he was on the stand.

Once again, leaving aside whether such a misstatement under these circumstances can fairly be characterized as perjury, it cannot reasonably be disputed that such evidence does not meet the standard as newly discovered.   The petitioner concedes that he was in court and heard the testimony of Detective Chrostowski while the detective was testifying.   If the testimony of the detective's drug arrest of the petitioner on another occasion was false, the petitioner certainly knew that at the time.   Since the petitioner was being tried on charges stemming from both arrests, he had the ability, both practical and legal, to obtain the reports of the arresting officers, so he could review which members of the New Britain Police Department were involved in each case.   See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The petitioner also presents the surprising argument that since he was represented by counsel at his second trial he was hampered in his ability to discover this evidence sooner.   The petitioner explains that he has to go along with what his attorney decides to do at trial, and is not able to make independent inquiry or investigation about such matters as pertain to the evidence that he claims is newly discovered.   The petitioner makes this argument without any factual or logical foundation;  and the argument simply makes no sense.   While the petitioner may not have had physical custody of documents that the State was obligated to turn over to the defense in his criminal trial, his attorney had access to copies of those documents.

Assuming that the testimony of Detective Chrostowski was material and false, there was nothing to prevent the petitioner from bringing that to the attention of his lawyer during the suppression hearing so that his attorney could confront the detective with the police reports that would give the lie to the detective's testimony there and then.   The newly discovered evidence standard does not permit the petitioner to sit on his rights at trial and decide later to assert those rights in a new trial petition.   And the petitioner certainly cannot hide behind the person of his courtroom advocate in claiming that he was prevented from fully exploring the inconsistencies in the evidence at the time of trial.

The petitioner also seems to be suggesting that Detective Chrostowski testified falsely at the first and second trial as to the drugs recovered from the petitioner at and after the petitioner's arrest.   The petitioner argues that, consistent with Lockery's written statement, before the petitioner's arrest, Detective Chrostowski had possession of several bags of heroin packaged in the same way that the police allege the petitioner packaged heroin.   There is simply no admissible evidence of this fact.   For reasons stated earlier, Lockery's written statement was not and is not admissible to establish a set of events different from that established in the evidence at the petitioner's second trial.   The petitioner's assertions of perjury on the part of Detective Chrostowski or Kevin Lockery remain merely bald assertions and nothing more.

There is no disputed issue of fact that the claim of perjury is entirely unsupported by any admissible evidence submitted to this court.

THE ROLE OF MARY ROSE PALMESE

The record demonstrates that State's Attorney Palmese was at all times acting in her role as a prosecutor in the proceedings involving the petitioner.   At no time did she take the witness stand;  at no time did she offer any statement under oath.⁵  To be sure, she addressed the court and jury at oral argument and argued vigorously, stating among other things that it was apparent that the petitioner was involved in the drug trade.   But there is no set of circumstances under which she can be said to have committed perjury in the petitioner's trial.

The petitioner claims that Palmese suborned perjury by allowing Detective Chrostowski to offer the false testimony that Chrostowski had arrested the petitioner for drugs on another occasion, when it was not Chrostowski but two other officers who had made the arrest.   The petitioner is particularly offended by this, arguing that Palmese had the very police report in her files that would show that Chrostowski's testimony was false.   As explained above, however, there is nothing newly discovered about this set of facts.   If Palmese had the means of knowing it was false, so did the petitioner.   And, having been present at his own arrest in April 2001, as Palmese was not, the petitioner was perhaps in a better position than Palmese to know that Chrostowski was making a misstatement.   As for the claim that Palmese presented false testimony from Lockery at the first trial, that problem was remedied by the fact that Lockery was not presented as a witness at the second trial.

THE HANDLING OF THE NARCOTICS EVIDENCE

The petitioner claims that he has discovered that the narcotics evidence was mishandled at his trial:  that one of the bags had been slit open and taped over, without the usual chain-of-custody markings on the tape.   The respondent has presented an affidavit from the Deputy Chief Clerk of the Court that he saw nothing unusual about the physical evidence, that it had been handled in the usual way and did not appear to have been tampered with.   The petitioner has presented no evidence in this record on summary judgment that any mishandling either occurred or was an issue of importance for his defense at his criminal trial.   Assuming for the sake of argument that it did occur and was somehow important to the petitioner's conviction, this alleged anomaly could have been discovered at the petitioner's criminal trial.   The petitioner, through his counsel or otherwise, was permitted to handle and examine in the courtroom each piece of evidence submitted during the criminal trial.   If there was anything unusual about the plastic bags, the petitioner was just as able as the respondents to point that out at the time.

CONCLUSION

In moving for summary judgment, the respondents have the burden of showing that there is no material disputed issue of fact as to the claims of the petitioner.   Once the respondents do so, in response to the summary judgment motion and the evidence presented in this record by the respondents, the petitioner is permitted to present his own evidence, showing that there is some disputed issue of fact that is material to the elements of his claims, such that he can prove his case at trial.

On this record, it is abundantly clear that, despite the petitioner's claims, there is no evidence that any of the new matter that the petitioner claims he has discovered since his conviction, is new, as that term is used in Asherman, supra.   Moreover, new or not, none of the evidence he now puts forward is sufficiently material to warrant a conclusion, as a matter of law, that it is likely to produce a different result in a new trial.  Id.

The respondents are entitled to judgment as a matter of law.   The Motion for Summary Judgment (# 144) is granted.

Patty Jenkins Pittman, Judge

FOOTNOTES

FN1. The petitioner also claims that Palmese committed perjury herself in her argument to the court.   It is well-settled that the arguments of counsel are not evidence and cannot constitute perjury under any circumstances..  FN1. The petitioner also claims that Palmese committed perjury herself in her argument to the court.   It is well-settled that the arguments of counsel are not evidence and cannot constitute perjury under any circumstances.

FN2. The entire text of Lockery's statement is set forth in State v. Diaz, 109 Conn.App. 519, 540 (2008)..  FN2. The entire text of Lockery's statement is set forth in State v. Diaz, 109 Conn.App. 519, 540 (2008).

FN3. As the Supreme Court said in Paige, “In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice [citations omitted].”  Id., 25..  FN3. As the Supreme Court said in Paige, “In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice [citations omitted].”  Id., 25.

FN4. The petitioner had in fact been arrested in New Britain before, just not by Detective Chrostowski.   In April 2001, one month after the petitioner's arrest in this case, the petitioner was the subject of another narcotics-related arrest by the New Britain Police Department.   That arrest, like the one in this case, resulted in a criminal conviction, but Detective Chrostowski was not directly involved in that arrest.   See State v. Diaz, 86 Conn.App. 244, 860 A.2d 791, cert. denied, 273 Conn. 908, 870 A.2d 1081 (2005)..  FN4. The petitioner had in fact been arrested in New Britain before, just not by Detective Chrostowski.   In April 2001, one month after the petitioner's arrest in this case, the petitioner was the subject of another narcotics-related arrest by the New Britain Police Department.   That arrest, like the one in this case, resulted in a criminal conviction, but Detective Chrostowski was not directly involved in that arrest.   See State v. Diaz, 86 Conn.App. 244, 860 A.2d 791, cert. denied, 273 Conn. 908, 870 A.2d 1081 (2005).

FN5. The court instructed the jury that the arguments of counsel were not evidence.   Exhibit G to Respondents' Motion for Summary Judgment, T. of petitioner's criminal trial, March 31, 2006, p. 12..  FN5. The court instructed the jury that the arguments of counsel were not evidence.   Exhibit G to Respondents' Motion for Summary Judgment, T. of petitioner's criminal trial, March 31, 2006, p. 12.

Pittman, Patty Jenkins, J.